Meat Products of India Ltd. Vs. State of Kerala - Court Judgment

Excerpt:
sales tax - interpretation - section 5a of kerala general sales tax act, 1963 - whether petitioner liable to pay purchase tax under section 5a on purchase of cattle sheep and pigs - in view of apex court decision living animals and meat obtained after slaughtering them no longer treated as one and the same commodity - sale of such animal attracts liability to tax. - kerala buildings (lease & rent control) act, 1965.[ker. act no. 2/1965]. section 15:[j.b. koshy, a.k. basheer & k.p. balachandran, jj] eviction suits under applicability of principles of res judicata or constructive res judicata contention that the finding that there is no landlord-tenant relationship became final and the above finding will act as res judicata or at least constructive res judicata held, the basic principle of res judicata is that cause of action for second suit being merged in first suit, it does not survive any more. the finding in the earlier suit under section 11 (2) on grounds of arrears of rent being dismissed with finding that there is no landlord tenant relationship and no rent was paid, and also upheld in appeal, will act as res judicata in subsequent suit under section 11 (2) in view of section 15 of the act. - ismail's case [1986] 62 stc 394. the tribunal also distinguished the decision of the supreme court in sterling foods' case [1986] 63 stc 239 by taking the view that the supreme court in the said case was concerned with the question whether shrimps, prawns and lobsters subjected to processing like cutting of heads and tails, peelings, cleaning and freezing cease to be the same commodity and become a different commercial commodity for the purpose of exemption under section 5(3) of the central sales tax act, 1956. the tribunal also noted that the supreme court in the above decision had quoted with approval the observations of the american supreme court that dressed and frozen chicken is not a commercially distinct article from original chicken and by drawing this analogy the supreme court held that frozen shrimps, prawns and lobsters cannot be regarded as commercially different commodity from raw shrimps, prawns and lobsters. joint excise and taxation commissioner [1976] 37 stc 527. the counsel also submitted that all the authorities, while holding that section 5a of the act is attracted, failed to consider a fundamental question as to whether the main part of section 5a, i. , the sale or purchase of the goods is liable to tax under the act and in circumstances in which no tax is payable under section 5. the counsel submits that it is only after being satisfied that the goods which are purchased, are liable to tax under the act and no tax is payable under section 5, in certain circumstances other questions contained in clause (a), (b) or (c) arises. ismail's case [19861 62 stc 394 has clearly held that the purchase of livestock like goat and sheep and its conversion by slaughtering the animals amounts to manufacture and that in the process all the conditions of section 5a are attracted. it was observed that if a person goes to a butcher's shop and asks for mutton he will not be given goats nor will he be satisfied with goats and further when he intends to purchase goats he will not be satisfied if mutton is supplied to him. it was further observed that in order to attract section 5a, two other ingredients are also to be satisfied, namely, consumption and manufacture. a chicken killed and a dressed chicken are both chicken and both are known to the ordinary man as well as commercial world as chicken. they are clearly the same goods. the supreme court referred to the well-settled principles regarding interpretation of items in statutes like the sales tax acts whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances and observed that resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, i. it must be noted that clause 14(a) of the scale indicated in assam gazette extracted above would clearly indicate that the contractor has to slaughter the meat on hoof under customary rights prevalent in the unit at his own expense and after the carcass has been dressed and wiped down it will be hung for 3 to 6 hours according to the season of set, and thereafter the dressed out meat will be duly weighed and supplied to the supply points/stations as per demand and further if the supply of meat is in the form of live animals the payments will be only the half weight of live animals, i. these clauses would clearly indicate that the agreement between the parties was one for supply of meat alone. that apart it is seen from the assessment order as well as from the tribunal's order, (para 24) that the petitioner had not sold meat alone but also sold hides and skins and bone-meal. it is its further case that nobody had considered whether the turnover of sale of goat, sheep and pig had suffered tax at the hands of the sellers, which is a circumstance to be satisfied for attracting section 5a of the act. in this case, the tribunal has proceeded only on the basis that since the purchases were from unregistered dealers, the purchases become liable to tax if one or other of the conditions specified in clauses (a), (b) or (c) is satisfied. if the said contention is accepted then the sellers of livestock like sheep, goat and pig are not liable to pay tax on the sales turnover of live stock in view of the general exemption granted to the sale turnover of meat under notification s.g. sivarajan, j.1. the matter arises under the kerala general sales tax act, 1963 (for short, 'the act'). the same assessee is the petitioner in all these cases. the assessment years concerned are 1977-78, 1978-79, 1979-80, 1983-84, 1986-87, 1987-88, 1988-89 and 1989-90 respectively. the kerala sales tax appellate tribunal, additional bench, ernakulam had disposed of a batch of appeals filed by the petitioner and by the state by a common order dated january 29, 2001. the present revisions arise from t.a. nos. 627 of 1995, 911 of 1996, 547 of 1990, 321 of 2001, 601 of 1995, 79 of 1996, 260 of 1996 and 548 of 1990 respectively of which t.a. no. 321 of 2001 which is the subject-matter of t.r.c. no. 292 of 2002 was disposed of by a separate order dated september 13, 20.01 following the common order of the tribunal in the other cases.2. the question that arises for consideration in all these cases is as to whether the petitioner is liable to pay purchase tax under section 5a of the act on the purchase turnover of catties, sheep and pigs.3. the petitioner is a state government undertaking carrying on the business in the sales of livestock and meat and is an assessee on the files of the assistant commissioner, special circle iii, ernakulam. in the assessment for the years under consideration the petitioner in its returns, inter alia, claimed non-liability to tax under section 5a of the act in respect of the purchase turnover of goat, sheep, pig, etc. this claim was made on the basis that the conversion of animals into meat by slaughtering does not involve any manufacturing process attracting the provisions of section 5a(1)(a) of the act. the assessing authority had rejected the said contention based on the decision of the supreme court in deputy commissioner of sales tax v. am. ismail [1986] 62 stc 394. in the appeals filed by the petitioner before the deputy commissioner (appeals), ait and st, ernakulam, the petitioner contended that the live goat, sheep, pig and its meat are one and the same commodity and since meat is exempted from payment of tax under the notification s.r.o. no. 342 of 1963, the petitioner is not liable to pay tax under section 5a of the act. the petitioner also relied on the decisions of the supreme court in sterling foods v. state of karnataka [1986] 63 stc 239 and deputy commissioner of sales tax (law) v. mohammad ali [1993] 90 stc 174. the first appellate authority had granted relief in respect of the purchase turnover of chicken relying on the decision in sterling foods' case [1986] 63 stc 239 (sc). however, the first appellate authority agreed with the assessing authority in respect of the other items. in the appeals filed before the tribunal the assessee contended that the conversion of animals into meat by slaughtering does not involve any manufacturing process and therefore section 5a is not attracted. the tribunal observed that this question is no more res integra in view of the decision of the supreme court in a.b. ismail's case [1986] 62 stc 394. the tribunal also distinguished the decision of the supreme court in sterling foods' case [1986] 63 stc 239 by taking the view that the supreme court in the said case was concerned with the question whether shrimps, prawns and lobsters subjected to processing like cutting of heads and tails, peelings, cleaning and freezing cease to be the same commodity and become a different commercial commodity for the purpose of exemption under section 5(3) of the central sales tax act, 1956. the tribunal also noted that the supreme court in the above decision had quoted with approval the observations of the american supreme court that dressed and frozen chicken is not a commercially distinct article from original chicken and by drawing this analogy the supreme court held that frozen shrimps, prawns and lobsters cannot be regarded as commercially different commodity from raw shrimps, prawns and lobsters. the tribunal however noted that slaughtering of animals and conversion of it into meat is different from processing of raw shrimps and prawns. the tribunal ultimately held that the authorities below were justified in levying tax under section 5a of the act in the instant case. 4. sri t.m. sreedharan, learned counsel appearing for the petitioner in all these cases admitted that the question whether the conversion of animals--goat, sheep, pig, etc--into meat will amount to manufacture for the purpose of levy of tax under section 5a of the act, was considered by the supreme court in 'a.b. ismail's case [1986] 62 stc 394 and held that it does. however, the counsel submits that the present case is covered by an earlier decision of the supreme court in chiranjit lal anand v. state of assam [1985] 60 stc 89. the counsel submits that meat is an exempted commodity under s.r.o. no. 342 of 1963, that what the petitioner had purchased are the catties, goat, sheep, pig, etc., by weight only for the purpose of converting them into meat and therefore such purchase should be understood only as purchase of meat. the counsel in support of the above has relied the purchase bills and the certificate issued by sellers, most of them are government owned corporations. counsel submits that the decision of the supreme court in chiranjit lal anand's case [1985] 60 stc 89 applies to the facts of the present case. the counsel also relied on the decision of the supreme court in daffadar bhagat singh & sons v. joint excise and taxation commissioner [1976] 37 stc 527. the counsel also submitted that all the authorities, while holding that section 5a of the act is attracted, failed to consider a fundamental question as to whether the main part of section 5a, i.e., the sale or purchase of the goods is liable to tax under the act and in circumstances in which no tax is payable under section 5. the counsel submits that it is only after being satisfied that the goods which are purchased, are liable to tax under the act and no tax is payable under section 5, in certain circumstances other questions contained in clause (a), (b) or (c) arises. the counsel submits that in the instant case the purchase turnover of sheep, goat, pig, etc., are not liable to tax under the act in view of the exemption granted under section 10 of the act in the notification s.r.o. no. 342 of 1963 and the counsel further submitted that the petitioner had purchased most of the items from government owned corporations after paying tax and from other unregistered dealers whose turnover exceed the non-taxable limit. the counsel accordingly submitted that section 5a of the act is not attracted to the petitioner's transaction of purchase of sheep, goat, pig, etc. the counsel in support of the said contention relied on the decisions of this court in kerala premo pipe factory ltd. v. state of kerala [1984] 57 stc 84 and in deputy commissioner of sales tax (law) v. s.k. articles [1987] 64 stc 411. the counsel also sought to make a distinction at least in respect of pigs by applying the principles laid down by the supreme court in sterling foods' case [1986] 63 stc 239. the counsel submitted that even by applying the principles laid down by the supreme court in a.b. ismail's case [1986] 62 stc 394 the turnover of the meat of pig is not liable to be assessed under section 5a of the act.5. the learned government pleader appearing for the respondent/state on the other hand submitted that the contention of the counsel for the petitioner that what they have purchased is only the meat of the animals is not correct on their own showing. the government pleader took us to annexure d6 document produced along with ia. no. 645 of 2003 in t.r.c. no. 202 of 2002. the government pleader also submitted that the contention of the counsel that the petitioner had only purchased meat of the animals is not correct as is evident from the assessment order itself. even in the very return. filed by the petitioner, the petitioner had included the turnover of cowdung, bone-meal, etc., which would show that the petitioner had not only purchased meat but also other parts of the animals. the government pleader further submitted that the supreme court in a.b. ismail's case [19861 62 stc 394 has clearly held that the purchase of livestock like goat and sheep and its conversion by slaughtering the animals amounts to manufacture and that in the process all the conditions of section 5a are attracted. the government pleader also submitted that the supreme court in subsequent decisions had also followed the decision in a.b. ismail's case [19863 62 stc 394. the government pleader further submitted that the question regarding the exigibility of tax under section 5a was considered by the supreme court in hotel balaji v. state of andhra pradesh [1993] 88 stc 98 ; (1993) 1 ktr 231 and further the scope and object of the said section was considered by the supreme court again in aspinwall and co. ltd. v. commissioner of income-tax [2002] 125 stc 101. the government pleader further submitted that there is no merit in the contention of the petitioner that the authorities and the tribunal had not considered the applicability of the main part of section 5a. he took us to the assessment orders and the orders of the two authorities and submitted that the petitioner has not put forward any such case before the said authorities and hence there is no case of application of the decisions rendered by this court in kerala premo pipe factory ltd. v. state of kerala [1984] 57 stc 84 and in deputy commissioner of sales tax (law) v. s.k. articles [1987] 64 stc 411 relied on by the counsel. the government pleader accordingly submitted that there is no merit in these revision petitions and they have to be dismissed.6. the following facts are not in dispute. the petitioner is a state government undertaking, carrying on the business in the sale of livestock and meat. during the assessment years in question the petitioner had purchased goat, sheep, pig, etc., from various dealers and other persons. the petitioner had converted the said animals by slaughtering them and the meat was sold as such or in different forms. similarly, the petitioner had also sold cowdung and bonemeal, etc., which were obtained from the catties and in the extraction of meat by slaughtering the animals. the contention of the counsel for the petitioner is that the petitioner wanted only the meat of the animals and they have contracted with the sellers of animals only for sale of meat which is evident from the purchase bills and the certificate issued by the vendors. in other words, the contention is that the contract between the petitioner and its sellers was only for sale of meat and not animals. it is also its contention that meat is an exempted commodity under notification s.r.o. no. 342 of 1963 and therefore the provisions of section 5a is not attracted. as already noted, counsel for the petitioner admitted that the conversion of animal by slaughtering it into meat and other products will amount to manufacture as per the decision of the supreme court in a.b. ismail's case [1986] 62 stc 394. however, the attempt of the counsel for the petitioner is only to distinguish the said decision based on the facts and circumstances of the present cases, i.e., the purchase bill, certificate, etc. according to the counsel, the decision of the supreme court in daffadar bhagat singh & sons' case [1976] 37 stc 527 and in chiranjit lal anand's case [1985] 60 stc 89 would apply on the facts of this case. the decision of the supreme court in sterling foods' case [1986] 63 stc 239 was also pressed into service.7. let us now consider the question as to whether the conversion of animals by slaughtering into meat will amount to manufacture attracting the provisions of section 5a of the act.8. a division bench of this court had occasion to consider this question in a.b. ismail v. state of kerala [1978] 42 stc 217. the petitioner in that case purchased goats and sheep for slaughtering them. the assessing authority took the view that when the petitioner is killing these goats and sheep it is consuming them in the manufacture of other goods for sale within the state, for, according to him, when a live goat is cut and killed, what is produced is not a live goat, but only lifeless mutton. the assessing authority took the view that the process involved in the processing of goat into mutton is a manufacturing process, but according to the petitioner he is not doing anything more than processing the mutton. the question arose whether section 5a is attracted in the said process. the division bench, after considering the ingredients of section 5a and the decision of this court in deputy commissioner of sales tax (law), board of revenue (taxes), ernakulam v. pio food packers [1978] 41 stc 364, the decisions of the american supreme court in anheuser-busch brewing association v. united states [1907] 207 us 556, decisions of this court in joseph v. state of kerala [1967] 20 stc 261 and in manager, pulpally devaswom's case [1977] 40 stc 350, took the view that it cannot be said that the meat exposed for sale in the market after slaughtering goats or sheep is manufactured after consuming the goat or sheep. it was held that meat exposed for sale is still of goat or sheep, in the same way as dressed chicken is still chicken, or the sliced, canned and packed pineapple is still pineapple prepared from the raw fruit after the minimal process for making it marketable. it was further observed that, to use the technical or commercial expression seen employed in the judicial decisions, it is only a case of meat on hoof having been prepared as meat or dressed meat for purpose of sale in the market. the division bench took the view that the transaction in question did not attract section 5a. it is this decision which is reversed by the supreme court in deputy commissioner of sales tax v. a.b. ismail [1986] 62 stc 394. the supreme court after referring to the provisions of section 5a of the act observed that it would be useful to consider, unaided by authorities, the question whether 'goats and sheep' and 'mutton' are the same goods known to commercial circles and in common parlance. it was observed that if a person goes to a butcher's shop and asks for mutton he will not be given goats nor will he be satisfied with goats and further when he intends to purchase goats he will not be satisfied if mutton is supplied to him. it was further observed that this is because the two, both in commercial circles and in common parlance, are two different things having a distinct individuality of their own, one different from the other. it would therefore be wrong to assume, as the high court has done, that these two goods are the same. the court observed that what happens is that when goats and sheep are converted into meat, 'other goods' within the meaning of the section come into being. it was further observed that in order to attract section 5a, two other ingredients are also to be satisfied, namely, consumption and manufacture. consumption is a word of wide import ; it denotes the taking in of something ; to convert that something into another; here the slaughter of the animals and their conversion into meat is the consequence of consumption of goats in a legal sense ; in such conversion, a process of manufacture can also be inferred. the important ingredient of this section, of course, is the bringing into existence of other goods, after consumption and manufacture, which are distinct from the original goods ; lifeless mutton is, by any standard, 'other goods' different from 'goats and sheep'.the supreme court thereafter observed that the high court rested its conclusion based on the decision pio food packers' case [1978] 41 stc 364 and also relied on three other decisions already noted. thereafter it was observed as follows :.'we are constrained to hold that the approach of the high court to the facts of the case was incorrect and reliance on the decisions referred to above was wrong. in the american case the question was whether chicken killed and dressed after plucking its feathers and throwing out its entrails and kept in cold storage was a manufactured product, different from chicken. the court there held that a chicken killed and dressed is still a chicken. we respectfully agree with this conclusion. a chicken killed and a dressed chicken are both chicken and both are known to the ordinary man as well as commercial world as chicken. by removal of the feathers and entrails the dressed chicken is made ready for the table. there is no process of manufacture and bringing into being an item different from the original goods. in [1967] 20 stc 261 (ker) (joseph v. state of kerala), the court had to deal with prawn pulp made out of raw prawns. the court held that there was neither consumption nor manufacture involved in making the prawn pulp and that in the process of conversion, goods distinct from raw prawn was not produced when prawn pulp came into being. in [1978] 41 stc 364 (ker) (deputy commissioner of sales tax v. pio food packers), the goods involved were pineapple and sliced pieces of pineapple. they are clearly the same goods. this court approved this finding when the state took the matter in appeal before this court.'the supreme court thereafter referred to its earlier decision in anwarkhan mehboob co. v. state of bombay [1960] 11 stc 698, conversion of raw tobacco into bidis by removing stem and dust amounted to consumption of raw tobacco attracting tax liability; decision of the karnataka high court in k. cheyyabba v. state of karnataka [1980] 45 stc 1 where it was held that the dealers who purchased sheep and goats in the course of their business under circumstances in which no tax was leviable under section 5 of the karnataka sales tax act, were liable to pay tax on the purchase price under section 6 of the act, as they consumed the goats and sheep by way of slaughtering them to produce mutton, hides and skins, as part of their' business activities. the supreme court approved the conclusion in that case. the decision of the supreme court in a. hajee abdul shukoor and co. v. state of madras [1964] 15 stc 719 where it was held that raw hides and skins constituted a different commodity from dressed hides and skins with different physical properties, and the decision in state of madras v. swasthik tobacco factory [1966] 17 stc 316 where raw tobacco manufactured into chewing tobacco and ganesh trading co., karnal v. state of haryana [1973] 32 stc 623 (sc) where paddy dehusked into rice, all were held to constitute different commercial commodities. the supreme court ultimately considered the decision in chiranjit lal anand v. state of assam [1985] 60 stc 89 (sc) relied on by the petitioner. it was noted that the said case related to an item called 'meat on hoof and observed that the dealer submitted a tender to supply among others 'meat on hoof to the central reserve police units within the state of assam and the dealer was assessed for the purchase of meat on hoof which is a name used mainly by the military for a 'live goat'. the contention of the dealer was that since meat was exempted from sales tax by the assam act, 'meat on hoof should also be exempted from assessment. the supreme court after considering the contention in the peculiar facts of that case, held that meat on hoof would also come within the exemption and set aside the assessment, disagreeing with the high court. the supreme court then observed that in their view, the principle enunciated in that decision has to be applied only to the facts of that case because the goods involved in that case were 'meat on hoof and meat was exempted from assessment under the act. it would not, therefore, be proper to rely upon the said decision, rendered purely on the facts of that case, in deciding the present cases. the supreme court ultimately held as follows :'here goats and sheep undergo a process, viz., slaughtering, and then comes into existence meat, hides and skins by consuming the goat in the said process, the end-product being something entirely different from the original goods. the high court was, therefore, in error in holding that goat and meat are the same and that no consumption was involved in converting goats into meat. the high court confused the issue when it said that 'the meat exposed for sale is still of the goat and sheep nobody disputes that the meat is of the goat and of the sheep. what is to be seen is whether meat and goat are the same. the high court fell in an error when it used the expression 'meat of the goat' while discussing the facts of the case.'9. from the decision of the supreme court in a.b. ismail's case [1986] 62 stc 394 it is clear that the supreme court has taken the view that the slaughtering of goats and the coming into existence of meat, hides and skins by consuming the goat in the said process, the end-product is entirely different from the original goods.as we already noted, the only question which was raised by the petitioner in these cases before the tribunal was as to whether the goats, sheep, pigs, etc., purchased by the petitioner and the meat obtained by converting the goats, sheep and pigs by cutting and slaughtering them are one and the same commodity. the tribunal, relying on the decision of the supreme court in a.b. ismail's case [1986] 62 stc 394 held that mutton is commercially different from goat or sheep. it is also pertinent to note that the supreme court in the said decision had considered the decision in pio food packers' case [1978] 41 stc 364 (ker) relied on by the counsel for the petitioner before us. here, it must be noted that the decision of the supreme court in chiranjit lal anand's case [1985] 60 stc 89 heavily relied on by the counsel for the petitioner was distinguished by the supreme court in ismail's case [1986] 62 stc 394 by saying that the said decision was rendered in the peculiar circumstances of that case and therefore it cannot be treated as laying down any legal principles for general application.10. since the counsel for the petitioner had submitted that the facts of the present case will fit in with the facts of the decision of the supreme court in chiranjit lal anand's case [1985] 60 stc 89, we have perused the said decision and have also considered the matter with reference to the documents produced by the petitioner as annexure d series.11. in chiranjit lal anand's case [1985] 60 stc 89 the petitioner was carrying on the business of supply of various items of ration to the central reserve police units within the state of assam for a number of years. in response to a tender notice issued by the superintendent of police, jorhat, the petitioner had submitted a tender to supply various items of ration in army scale including 'meat on hoof. clause 5(d) of the tender provided that, contractor shall be bound to supply different varieties of meat on hoof as per certain ratio of the monthly requirement. it was contended by the petitioner in a petition under article 226 of the constitution of india before the high court that meat on hoof is a peculiar abbreviation used mainly by the military which is nothing but a live goat, it was stated that it was a device to satisfy certain religious sentiments of the people in the military that the aforesaid phrase had been used, that the sole purpose for which the meat on hoof was supplied was for meat and that was the consideration for which the price was fixed. the petitioner had relied on a notification in the assam gazette with regard to the scale of meat. paragraph 14(a) and (b) of the said scale reads as follows :'14(a) the scale of meat for assam rifles is for dressed meat. in actual practice live animals (chicken in the case of hospital supplier) will be supplied for the purpose of meat. live animals/ chickens after production and having been passed by the ration committee may in certain supply points/stations be required to be slaughtered under customary rights prevalent in the unit by the contractor at his own expense and agreements. after the carcass has been dressed and wiped down it will be hung for 3 to 6 hours according to the season of set. then dressed out meat will be duly weighed and supplied to the supply points/stations as per demand.(b) in case of ops which are dependent on bn.hq/wing hq/ sub-wing hq for the purpose of supply, contractor will have to supply live animals for the purpose of meat and half the weight of such live animals, i.e., 50 per cent only will be taken as equal to that of dressed meat.'the petitioner originally did not file any return in respect of the said transaction. the assessing authority had completed the assessment in respect of the said transaction. the petitioner sought to quash the said assessment and the demand notice. it was contended by the petitioner that the meat is exempted from sales tax and since 'meat on hoof' was nothing but meat, the assessment in that case under the act was unauthorised and invalid. the high court held that meat could not be equated with meat on hoof. the supreme court referred to the well-settled principles regarding interpretation of items in statutes like the sales tax acts whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances and observed that resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, i.e., the meaning attached to them by those dealing in them. it was further observed that if any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined, that in the absence of any definition being given in the enactment, the meaning of the term in common parlance or commercial parlance has to be adopted. the supreme court thereafter noted that identical expression 'meat on hoof came up for consideration in the case of daffadar bhagat singh & sons [1976] 37 stc. 527 where a firm of army contractors under the contract between the appellants and the army authorities, the appellants had to supply, among other things, 'meat' and 'meat on hoof. in that case under the punjab act no tax was payable on the sale of meat, fish and eggs except when sold in tins, bottles or cartons. the question arose as to whether 'meat on hoof was taxable under the punjab general sales tax act. the high court was of the view that 'meat on hoof was taxable inasmuch as 'meat on hoof was preserved meat, the preservation being the natural carton consisting of the skin of the animal'. in appeal, the supreme court observed that the skin covering the flesh of the animal preserved its life ; to think that the skin was a carton for the flesh, which could be used for food after the animal was slaughtered, was against common sense. it was further observed that whether what was sold by the appellants in that case to the army authorities as meat on hoof was really meat or live animals would depend on a correct reading of the contract between the parties, and since all the terms of the contract were not before the court, the matter was remanded. the supreme court thereafter observed as follows:'we have already noticed the relevant clause in the tender, the appropriate term in the contract, the extract from the assam gazette and the purpose for which the meat was being purchased. furthermore it has been found as a fact that the meat on hoof was intended for supply of ration to the personnel of the third battalion of the m.s.r.p.f. what was intended to be bought was undoubtedly meat for ration and a reasonable explanation has been given as to why instead of meat (flesh of the goat) 'meat on hoof was asked to be supplied. the abundant and undisputed evidence on record about the purpose of the supply and the position that 'meat on hoof becomes meat proper as soon as the goat is slaughtered and the skin is pulled off, leaves no doubt in our mind that the assessee had advanced a tenable claim.'12. here, it is relevant to note that the supreme court has rendered the decision in that case on an appreciation of the relevant clause in the tender, the appropriate term in the contract, the extract from the assam gazette and the purpose for which the meat was being purchased and the further fact that the meat on hoof was intended for supply of ration to the third battalion of the m.s.r.p.f. it must be noted that clause 14(a) of the scale indicated in assam gazette extracted above would clearly indicate that the contractor has to slaughter the meat on hoof under customary rights prevalent in the unit at his own expense and after the carcass has been dressed and wiped down it will be hung for 3 to 6 hours according to the season of set, and thereafter the dressed out meat will be duly weighed and supplied to the supply points/stations as per demand and further if the supply of meat is in the form of live animals the payments will be only the half weight of live animals, i.e., 50 per cent only will be taken as equal to that of dressed meat. these clauses would clearly indicate that the agreement between the parties was one for supply of meat alone. this decision was rendered by the supreme court only on the facts and circumstances of that case as observed by the supreme court in a.b. ismail's case [1986] 62 stc 394.13. the contention of the counsel for the petitioner that what the petitioner purchased is only meat of the animals and not the animals themselves, cannot be accepted for various reasons. annexure d1 document which is styled as an acknowledgment of receipt of livestock shows that the petitioner had received from the coconut research station, koothattukulam livestock namely, pig, cattle, poultry and goats having a total weight of 328 kgs. annexure d2, invoice issued by the coconut research station, kumarakom gives the date of supply, particulars of requisition, description of article supplied or service rendered, number of articles or quantity of work done and the amount. in the particular column, reference is made to the letter regarding pig purchase. in the description column, the number of pigs are mentioned. however, its value is determined based on the weight of pigs. annexure d3 shows that the petitioner had received from r.a.r.s., pattambi eight numbers of cattle having a total weight of 1,211 kgs. annexure d4 shows that bullocks and buffalos are purchased. annexure d5 also is an acknowledgment which shows certain livestocks having the total weight of 560 kgs., were purchased. annexure d6 shows that four pigs having a total weight of 560 kgs., at the rate of rs. 5.50 per kg., were purchased from the veterinary surgeon, piggery unit, thalayolaparambu. a certificate issued by the veterinary surgeon, occurring in page no. 9 of annexure d6(2) states that four numbers of pigs with a total live body weight of 560 kgs., which satisfy the health and general condition under the factory requirement have been received on october 12, 1983 and their weight as per the invoice has been recorded in page no. 260 of the purchase register of animals and birds. all these documents would show that what was purchased by the petitioner is livestock, however, the payment was with reference to the weight of the live stock and the rate fixed is per kilogram. the contention of the petitioner is that these documents would show that what was purchased was only meat of the animals, in the above circumstances, cannot be sustained. that apart it is seen from the assessment order as well as from the tribunal's order, (para 24) that the petitioner had not sold meat alone but also sold hides and skins and bone-meal. we are unable to agree with the contention of the petitioner that the evidence afforded by the aforesaid materials would fit in with the facts of the case decided by the supreme court in chiranjit lal anand's case [1985] 60 stc 89. the said decision turned on the contract between the parties, gazette notification and other special circumstances of that case. the said decision cannot be treated as an authority for the position that live animal and meat of the said animals on conversion are one and the same commodity. in these circumstances, we do not find any merit in the contention of the petitioner that the decision of the supreme court in chiranjit lal anand's case [1985] 60 stc 89 as also the principles laid down by the supreme court in daffadar bhagat singh & sons' case [1976] 37 stc 527 are applicable to the present case.14. what remains to be considered is as to whether the authorities and the tribunal had considered the applicability of section 5a of the act to the facts of this case. according to the petitioner, since none of the authorities have considered the question whether the main part of section 5a is attracted. the petitioner's claim that the sale of meat is not liable to tax with reference to the notification s.r.o. no. 342 of 1963 and that the goat, sheep and pig purchased by the petitioner is nothing but meat and therefore it cannot be said that the sale of goat, sheep and pig are liable to tax under the act. it is its further case that nobody had considered whether the turnover of sale of goat, sheep and pig had suffered tax at the hands of the sellers, which is a circumstance to be satisfied for attracting section 5a of the act. the petitioner in support of his contention had relied on a decision of the division bench of this court in kerala premo pipe factory's case [1984] 57 stc 84 wherein it was held that section 5a of the act was intended to drag into the net of taxation transactions of purchase where such transactions were not liable to suffer tax in the hands of the seller and the goods did not return to the commercial stream for the purpose of being taxed. the division bench also held in that case, it is very clear, the person who sold to the petitioner was liable to pay tax under the act and therefore such person would not be liable to tax. in s.k. arts case [1987] 64 stc 411 a division bench of this court was concerned with the correctness or otherwise of the imposition of tax under section 5a of the act on the purchase of certain finished goods from unregistered dealers. in that case the tribunal relying on explanation 4 to the definition of 'sale' in section 2(xxi) of the act held that export sales effected must be deemed to be sales that took place within the state. the division bench observed that in view of a bench decision of this court in deputy commissioner of sales tax (law) v. indian oil corporation ltd. [1987] 64 stc 160, the decision of the tribunal cannot be sustained. the division bench, however, observed that there is one aspect of the matter to be considered by the tribunal and observed as follows :'section 5a is not ipso facto attracted on the satisfaction of one or other of the conditions specified in clauses (a), (b) or (c) of that section. there is a further and more important condition precedent for the applicability of section 5a, namely, that the sale or purchase is in circumstances in which no tax is payable under section 5. the exigibility to purchase tax is dependent on a finding that the transaction was one in which no tax was payable under section 5. the goods in question were liable to tax at the sale point and were taxable at multi-point. non-payment of the tax on the sale may be due to various circumstances as pointed out by this court in malabar fruit products co. v. sales tax officer [1972] 30 stc 537 (paragraphs 27, 28 and 29). sales tax may not be payable by the seller for the reason that he belong to an exempted category of sellers, or for the reason that his turnover does not exceed the minimum fixed for liability to tax, or for other reasons. in this case, the tribunal has proceeded only on the basis that since the purchases were from unregistered dealers, the purchases become liable to tax if one or other of the conditions specified in clauses (a), (b) or (c) is satisfied. we feel that the tribunal has misdirected itself in law in thinking that if the purchases are from unregistered dealers, the only point to be considered is whether anyone of the conditions specified in clauses (a), (b) or (c) exists. this is not correct. assessment under section 5a is permitted only if the transaction is in circumstances in which no tax is payable under section 5. therefore the question.is not whether the seller is a registered dealer or an unregistered dealer. the question is whether tax was payable by him under section 5 in respect of the transaction. even an unregistered dealer is liable to pay tax, in case his total turnover exceeds the minimum prescribed by the act. the fact that the selling dealer is not registered under the act is not the criterion ; the point to be adverted to is whether he is a person by whom tax will be payable under the act. the effect of registration is that it enables the dealer to collect the tax payable by him from the purchaser. there is also a corresponding embargo on unregistered dealers collecting any amount by way of tax. non-registration need not necessarily imply non-liability to pay tax under section 5. the authorities have therefore, necessarily to address themselves to this question whether the selling dealer is liable to tax under section, 5. before imposing the liability under section 5a.'15. in view of the aforesaid decision, we had perused the orders of the three authorities to find out as to whether the petitioner hadany such case before the three authorities. we do not find that any-such contention was taken by the petitioner before any of the authorities. the only contention that is taken by the petitioner before the authorities and the tribunal is that meat is an exempted commodity and that the petitioner had purchased goat, sheep, and pig only for meat. in other words, the only contention taken is that sheep, goat and pig and the meat of the live animals obtained after cutting and slaughtering the said animals is one and the same commodities. if the said contention is accepted then the sellers of livestock like sheep, goat and pig are not liable to pay tax on the sales turnover of live stock in view of the general exemption granted to the sale turnover of meat under notification s.r.o. no. 342 of 1963. if the said contention is not accepted livestock is liable to tax under section 5 of the act and if the purchases are made in the circumstances in which no tax was payable (the circumstances are specified in the decision of a single bench of this court in malabar fruit products co, v. sales tax officer, palai [1972] 30 stc 537 and approved by the supreme court in the state of tamil nadu v. m.k. kandaswami [1975] 36 stc 191 on the sale of livestock whether such circumstances existed in this case is a pure question of fact. if the assessee had raised any such question either before the assessing authority or before the appellate authority it would have been possible for them to ascertain the facts and arrive at a finding. in view of the decision of the supreme court in a.b. ismail's case [1986] 62 stc 394, it can no longer be contended that sheep, goat and pig on the one hand and the meat of the said livestock obtained after slaughtering them are one and the same commodities. thus the sale of sheep, goat and pig attracts liability to tax under section 5 of the act. we find that in all cases where the assessee had produced evidence regarding payment of sales tax on the purchase turnover of livestock, the said turnover was not assessed to tax under section 5a. the assessee had never contended nor produced any evidence to show that the persons from whom the assessee had purchased the live stock had turnover above the non-taxable limit. no details of the sellers were also furnished. in these circumstances, we do not find any reason to afford further opportunity to the assessee in the matter.there is no merit in these revisions. they are accordingly dismissed.