P L D 1960 Dacca 292 (PLP)

6. Mr. Aziz for the assessee relies on the proviso to sub section (1l) of section 2 of the Act, as it was also done, it seems, before the authorities below, and argues that inasmuch as the materials were supplied by the Government and the goods made by the assessee were for the use of the Government, the Govern ment should be deemed to be the manufacturer and not the assessee. It is claimed that all that the assessee did was to put into shape by their labour the materials supplied by the Govern ment and the assessee did so as employees of the Government, i.e., employees for the purpose only of making the ballot boxes with the materials supplied by the Government. 6‑A. Mr. Mesbahuddin, who appears for the Government, points out that the assessee is a licensed manufacturer under section 8 of the Act and admittedly this firm of Messrs Metal Products of 144, Nawabpur Road, Dacca, has got a licence for manufacturing and producing goods. Mr. Aziz does not deny this but what he urges is that this firm of Messrs Metal Products has got the licence as required by section 8 of the Act in respect of all the goods manufactured by it, and not in respect of the ballot boxes in question. Thereafter we put it to Mr. Aziz whether in that event, his client, as a licensed manufacturer, produced the relevant quarterly returns before the sales‑tax authorities to substantiate that these ballot boxes were not included in the return of the material period. We do not find any return from the record to show that they were or they were not included in the return except that Mr. Aziz tells us verbally that they were not included in the return. We cannot go by such an oral statement, and, if what the learned Advocate states is correct, the return should have been placed by the assessee before the taxing authorities.

7. As to the proviso to subsection (11) of section 2 of the Act, it has been argued by Mr. Mesbahuddin that the proviso does not help the assessee inasmuch as, although the goods were manufactured for the use of the Government, these were not for sale by the Government and, therefore, the incidence of the tax must fall on the assessee who manufactured or produced the same.

8. The relevant portion of subsection (11) of section 2 of the Act runs as follows: " manufacturer or producer' means a person who engages, whether exclusively or not, in the manufacture of goods, and includes a printer, publisher, lithographer or engraver, and also any person (not being an employee) who manufactures goods, whether or not the materials of which the goods are manufac tured are owned by him: "Provided that where one person manufactures goods for another, wholly or in part, out of materials supplied by that other, and the goods are not for the use of, but are for sale by that other, the person supplying the materials shall be deemed to be the manufacturer . . . . . . ."

9. Mr. Aziz, however, still argues that these ballot boxes were not sold by the assessee to the Government. "Sale" is defined in subsection (15) of section 2 of the Act as follows: 'sale', with all its grammatical variations and cognate expressions, means every transfer of the property in goods from one person to another in the course of trade or business for cash or for deferred payment or other valuable con sideration."

10. In our opinion, there is no substance in the arguments advanced by the learned Advocate for the assessee. The words "manufacturer or producer" and "sale", as defined in sub sections (11) and (15), respectively, of section 2 of the Act, are very comprehensive and cover almost every type of makers of goods ; even printers and publishers or even manufacturers of unfinished goods are covered by these terms, and the only exception that is provided is the case of an employee manufacturer and that has been provided irrespective of the fact whether the materials out of which the goods are manufactured are owned by the manufacturer or not. For the application of the proviso to subsection (11) of section 2 of the Act, two conditions must do‑exist : firstly, that the materials should be supplied by another, and, secondly, that the manufactured goods are not for the use of, but for the sale by, that other i.e., by the supplier of the materials. So, in our opinion, as, in the present case, these two conditions have not bean fulfilled, the assessee cannot rely on the said proviso. Besides, in the relevant correspondence set out above, it was expressly stated that the assessee was to manufacture the ballot boxes for a fixed consideration and never in its reply the assessee protested and said that the assessee was only to supply labour and not to manufacture the ballot boxes. Besides, in the definition of "sale" in subsection (15) of section 2 of the Act, it will also be noticed that "sale" means any transfer of property in goods from one person to another for cash or for any other valuable consideration. There is no gainsaying that the assessee parted with the ballot boxes, after making them, for Rs. 6‑8‑0 per ballot box. Therefore, it is covered by the definition of sale.

11. Mr. Aziz has also tried to establish that the tax cannot be charged in view of the provisions of section 3 of the Act. We fail to appreciate his argument in this respect also, for, section 3 clearly states that the tax shall be levied and collected on the value of the goods manufactured or produced.

12. The learned Advocate for the assessee has also at one stage relied on the provisions of section 31 of the Act. This section runs thus: "When the ownership of the business of a licensed manufac turer or a licensed wholesaler is transferred, any tax payable in respect of such business remaining unpaid at the time of the transfer shall be payable by the transferee, as if he were the licensed manufacturer or licensed wholesaler." This argument seems to be entirely misconceived and has absolutely no bearing on the point in issue. The argument relating to this section not only does not help the assessee but also goes against the assessee. Section 31 of the Act only enables an assessee to escape from the payment of sales‑tax in case he transfers the ownership of the business of a licensed manufacturer to another person before the tax is paid and thereafter the transferee is liable to pay the tax instead of the transferor. This presupposes that the assessee is the owner of the business of a licensed manufac turer in respect of the ballot boxes and that the assessee has transferred the ownership of the business to someone else ; but that is nobody's case here, and once the assessee ' admits that he owns the business of a licensed manufacturer which manufactured these ballot boxes, there is no escape from the payment of the sales‑tax unless he can establish that he transferred the ownership of this business to another.

13. So, for the reasons stated above, we answer this reference in the affirmative that, on the facts and circumstances of the case, the assessee is a manufacturer or a producer under section 2 (11) of the Sales Tax Act of the ballot boxes in question.

14. We would have awarded costs against the assessee but we refrain from doing so, as already indicated, we are not at all satisfied with the way in which the papers have been printed in the paper‑book and also that we have not got much assistance from the taxing authorities. CHAKRABORTI, J.‑I agree with my lord the Chief Justice. K. B. A. Reference answered in affirmative.