Mitter Brothers Vs. the State of Andhra Pradesh - 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. obul reddi, c.j.1. this revision is directed against the order of the sales tax appellate tribunal, in tribunal appeal no. 34 of 1976 dated 30th march, 1976, partly dismissing the appeal preferred by the assessee. the case of the assessee here and before the tribunal was that all the transactions are covered by valid c forms and, therefore, the turnovers covered by these transactions should be subjected to tax at 3 per cent and not at 10 per cent. the dispute in this revision is regarding the differential rate of tax. we are concerned with items 2, 4, 6 and 7 referred to in the order of the tribunal.2. the assessee is a firm known as messrs. mitter brothers, pendurthi. the firm is a dealer in rock phosphate and it effected inter-state sales of rock phosphate. during the year 1969-70, the indian iron and steel corporation ltd. placed several orders with the assessee-firm for supply of rock phosphate. in so far as items 2 and 4 are concerned, the steel corporation first placed an order dated 3rd april, 1969, followed by an amendment of the said order for 1,700 metric tons. the assessee supplied 1,055.720 metric tons and submitted c forms for that transaction. the turnover of the material supplied under several consignments came to rs. 2,04,310.30. in the same year, it supplied 8 more consignments valued at rs. 1,43,893.61, the quantity of which is 733.125 metric tons. for the total supply of 1,788.845 metric tons, it submitted two c forms. it was found that when the steel corporation had placed an order for supply of 1,700 metric tons, the assessee had supplied in excess of that order 88.845 metric tons of rock phosphate. under item 2, the assessee supplied 116.470 metric tons. the supply made by the assessee ander the two items was valued by the department at rs. 28,242,34. it is for the reason that in respect of the excess quantity of rock phosphate supplied it was not covered by c forms that it was held that the turnover relating to this quantity is not exigible to tax under the concessional rate of 3 per cent. it may be seen from the facts stated above that the quantity found in excess was only 88.845 metric tons when compared to the total quantity supplied. the order of the steel corporation was for supply of 1,700 metric tons. while loading into the wagons, there is bound to be some overloading for fear that there might be short supply. what has to be seen is whether the supply of rock phosphate was made pursuant to the two contracts or whether, in addition to the two contracts, the assessee had entered into another contract for supply of the excess quantity of 88.845 metric tons. it does not appear from the facts stated that this small quantity of excess of 88.845 metric tons was the result of another contract not covered by the contracts in question. we are, therefore, of the opinion that the slight margin cannot lead to the conclusion that this excess quantity was supplied pursuant to a contract not covered by the contracts in question. we, therefore, hold that the assessee is entitled to claim concessional rate of tax in respect of the turnover of rs. 28,242.34.3. item 6, in our opinion, stands almost on par with items 2 and 4. all that has happened here also was that supplies were made in excess of the contracted quantity. the contract was for supply of an approximate quantity of 1,000 metric tons of rock phosphate and what was supplied was 1,181.520 metric tons of rock phosphate in 13 consignments against c form. it should be borne in mind that the contract only provides for an approximate quantity and not for any definite quantity. that being the case, the tribunal erred in holding that the turnover of rs. 1,81,381.30 alone is liable to tax at the concessional rate of tax at 3 per cent.4. as regards item 7, we are unable to agree with the learned counsel, sri anantha babu, that this transaction also is similar to the transactions covered by items 2, 4 and 6. it may be seen here that the assessee supplied 1,252.920 metric tons, the cost of which was rs. 2,06,246.70 against c form. the order placed by the company for supply of rock phosphate was for only 500 metric tons. subsequently, it is said that further orders were placed for the remaining quantity supplied by the assessee. the assessee did not place any material before the authorities below to show that the excess quantity of rock phosphate supplied was also covered by the order in respect of which the assessee filed c form. it, therefore, transpires that the assessee had supplied 500 tons of rock phosphate valued at rs. 74,628.99 in accordance with the terms of the contract. the tribunal held that this turnover is liable to be taxed at the concessional rate of tax at 3 per cent. the tribunal rightly rejected the claim of the assessee for taxing the balance of the turnover at the concessional rate and we see no reason to interfere with its .finding.5. in the result, the revision is allowed in so far as the turnover in dispute covered by items 2, 4 and 6 is concerned and dismissed in respect of the turnover in dispute covered by item 7. the parties will bear their own costs, advocate's fee rs. 200.