9911796707
TMI Blog1987 (11) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... itutionality of section 6-A has been upheld by a Bench of this Court in Hindustan Milkfood Manufacturers Ltd. v. State of Andhra Pradesh [1982] 51 STC 1, followed in Nandanam Construction Company v. Assistant Commissioner [1983] 53 STC 42. On the second question, the learned counsel submitted, the decision of the Bench in Nandanam Construction Company v. Assistant Commissioner [1983] 53 STC 42 (AP) is against the petitioners, and that according to the said decision, the petitioners must be held to be "dealers" for the purpose of section 6-A. On the third question, however, the learned counsel submitted that the very same decision in Nandanam Construction Company's case [1983] 53 STC 42 (AP) concludes the issue in favour of the petitioners. This aspect needs a little elaboration. The petitioners are contractors executing works contracts for the Government of Andhra Pradesh. They construct buildings or other structures, for which purpose they purchase, inter alia, sand, gravel, stone, etc., from persons other than registered dealers. According to section 6-A of the Act, every dealer who, in the course of his business, purchases any goods (the sale or purchase of which is liable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in which no tax under section 6 is payable on the sale price of such goods and either consumes such goods in the manufacture of other goods for sale or otherwise, or........" The argument addressed and the decision of the Supreme Court would be evident from the following extract: "Mr. Chagla for the appellants urged that the expression 'or otherwise' is intended to denote a conjunctive introducing a specific alternative to the words 'for sale' immediately preceding. The clause in which it occurs means, says Mr. Chagla, that by section 7 the price paid for buying goods consumed in the manufacture of other goods, intended to be sold or otherwise disposed of, alone is taxable. We do not think that that is a reasonable interpretation of the expression 'either consumes such goods in the manufacture of other goods for sale or otherwise'. It is intended by the legislature that consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise." This decision is a clear authority against the proposition urged by the learned counsel for the petitioners. But the difficulty has ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier decision in Ganesh Prasad Dixit's case [1969] 24 STC 343. He submits that having answered the main question in favour of the assessee, there was no occasion for the Supreme Court to consider the said aspect. This reasoning is disputed by the learned counsel for the petitioners, who says that the said observations cannot be treated as obiter dicta, because a question was directly urged, considered, and pronounced upon, and the mere fact that an earlier decision was not referred to, does not detract from the binding nature of the later decision. This very problem had indeed presented itself earlier to a Bench of this Court in Nandanam Construction Company v. Assistant Commissioner [1983] 53 STC 42. While noting the above conflict and also noting the fact that both the decisions are rendered by Benches of co-ordinate strength, the Bench chose to follow the decision in Deputy Commissioner of Sales Tax v. Pio Food Packers [1980] 46 STC 63 (SC) on the ground that it is a "subsequent" decision, and held, in a case identical to the one before us, that section 6-A is not attracted inasmuch as the material purchased by such contractors is not consumed in the manufacture of any goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments urged by both the counsel, we are not inclined to refer the matter to a Full Bench. The proper course for the State may be to have the Special Leave Petition filed by it against the decision of this Court in [1983] 53 STC 42 (Nandanam Construction Company v. Assistant Commissioner) posted for admission and try to obtain a suspension of the said judgment. In our opinion the proper forum for explaining or resolving the conflict between the aforesaid two decisions of the Supreme Court is the Supreme Court itself. We may mention that the judgment in Nandanam Construction Company's case [1983] 53 STC 42 (AP) was rendered as far back as September, 1982. It is more than 5 years. If the State were really serious, they should have seen to it that their Special Leave Petition is posted for admission, and also moved for suspension of the said judgment. They have not chosen to do that. Evidently, having amended the clause concerned as aforesaid, they were more or less satisfied. In any event, even now it is not too late for the State to act in the matter and try to obtain an order of suspension of the judgment in [1983] 53 STC 42 (AP) (Nandanam Construction Company v. Assistant Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
