State of Andhra Pradesh Vs. Radiant Engineering Co. - Court Judgment

Excerpt:
sales tax - classification - sections 5 (1), 20 (2) and 22 of andhra pradesh general sales tax act, 1957 - tribunal treated pvc granules and insulated copper wire as unclassified items and taxed under section 5 (1) - order of tribunal challenged - pvc granules did not fall within meaning of entry 88 - pvc granules taxable under section 5 (1) in case entry 88 not attracted - tribunal did not reach any conclusion as to whether wire supplied by assessee was insulated wire or bare wire - order of tribunal confirmed so far as pvc granules concerned - matter regarding insulated copper wire remitted back for consideration. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - [1971] 28 stc 84, a division bench of our high court, for the purpose of entry 37, schedule i, considered the meaning of the expression 'electrical goods'.having pointed out that the expression 'electrical goods' has not been defined in the act and neither the act nor the rules made thereunder had laid down any test to be satisfied before any given article could be brought within the scope of entry 37, it was observed :the expression 'electrical goods',of course, as already stated, is not defined in the act or the rules. this principle is well-recognised and has been followed by the supreme court in several cases'.10. in common parlance when copper wire is insulated, it will be used as an electrical goods.syed shah mohammad quadri, j.1. in these revisions by the state, under section 22 of the andhra pradesh general sales tax act, 1957 (for short 'the act'), classification of two items in the first schedule falls for consideration. the first item is pvc granules and the second item is insulated copper wire. the assessing authority treated them as unclassified items and taxed them under section 5(1) of the act. on revision, the deputy commissioner, in exercise of the revisional power under section 20(2) of the act, set aside the order of the assessing authority and classified pvc granules under entry 88 of the first schedule and the insulated wire under entry 38 of the first schedule. on appeal by the assessee-respondent to the sales tax appellate tribunal, the order of the deputy commissioner was reversed and that of the assessing authority was confirmed treating both the items taxable under section 5(1) of the act. the tribunal thus allowed three appeals of the assessee for the assessment years 1974-75, 1975-76 and 1977-78 by its common order, dated november 21, 1985. the correctness of this order is assailed in these revisions. as these revisions relate to the same assessee, relating to three different assessment years, arising out of a common question of fact and raising same question of law, we have heard them together and are disposing of by this common order. 2. the learned government pleader contends that pvc granules are also included within the meaning of pvc articles; therefore, they are to be classified under entry 88. 3. mr. y. ratnakar, learned counsel for the assessee-respondent, on the other hand, supports the order of the tribunal and submits that when the legislature intended the raw material also to be included within the meaning of entry 88, it specifically stated thus, but, in the instant case, raw material is not included in the entry and pvc granules being raw material cannot be brought under entry 88. 4. to appreciate the contentions of the learned counsel for the parties, it would be useful to read entry 88, which is in the following terms : ------------------------------------------------------------------------s. no. description of goods point of levy rate of tax------------------------------------------------------------------------88 articles of pvc materials. at the point of 9 paise in thefirst sale in rupee.the state.------------------------------------------------------------------------5. entry 88 deals with articles of pvc materials. the other entries which are brought to our notice are : entries 43, 54 and 89; entry 43 deals with 'marble and marble articles'; entry 54, which, during the relevant period, read as 'stainless steel and articles of stainless steel' and entry 89 refers to 'furs and articles thereof'. it is clear that in these entries raw material is also included. in contrast with these entries, a reference is made to entry 119 of the first schedule, which speaks of 'articles of ivory and of sandalwood'; entry 21 deals with 'articles and jewellery made of bullion or specie or both excluding precious stones'. we may point out here that bullion and specie are taxable under entry 20. thus, the legislative intent is clear; wherever the prime form of the material was also sought to be taxed under an entry, the legislature included it in that entry as it is evident from the entries referred to above. therefore, it follows that pvc granule, which is a prime form of pvc, does not fall within the meaning of entry 88. 6. it is the common case that if entry 88 is not attracted, pvc granules are taxable under section 5(1) of the act. in this view of the matter, we confirm the order of the tribunal so far as pvc granules are concerned. 7. now turning to insulated copper wire, the question is - whether it falls under entry 38 or is it taxable under section 5(1) of the act entry 38, in so far as it is relevant for our purpose reads as follows : ------------------------------------------------------------------------s. no. description of goods point of levy rate of tax------------------------------------------------------------------------38 all kinds of electrical at the point of 8 paise ingoods, instruments, first sale in the rupee.apparatus and appliances the state.([the expression 'otherthan those specificallymentioned elsewhere' wassubstituted by act 4 of1989 with effect fromfebruary 15, 1989.] otherthan those specificallymentioned elsewhere)([the word 'including'was substituted for thewords 'that is to say',by act 11 of 1984 witheffect from july 8, 1983.]including) -(i) wires, holders, plugs,switches, electricalearthenware andporcelain-ware;(ii) to (v) ............------------------------------------------------------------------------8. entry 38 deals with all kinds of electrical goods. 9. in state of andhra pradesh v. indian detonators ltd. [1971] 28 stc 84, a division bench of our high court, for the purpose of entry 37, schedule i, considered the meaning of the expression 'electrical goods'. having pointed out that the expression 'electrical goods' has not been defined in the act and neither the act nor the rules made thereunder had laid down any test to be satisfied before any given article could be brought within the scope of entry 37, it was observed : 'the expression 'electrical goods', of course, as already stated, is not defined in the act or the rules. in the absence of any specific meaning given to it in the act we have to necessarily construe it and understand the same in the sense it is used in common parlance. this principle is well-recognised and has been followed by the supreme court in several cases'. 10. in common parlance when copper wire is insulated, it will be used as an electrical goods. that it is so is admitted by the respondent-assessee itself. this can be seen from the order of the deputy commissioner when he pointed out, 'bare wire cannot be sued as an electrical wire because of obvious reasons'. they also stated that 'the wire must be insulated in order to come under electrical goods'. but, according to their letter, dated february 27, 1976, available at page 123 of the assessment file, they supplied insulated copper wire and not the bare wire. but now they have stated that they have supplied bare wire without giving any evidence to this effect. 11. the tribunal, in the order under revision, referred to the same letter, but did not reach any conclusion as to whether the wire supplied by the assessee was insulated wire or bare wire. having regard to the wording of entry 38, we are inclined to take the view that if what is supplied is an insulated wire, it would be within the meaning of 'electrical goods' and would fall under entry 38(i); but if what wads supplied was bare wire it could not be brought within entry 38(i) and would, therefore, be taxable under section 5(1) of the act. 12. as there is no definite finding by the tribunal as to what was supplied; whether it was insulated wire or bare wire, we consider it appropriate to set aside the order of the tribunal on this aspect and remit the matter to the tribunal to determine as to whether the goods supplied by the assessee was insulated wire or bare wire. 13. the revision cases are accordingly disposed of. no costs. 14. petitions disposed of accordingly.