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TMI Blog2008 (7) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... AMESH RANGANATHAN J. These appeals are preferred by the dealer against the order of the Commissioner, Commercial Taxes, dated February 27, 1999 revising the order of the Appellate Deputy Commissioner (CT), Kurnool. It would suffice, for the purpose of all these appeals, if the facts in Special Appeal No. 7 of 1999 are noted. The appellant, a registered dealer under the Andhra Pradesh General Sales Tax Act, was engaged in the manufacture and sale of liquor and beer. For the assessment years 1981-82 to 1985-86 it claimed different treatment for bottles, cartons and other packing material, not at the rate of tax payable on liquor and beer. The appeals preferred by the assessee were allowed by the Sales Tax Appellate Tribunal in T.A. No. 611 of 1990 and batch. In its order dated September 9, 1993, the Tribunal held that cartons were taxable under entry 19 of the First Schedule and that other packing material were taxable as general goods. According to the appellant, the order of the Tribunal for these assessment years had become final and the State had not preferred tax revision cases against those orders. The Commercial Tax Officer passed assessment orders for the subsequent as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subordinate to him; that the scope of enquiry was limited only to the material on record and that a new case could not be made out for the first time in revisional proceedings. Learned counsel would submit that there is no material on record to show that cartons and other packing material used by the dealer are monocartons and not secondary packing material and, since the assessing authority had not recorded any finding that the packing material used by the appellant was mono-cartons, the revisional authority had exceeded his jurisdiction in remanding the matter back to the assessing authority to ascertain facts afresh since the scope of revision under section 20(1) was confined only to an examination of the material on record. Learned counsel would rely on Manepalli Venkatanarayana v. State of Andhra Pradesh [1959] 10 STC 524 (AP), Menta Narasimhaswamy Company v. State of A.P. [1983] 54 STC 6 (AP), I.T.C. Ltd. (I.B.D. Division) v. Deputy Commissioner (CT), Gundur Division [2003] 129 STC 104 (AP) and Bayya Pitchaiah v. State of Andhra Pradesh [1969] 24 STC 390 (AP). Learned counsel would further contend that, under section 20(2A) of the APGST Act, the power under sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e secondary packing material was liable to be taxed independently under entry 19 of the First Schedule to the APGST Act in view of the law laid down by the Division Bench of this court in Sri Satya Winery Distillery Pvt. Ltd. [2006] 145 STC 399 mono-cartons (primary packing material) were liable to be taxed at the same rate as that of liquor or beer as the case may be. Learned Special Government Pleader would submit that the Commissioner had merely remanded the matter back to the assessing authority to ascertain these facts and that he had not acted contrary to the judgment of the Full Bench of this court in Indo National Limited [2004] 136 STC 586. He would contend that the expression any issue or question , in sub-section (2A) of section 20, related only to issues or questions of law and not of fact and as the order of the Commissioner, in remanding the matter back to the Tribunal, was only to ascertain facts, the order of the Tribunal in T.A. Nos. 611 of 1990 and batch dated September 9, 1993 did not bar him from exercising jurisdiction under section 20(1) of the APGST Act. Learned Special Government Pleader would contend that the order passed by the assessing authority in a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of satisfying itself as to the legality or propriety of such order or as to the regularity of such proceeding by Act 18 of 1985 with effect from July 1, 1985. Even prior to the amendment of section 20(1), by Act 18 of 1985, a Full Bench of the Madras High Court in State of Madras v. Louis Dreyfus and Company Ltd. [1955] 6 STC 318, while dealing with section 12 of the Madras General Sales Tax Act, 1939 and rule 14(2) of the Madras General Sales Tax Rules, 1939 (prior to its amendment), which relate to the power of revision akin to section 20(1) of the APGST Act, held that rule 14(2) was directed to the correction of improper or illegal assessment orders which had levied less or more tax than justified and dealt with escaped assessment. The Full Bench held that the expression record of any order passed meant the record of assessment including the assessment order as well as other files of the assessing authority which would furnish the basis upon which the assessment order and if, from a perusal of the record or the assessment files, the revising authority could find that the turnover was before the assessing officer, it was competent for it to pronounce upon the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the record maintained by the officer subordinate to him, and can never make enquiry outside that record. . . . In our view the amplitude of the power conferred by sub-section (1) and illustrated by sub-section (2) of section 19 takes in the power to provide for making further enquiry enabling the revising authority to exercise his powers, and unless the power so conferred expressly or by clear implication nullifies or is inconsistent with any provision of the Act, it must be regarded as validly exercised. Conferment of power to make further enquiry in cases where, after being satisfied about the illegality or impropriety of the order or irregularity in the proceeding, the revising authority thinks it just for rectifying the defect to do so does not amount to enlarging the jurisdiction conferred by section 12(2). . . (emphasis(1) supplied) The decision of the Full Bench of the Madras High Court in Louis Dreyfus and Company Ltd. [1955] 6 STC 318 was followed by a Full Bench of this court in Bayya Pitchaiah [1969] 24 STC 390. In Bayya Pitchaiah [1969] 24 STC 390 (AP), the assessee contented that the power under section 20 was not available to increase the taxable turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3] 129 STC 104 (AP). In his revisional order, the Commissioner observed that the order of the Appellate Deputy Commissioner was prejudicial to the interests of Revenue. It is not even the case of the appellant that the order of the Appellate Deputy Commissioner is not an order prejudicial to the interests of Revenue or the conclusion of the Commissioner, that it is so, is perverse. Once the Commissioner records his satisfaction that the order is prejudicial to the interests of Revenue, he has the power under the amended section 20(1), to cause necessary enquiry to be made. The contention of Sri S. Dwarakanath, learned counsel for the appellant, that the scope of enquiry is limited only to the material on record and that the revisional authority does not have the power to remand the matter back to the assessing authority to ascertain necessary facts does not, therefore, merit acceptance. Relying on the judgments in Commissioner of Income-tax v. Narendra Doshi [2002] 254 ITR 606 (SC), Commissioner of Income-tax v. Shivsagar Estate [2002] 257 ITR 59 (SC), Union of India v. Kaumudini Narayan Dalal [2001] 249 ITR 219 (SC) and Berger Paints India Ltd. v. Commissioner of Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to a conclusion on the issue in the light of the criteria brought out by the Supreme Court in Premier Breweries [1998] 108 STC 598 and that, in the absence of any such material, the Appellate Deputy Commissioner should not have accepted the plea of the appellant and should have remanded the matter back to the assessing authority as he had done in the case of bottles. The Commissioner was of the view that it was just and proper to give the appellant an opportunity to produce all material available in support of its contention before the assessing authority and that the assessing authority should conduct proper verification and pass necessary orders. The order of the Appellate Deputy Commissioner was revised since he had given relief even though the appellant had not placed any material before him. It is in such circumstances that the Commissioner considered it appropriate to remand the matter back to the assessing authority to enable him to conduct proper verification on the material evidence to be produced by the appellant. The order of the Commissioner remanding the matters back to the assessing authority to cause verification/enquiry cannot, therefore, be said to be without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be bound by the decision of the Tribunal on a question of law. (Indo National Limited [2004] 136 STC 586 (AP)[FB]). What is, therefore, necessary to examine is whether the revisional powers exercised by the Commissioner, Commercial Taxes in the present batch of cases is on a question of fact or of law. In his order dated February 27, 1999, the Commissioner noted that during the 14 assessment years referred to in his order, the assessee had manufactured liquor and sold bottled liquor in cartons, that the invoice price was split up separately into value for liquor, bottles, cartons and other packing material, that the assessing authority had applied the rate of tax applicable to liquor on the turnover relating to bottles, cartons and other packing material under section 6C of the Act, that in all the appeals the disputed turnovers included turnover relating to cartons and other packing material, that the Appellate Deputy Commissioner had allowed the appeals on these two items of disputed turnovers and held that cartons were liable to tax under entry 19 of the First Schedule and that other packing material should be assessed as unclassified goods, that the order of the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral Sales Tax Act was not in pari materia with section 6C of the APGST Act, may have necessitated further enquiry, we are saved the trouble of doing so since the learned Special Government Pleader has fairly stated that, in view of the judgment of the Division Bench of this court in Sri Satya Winery Distillery Pvt. Ltd. [2006] 145 STC 399 (AP), it is only mono-cartons (primary packing material), and not secondary packing material, which are liable to tax at the same rate as that of liquor/beer. We, accordingly, hold 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. [2006] 145 STC 399, 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 aforem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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