2008 (7) TMI 875 - HC - VAT and Sales Tax

Cartons - whether are mono-cartons (primary packing material) or secondary packing material? Held that - The assessing authority shall, in view of the law laid down by the Division Bench of this court in Sri Satya Winery & Distillery Pvt. Ltd. 2005 (9) TMI 599 - ANDHRA PRADESH HIGH COURT examine the records of the appellant and verify whether the cartons used are mono-cartons (primary packing material) or secondary packing material. It needs no emphasis that it is only if they are held to be mono-cartons (primary packing material) would they attract tax at the same rate as that of its contents. If, however, they are found to be secondary packing material then they are liable to be taxed independently under entry 19 of the First Schedule to the APGST Act. Subject to the observations aforementioned, the appeals fail and are accordingly, dismissed.

Issues Involved:
1. Scope of revision under Section 20 of the APGST Act.
2. Jurisdiction of the Commissioner to remand matters to the assessing authority.
3. Applicability of Section 20(2A) of the APGST Act.
4. Taxability of cartons and other packing materials.

Issue-wise Detailed Analysis:

1. Scope of Revision under Section 20 of the APGST Act:
The appellant contended that the scope of revision under Section 20(1) of the APGST Act is confined to an examination of the record of any order or proceeding recorded by any authority subordinate to the Commissioner. The appellant argued that a new case could not be made out for the first time in revisional proceedings and that the revisional authority must confine itself to the material already on record. The court noted that Section 20 was amended to allow the Commissioner to make or cause an enquiry if an order is found prejudicial to the interests of Revenue. The court held that the Commissioner has the power to cause necessary enquiry to be made under the amended Section 20(1), provided he satisfies himself that the order is prejudicial to the interests of Revenue. The court further noted that the Commissioner had recorded his satisfaction that the order of the Appellate Deputy Commissioner was prejudicial to the interests of Revenue, thus justifying the revision and remand.

2. Jurisdiction of the Commissioner to Remand Matters:
The appellant argued that the revisional authority exceeded its jurisdiction by remanding the matter back to the assessing authority to ascertain facts afresh. The court observed that the Commissioner has the power to direct further enquiry to rectify defects in the assessment order. The court cited several precedents, including the Full Bench decision in Bayya Pitchaiah, which held that the revisional authority could direct subordinate authorities to make further enquiries. The court concluded that the Commissioner was justified in remanding the matter back to the assessing authority to enable proper verification of the material evidence.

3. Applicability of Section 20(2A) of the APGST Act:
The appellant contended that under Section 20(2A) of the APGST Act, the Commissioner could not exercise revisional jurisdiction on any issue or question already decided by the Appellate Tribunal. The court noted that Section 20(2A) bars the Commissioner from revising an order if the issue or question has already been decided by the Appellate Tribunal. However, the court clarified that this bar applies only to questions of law and not to questions of fact. The court held that the Commissioner's order of remand was based on a question of fact-whether the cartons used were mono-cartons (primary packing material) or secondary packing material. Therefore, Section 20(2A) did not preclude the Commissioner from exercising revisional jurisdiction in this case.

4. Taxability of Cartons and Other Packing Materials:
The appellant argued that cartons and other packing materials should be taxed independently under entry 19 of the First Schedule and not at the same rate as liquor and beer. The court noted that the Division Bench in Sri Satya Winery & Distillery Pvt. Ltd. held that secondary packing materials should be taxed independently under entry 19. The court directed the assessing authority to verify whether the cartons used were mono-cartons (primary packing material) or secondary packing material. If found to be mono-cartons, they would attract tax at the same rate as liquor/beer; if secondary packing material, they would be taxed independently under entry 19.

Conclusion:
The court dismissed the appeals, holding that the Commissioner was justified in revising the order of the Appellate Deputy Commissioner and remanding the matter to the assessing authority for proper verification. The court directed the assessing authority to examine the records and verify the nature of the cartons used, in accordance with the law laid down in Sri Satya Winery & Distillery Pvt. Ltd.

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