The State of Andhra Pradesh Vs. Pottimurthy Subbarao and Co. - 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. - 138 at 142. lest it might be understood that there might be apparent conflict on this aspect of the matter, we might as well extract the following passage from the latter decision, which occurs at page 142: we think that all the deeming and adding can and should be avoided by literally construing the word 'miller' to signify a person functioning as a miller, that is to say, who converts groundnuts into oil.a. sambasiva rao, c.j.1. the point that is raised in this tax revision case, preferred by the revenue, is very simple. it relates to the meaning of the word 'miller' used in item 6 of the third schedule of the andhra pradesh general sales tax act.2. the assessee purchased groundnut and got it decorticated. however, they (the assessee-firm) did not own any groundnut mill, nor are they lessees of any such mill. they only got the groundnuts decorticated in other mills. part of the groundnut they got crushed into oil in some mill, which would be engaged for individual transactions on hire. to the extent that they got the groundnut crushed into oil and cake they have already been assessed and the tax has been paid separately by them. now the dispute is about the turnover in respect of the sales of remaining groundnut kernel effected by them to other millers in the state in the form of groundnut kernel itself. the assessing authority and the appellate authority levied tax on this latter turnover treating the assessee as 'miller' within the meaning of item 6. the assessee's contention is that it is not a miller because it does not own any mill nor has it hired anyone. its contention was upheld by the tribunal and, consequently, the revenue has preferred this tax revision case.3. the material entry, which relates to levying tax on groundnut, is item 6 of the third schedule to the act. it reads:groundnut or peanut. when purchased by a miller other than a decorticating miller in the state at the point of purchase by such miller and in all other cases at the point of purchase by the last dealer who buys in the state.4. it was admitted before the tribunal and also before us and, in fact, even by the assessing authority and the appellate authority that the case of the assessee does not come under the second limb of the above item no. 6. the department seeks to assess him as a miller. the question in the circumstances stated above is whether the assessee is a miller.5. the expression 'miller' is not defined in the act. the dictionary meaning of 'miller' is one who owns or works a mill either as a tenant or a proprietor. that is also the meaning accepted by two division benches of this court in state of andhra pradesh v. lakshmi oil mills [1967] 20 s.t.c. 489 and madar khan & co. v. assist-ant commissioner, a.i.r. 1971 a.p. 138 at 142. lest it might be understood that there might be apparent conflict on this aspect of the matter, we might as well extract the following passage from the latter decision, which occurs at page 142:we think that all the deeming and adding can and should be avoided by literally construing the word 'miller' to signify a person functioning as a miller, that is to say, who converts groundnuts into oil.5. therefore, there is no doubt that a miller, as it is used in item 6 of the third schedule, is a person, who owns or works a mill either as a tenant or as a proprietor. as far as the present assessee is concerned, he neither owns a mill nor takes a mill on lease. the assessee just engages a crushing mill on occasions for crushing a part of his groundnut kernel. he cannot therefore be treated as a 'miller' within the meaning of item 6. this conclusion is further supported when we read the word 'miller' in conjunction with the following words: 'other than a decorticating miller'. thus, the view taken by the tribunal that the assessee does not come under the first limb of item 6 also is quite right.6. in the result, we uphold its decision and dismiss this tax revision case, preferred by the revenue, with costs. advocate's fee rs. 150.