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TMI Blog1993 (4) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... REDDY, J. Civil Appeal No. 4474 of 1992: The appellant is engaged in the manufacture and sale of products like cast iron pipes, man-hole covers, bends, etc. For the assessment year 1989-90, the Commercial Tax Officer, Narayanguda Circle, Hyderabad, levied sales tax upon the turnover relating to the said products treating them as general goods. He overruled the petitioner's contention that the said products are declared goods liable to tax at the rate of 4 per cent only. The assessee's appeal preferred before the Appellate Deputy Commissioner is still pending. Evidently because no stay was granted pending the said appeal, a notice was issued to the appellant calling upon him to pay the tax assessed, against which notice he preferred a writ petition, being W.P. No. 9315 of 1992, in the High Court of Andhra Pradesh. His main contention in the writ petition was that by virtue of G.O. Ms. No. 383 Revenue(S) Department dated April 17, 1985, his products are declared goods and are, therefore, liable to tax only at 4 per cent. The Division Bench of the High Court dismissed the writ petition following its earlier decision in Deccan Engineers v. State of Andhra Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) tin-plates, both hot dipped and electrolytic and tin free plates; (xiii) fish plate bars, bearing plate bars, crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers, rails-heavy and light crane rails; (xiv) wheels, tyres, axles and wheel sets; (xv) wire rods and wires rolled, drawn, galvanised, aluminised, tinned or coated such as by copper; (xvi) detectives, rejects, cuttings or end pieces of any of the above categories. -------------------------------------------------------------------------- Item 2 of the Third Schedule to the A.P. Act is an exact replica of item (iv) of section 14 of the Central Sales Tax Act. According to section 15 of the Central Act, declared goods cannot be taxed at a rate exceeding 4 per cent or at more than one stage. The precise question that was considered in Deccan Engineers [1992] 84 STC 92 (AP) (followed in the judgment under appeal) was whether the cast iron castings manufactured by the petitioner in that case are cast iron within the meaning of item 2(i) of the Third Schedule to the A.P. Act/item (iv)(i) of section 14 of the CST Act. At this stage, it is necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment has also issued the aforesaid G.O. subsequently under section 42(2) of the State Act clarifying that the cast iron castings are covered within the term cast iron. It is thus clear that cast iron is different from cast iron castings manufactured by the appellant. Cast iron is purchased by the appellant and from that cast iron , he manufactures several goods like man-hole covers, bends, cast iron pipes, etc. In other words cast iron used in item (iv) of section 14 of the Central Act is the material out of which the petitioner's products are manufactured. Position remains the same, even if the appellant purchases iron and mixes it with carbon and silicon thereby deriving cast iron and then pours it into different moulds. In sum, cast iron is different from the cast iron pipes, man-hole covers, bends, etc., manufactured and sold by the appellant. It cannot be denied, in such a situation that the products manufactured by the appellant are, in commercial parlance, different and distinct goods from the cast iron. Indeed this aspect is not seriously disputed by Shri Ganguli, the learned counsel for the appellant. His case is entirely based upon certain clarific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was in reply to the said query that the letter dated January 31, 1984, was written by the Government of India, Ministry of Finance, Department of Revenue, to the Financial Commissioner and Secretary, Government of Haryana, Excise and Taxation Department. The letter says that the matter has been considered carefully by the department in consultation with the Ministry of Law and the Director- General of Technical Development. It set out the opinion of the Ministry of Law as also the opinion of the Director-General of Technical Development. The latter's opinion reads: Cast iron is an alloy iron of carbon, silicon and other alloying elements if required, i.e., cast iron castings are covered under the term 'cast iron'. It may also be clarified that 'cast iron' include gray iron, chilled malleable and nodular iron. Ingot moulds and bottom plates are nothing but cast iron castings. After setting out the said two opinions, the Government of India expressed its opinion in the following words: In accordance with the above advice, cast iron castings are covered under the term 'cast iron'..........State Government may kindly bring this position to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CCT's Ref. D.O. FE. Lr. III (S)/1490/84, dated July 24, 1984. 4. Government Memo 3166/SI/84-4, dated November 13, 1984. 5. From the CCT. D.O. on CCT's. Ref. LI(I)/1063/82. 6. Govt. Memo. No. 3166/SI/84-5, dated February 22, 1985. 7. From the Commissioner of Commercial Taxes, Ref. A3/L1/1093/82 dated March 19, 1983. --- ORDER The Andhra Pradesh Small Scale Industries Association, Vijayawada, requested the Government to clarify whether 'cast iron' and 'cast iron castings' are one and the same commercial commodity. 2.. This matter was examined at length by the Government of India in consultation with the Ministry of Law (Department of Legal Affairs) and Director- General of Technical Development. The Ministry of Finance, Department of Revenue, Government of India, clarified in their letter F. No. 24/10/80-CT dated January 31, 1984 to the effect that 'cast iron castings' are covered within the term 'cast iron'. 3.. Government have examined in detail the legal aspects of the issue and observe that the term 'cast iron including ingot moulds, bottom plates' as in sub- item (i) of item 2 in the Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lan Trading Co. v. Mill Mazdoor Sabha [1967] 1 SCR 15 as amounting to excessive delegation of legislative power. However, in a subsequent decision in Gammon India Ltd. v. Union of India [1974] 3 SCR 665, it has been explained by another Constitution Bench that the decision in Jalan Trading Co. [1967] 1 SCR 15 was influenced by the words occurring at the end of section 37 of the Payment of Bonus Act to the effect that the direction of the Government issued thereunder was final. Inasmuch as the said words are not there in section 34 of the Contract Labour (Regulation and Abolition) Act, 1970, it was held, section 34 cannot be said to suffer from the vice of excessive delegation of legislative power. It is meant for giving effect to the provisions of the Act, it was held. Sub-section (2) of section 42 of the A.P. Act does no doubt not contain the aforesaid offending words, and cannot therefore be characterised as invalid. Yet, it must be remembered that the said power can be exercised for giving effect to the provisions of the Act , and not in derogation thereof. As we shall presently indicate it is necessary to bear this limitation in mind while examining the effect of G.O. Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption under section 9 has to be granted not only by a notification, it is also required to be published in the Andhra Pradesh Gazette. It is not suggested, nor is it brought to our notice, that G.O. Ms. 383 was published in the Andhra Pradesh Gazette. This does not, however, preclude the Government of Andhra Pradesh from exercising the said power of exemption, in accordance with law, if it is so advised. We need express no opinion on that score. The learned counsel for the appellant brought to our notice that the very same Division Bench which rendered the decision in Deccan Engineers [1992] 84 STC 92 (AP) had rendered another decision in Tax Revision Case No. 93 of 1990 (State of A.P. v. Pratap Steel) applying G.O. Ms. 383 and giving relief to the dealer. It is argued that the Division Bench ought to have taken the same view in Deccan Engineers [1992] 84 STC 92 (AP) as well. We have perused the decision in Pratap Steel (Tax Revision Case No. 93 of 1990). It is a short judgment dismissing the revision applying G.O. Ms. 383. It does not appear that the matter was argued in the manner it was in Deccan Engineers [1992] 84 STC 92 (AP). The said argument, therefore, cannot ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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