S.M. Brothers Vs. Deputy Commissioner of Commercial Taxes, Hyderabad Division-i and ors. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - the cases would therefore fairly and squarely fall under section 14(4) and, therefore, the bar of limitation under section 14(4-a) would clearly apply to writ petitions nos.b.j. divan, c.j.1. the principal question in each of these four writ petitions is whether seat covers are accessories or not. it is clear in the light of the decision of the supreme court in a.c. industries v. state of andhra pradesh a.i.r. 1976 s.c. 1418, that the term 'accessories' in the schedule to the andhra pradesh general sales tax act is used to describe goods which may have been manufactured for use as an aid or addition. 'accessories' are not necessarily confined to particular machines for which they may serve as aids. the same item may be an accessory of more than one kind of instrument. the deciding factor is the predominant or ordinary purpose or use. it is not enough to show that the article can be put to other uses also. it is its general or predominant user which determines the category in which an article will fall. in view of the decision of the supreme court it is clear that seat covers will also be 'accessories' and since powers of revision have been utilised to bring the turnover in respect of these seat covers to tax, it cannot be said that revisional powers have been wrongly utilised by the commissioner.2. this conclusion would ordinarily dispose of each of these writ petitions. however, in writ petitions nos. 4570 and 4659 of 1975, it is contended by the learned advocate for the petitioner in each of these petitions that over and above powers exercisable under section 20, being revisional powers, the officer concerned has utilised powers under section 14(4) of the andhra pradesh general sales tax act. he contends that under section 14(4), inter alia, if the dealer has been assessed at a rate lower than the correct rate, then under clause (c), the officer concerned can assess at the correct rate the turnover that has been assessed at a lower rate. he contended that, in the instant case, the powers that have been exercised are powers under section 14(4)(c) and not the power under section 20. it is obvious that if the case falls under section 14(4), the orders would be time-barred because under section 14(4-a) assessment under section 14(4) has to be made within a period of four years from the expiry of the year of assessment. the year under consideration was the assessment year 1969-70 and the notice for reopening the case was issued on 9th june, 1975. in writ petition no. 4659 of 1975, the assessment year is 1970-71 and the notice was issued in june, 1975. it is contended that since the period of 4 years in each of these two cases had expired after the end of the year of assessment under consideration, that is, after the expiry of 1st april, 1974, in writ petition no. 4570 of 1975 and 1st april, 1975, so far as writ petition no. 4659 of 1975 is concerned, bar of limitation under section 14(4-a) would apply and, at any rate, orders passed increasing the tax after this notice in these writ petitions nos. 4570 and 4659 of 1975 should be held to be time-barred.3. in view of the decision in state of a.p. v. sri rama l.s. rice mill [1975] 35 s.t.c. 601, it is obvious that, in the instant case, the reopening would fall under section 14(4) because at the time when the matter was originally before the sales tax officer, he had not considered whether the seat covers were accessories or not and that question was not agitated before him. under these circumstances, it cannot be said that the decision of the sales tax officer was wrong which needed revision or which can be revised under section 20 of the a.p. general sales tax act. the cases would therefore fairly and squarely fall under section 14(4) and, therefore, the bar of limitation under section 14(4-a) would clearly apply to writ petitions nos. 4570 and 4659 of 1975 and they are, therefore, allowed with costs in each of the two cases. the other two matters, writ petitions nos. 4689 and 4693 of 1975, are dismissed with costs.