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Prabhat Timber Depot and ors. Vs. State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition Nos. 2876, 2916, 3417, 3652, 4444 and 5611 of 1977, 78 of 1978, 6642 of 1979 and 822,
Judge
Reported in[1981]48STC159(AP)
ActsCentral Sales Tax Act, 1956 - Sections 14; Kerala General Sales Tax Act, 1963 - Sections 5A(1)
AppellantPrabhat Timber Depot and ors.
RespondentState of Andhra Pradesh and ors.
Appellant AdvocateT. Anantha Babu and ;P. Venkatarama Reddy, Advs.
Respondent AdvocateGovernment Pleader for Commercial Taxes
Excerpt:
.....central sales tax act, 1956 and section 5a (1) of kerala general sales tax act, 1963 - purchase of timber from forest officials taxable at point of first sale - imposition of tax in subsequent sale of beams, rafters or planks made out of such timber - such levy of tax challenged - beams and rafters cut out from timber logs constitute a commercial commodity different from timber logs - tax imposed on sale of such products does not means additional taxation on timber for which tax is already paid - held, imposition of tax on products cut out of tax paid timbers valid. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2)..........in these writ petitions are dealers in timber. they usually purchase logs of timber from the forest department, saw or cut them into planks, rafters, beams, etc., and sell them. under entry 63 of the first schedule to the act, sales tax is leviable on timber at the point of first sale by a dealer in the state. the commercial tax department took the view that the forest department was not a 'dealer' and they were, therefore, levying tax on the sales effected by the persons, who purchased timber from the forest department and sold the same on the ground that they were first sales by dealers. in vajhala venkata ramana v. state of andhra pradesh ([1973] 31 s.t.c. 55.) this court held that the forest department was a 'dealer' and hence the sale by it must be considered to be the first.....
Judgment:

Alladi Kuppuswami, C.J.

1. In this batch of writ petitions the main question for consideration is whether entry 145 of the First Schedule to the Andhra Pradesh General Sales Tax Act (referred to in this judgment as the Act) is ultra vires and unconstitutional.

2. It is sufficient to state the facts in Writ Petition No. 3417 of 1977 in order to deal with the contentions raised by the petitioners in these writ petitions.

3. The petitioners in these writ petitions are dealers in timber. They usually purchase logs of timber from the forest department, saw or cut them into planks, rafters, beams, etc., and sell them. Under entry 63 of the First Schedule to the Act, sales tax is leviable on timber at the point of first sale by a dealer in the State. The commercial tax department took the view that the forest department was not a 'dealer' and they were, therefore, levying tax on the sales effected by the persons, who purchased timber from the forest department and sold the same on the ground that they were first sales by dealers. In Vajhala Venkata Ramana v. State of Andhra Pradesh ([1973] 31 S.T.C. 55.) this Court held that the forest department was a 'dealer' and hence the sale by it must be considered to be the first sale liable to tax. This view was upheld by the Supreme Court on appeal.

4. Another question that arose was whether timber cut and sold as planks, rafters, beams, etc., could be regarded as 'timber' within the meaning of entry 63 of the First Schedule. Till 1969 the department took the view that 'timber' though cut into sizes continued to be timber and hence tax could not be levied on the sales of the timber so cut into sizes, as under the Act the same commodity could not be subjected to levy of sales tax more than once. However, in 1969, there was a change of opinion by the department to the effect that when timber was cut and sold in different sizes, the sales of such timber were also liable to tax. The legality of such levy was challenged by certain dealers in Writ Petition No. 1500 of 1971, and batch in Ramaswamy v. State of Andhra Pradesh ([1973] 32 S.T.C. 309.). This Court in its judgment reported in 32 Sales Tax Cases 309 held that planks, rafters, cut sizes, etc., were timber within the meaning of entry 63 of the First Schedule to the Act, and as timber was taxable only at the first point of sale, i.e., when the forest department sold the timber to the dealers, the sale by the dealers of timber in the form of planks, rafters and cut sizes could not be taxed a second time.

5. In order to get over the decision in Vajhala Venkata Ramana v. State of Andhra Pradesh ([1973] 31 S.T.C. 55.), the Andhra Pradesh General Sales Tax Act was amended by Act No. 4 of 1974, by introducing explanation IV-A to the First Schedule (which was later renumbered as explanation V) to the following effect :

'For the purposes of items 63, 64 and 75, in the case of timber, firewood and bamboos purchased by the forest contractors in the auction of forest coupes conducted by the forest department of the State Government, and sold by such contractors, the sale by such contractors of such timber, or firewood or bamboos in any form or size shall be deemed to be the first sale.'

6. Again in view of the decision of this Court in Ramaswamy v. State of Andhra Pradesh ([1973] 32 S.T.C. 309.), another amendment was introduced by Act No. 49 of 1976, under which entry 145, among other entries, was added to the First Schedule, viz., 'logs cut into sizes such as beams, rafters and planks' and these were also subjected to levy of tax at the point of first sale in the State.

7. Having regard to this entry the sales tax department began to levy tax on sales of logs cut into sizes such as beams, rafters and planks under entry 145, in spite of the fact that under the judgment of this Court in Ramaswamy v. State of Andhra Pradesh ([1973] 32 S.T.C. 309) no such tax could be levied on sales of such goods by dealers, who had purchased timber from the forest department and cut it into sizes.

8. The petitioners, who are dealers and who are aggrieved by such levy, have filed these writ petitions contending that entry 145 is ultra vires. It is submitted on behalf of the petitioners that, under section 5(2)(a) of the Act, in the case of the goods mentioned in the First Schedule tax shall be levied only at the point of the sale specified as applicable thereto effected in the State by the dealer selling them on his turnover of sales in each year relating to such goods. According to the petitioners, 'timber' though cut into sizes continues to be 'timber' within the meaning of entry 63 and hence it is taxable only at the point of first sale, i.e., when the forest department sold it to the petitioners and it cannot again be taxed at the point of sale by the dealers in the form of cut sizes of timber. It is further contended that the levy of tax, both under entry 63 and entry 145 of the First Schedule, offends article 14. Timber which has been selected for single point tax levy cannot, by duplication of entries in the schedule, be subjected to tax twice. Goods covered by other entries in the same schedule are subjected to tax only once. The classification of the same commercial commodity into two items 63 and 145 is arbitrary and artificial and has no rational nexus to the object of the Sales Tax Act and hence offends article 14 of the Constitution. This classification under two entries amounts to fraud on power. Lastly it is contended that the impugned levy of tax under entry 145 constitutes an unreasonable restriction on the petitioners' right to trade and hence it offends article 19(1)(g) of the Constitution.

9. It is seen that all these contentions rest on the principal claim of the petitioners that timber in its original form, which was purchased by the dealers from the forest department and the timber which is cut into sizes by them and sold as beams, rafters, planks, etc., form the same commodity. In support of this contention they rely on the decision of this Court in Ramaswamy v. State of Andhra Pradesh ([1973] 32 S.T.C. 309.), in which, after an elaborate discussion of the meaning of timber, a Division Bench of this Court held that planks, rafters, cut sizes, etc., from logs of wood, according to popular or commercial usage, is timber within the meaning of item 63 of the First Schedule.

10. Sri Anantha Babu, the learned Advocate for the petitioners, in this connection referred to the decision in Banarsi Debi v. Income-tax Officer : [1964]53ITR100(SC) , in which it was held quoting Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd. ([1933] A.C. 402 at 411.), that 'it has long been a well-established principle to be applied in the consideration of Act of Parliament that where a word of doubtful meaning has received a clear judicial interpretation the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously assigned to it'. He has also referred to another decision of the Supreme Court in Bengal Immunity Co. Ltd. v. : [1955]2SCR603 . relying on the following passage :

'It is a well-settled rule of construction that when a statute is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the legislature is presumed to be acquainted with the construction which the courts have put upon the words, and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the court as correctly reflecting the legislative mind.'

11. He submitted that the legislature did not choose to make any alteration to item 63 and it continued to remain as it was when the judgment of this Court was delivered in Ramaswamy v. State of Andhra Pradesh ([1973] 32 S.T.C. 309.), and hence it should receive the same interpretation as was given to it in the said judgment, viz., that the expression 'timber' would also include cut sizes of timber.

12. We are unable to agree with this contention. This argument overlooks the important circumstance that the legislature chose to introduce another entry, viz., entry 145. It is true that entry 63 remained unaltered, but the legislature added another entry to the First Schedule, viz., entry 145. Having regard to the circumstances under which this entry was introduced, it is clear that the intention of the legislature was to treat cut sizes of timber such as beams, rafters, planks, etc., as different commodity from timber.

13. In Kuttirayin & Co. v. State of Kerala ([1976] 38 S.T.C. 282.) the High Court of Kerala had the occasion to consider the question whether a dealer, who purchases timber and converts it into sizes, planks or scantlings, can be said to consume such timber in the manufacture of other goods for sale within the meaning of section 5A(1)(a) of the Kerala General Sales Tax Act. The Kerala High Court observed that the test is : 'Are the goods the same articles of merchandise or different articles of merchandise as understood in commercial language or in common parlance, before and after the conversion or change. If different, the products obtained on conversion are the result of manufacture, and if same, they are not.' They observed that 'planks and scantlings are commercial articles different from the logs from which they are sawn. However, if timber logs are cut into sizes to facilitate transport, stacking, etc., it cannot be said that commercial articles different from timber logs emerge. On the other hand, logs sized into beams, sleepers, etc., are different commercial articles, which are sold and purchased as beams, sleepers, etc., and not as timber logs'. We are in agreement with the reasoning of the learned Judges. In the present case entry 145 reads :

'Logs cut into sizes such as beams, rafters and planks.'

14. The expression 'such as' must be understood in such a way that the logs cut into sizes are ejusdem generis with beams, rafters and planks. It is only such logs cut into sizes that can be described as beams, rafters and planks, or those which are of such a nature similar to beams, rafters and planks that would come under entry 145. If they are merely cut into sizes for the purpose of transportation and convenience of transaction but did not partake the nature of beams, rafters and planks or goods of similar nature, then they cannot come under entry 145, but will be covered by entry 63. It is for the taxation authorities to consider as a question of fact in each case, whether the logs cut into sizes by the dealers concerned partake the character of beams, rafters and planks or goods of such nature as to be considered as goods such as beams, rafters and planks. In such a case they would be liable to tax under entry 145 independent of entry 63. In all other cases they should be considered to be only timber within the meaning of entry 63 and cannot again be subjected to tax when they are sold by the dealers. Reference may also be made to a few other decisions which are cited at the Bar.

15. In State of Tamil Nadu v. Pyare Lal Malhotra : 1983(13)ELT1582(SC) the Supreme Court held that each sub-item in entry No. (iv) in section 14 of the Central Sales Tax Act, 1956, as originally worded (prior to its amendment by Amendment Act No. 61 of 1972) is a separate taxable commodity for purpose of sales tax and each of them forms a separate species for each series of sales although they may all belong to the genus 'iron and steel'. Therefore manufactured goods consisting of 'steel rounds, flats, angles, plates, bars' or similar goods in other forms and shapes could be taxed again even if the material out of which they were made had already been subjected to sales tax once as iron and steel scrap. It was held further that the ordinary meaning to be assigned to a taxable item in a list of specified items is that each item so specified is considered as a separately taxable item for purposes of single point taxation in a series of sales unless the contrary is shown. The mere fact that the substance or raw material out of which it is made has also been taxed in some other form, when it was sold as a separate commercial commodity, would make no difference for purposes of the law of sales tax. The object is to tax sale of each commercial commodity and not the sale of the substance out of which they are made. Each commercial commodity becomes a separate object of taxation in a series of sales of that commercial commodity so long as it retains its identity as that commodity.

16. Reliance was placed by the learned Advocate for the petitioners on another Supreme Court decision in Commission of Sales Tax v. D. S. Bist & Sons : [1980]1SCR593 where it was observed that the process of withering, crushing and roasting the tea-leaves and of grading them with sieves did not rob tea-leaves of their character of being the agricultural produce and continuing as such substantially. Similarly in Deputy Commissioner, Sales Tax v. Pio Food Packers : 1980(6)ELT343(SC) the Supreme Court held, dealing with section 5A(1)(a) of the Kerala General Sales Tax Act, that there is no consumption of the original pineapple fruit for the purpose of manufacture when the pineapple fruit is processed into pineapple slices for the purpose of being sold in sealed cans. We do not consider that these decisions are of any application to the facts of the present case. We are concerned with a specific entry 145 which expressly provides that logs cut into sizes, such as beams, rafters and planks and are liable to tax at the first point of sale and the intention of the legislature to consider these items as separate from item 63, timber, is absolutely clear. The present case in our view comes within the principle laid down by the Supreme Court in State of Tamil Nadu v. Pyare Lal Malhotra : 1983(13)ELT1582(SC)

17. The next contention urged is that entry 145 is ultra vires as it violates article 14 of the Constitution. As we have already observed, the basis for this contention is that the same commodity is described under two entries, viz., under entries 63 and 145, and there is no reasonable basis for levying tax at two points in respect of this commodity while applying the levy to a single point with regard to other commodities. As we have held that the commodities described in entry 63 and entry 145 are different, there is no substance in the contention that article 14 of the Constitution is violated.

18. Sri P. Venkatarama Reddy, who appeared for the petitioners in W.P. No. 1551 of 1980, submitted his arguments founded on article 14 in a slightly different manner. He submitted that under explanation IV-A (now explanation V) in the case of timber purchased by the forest contractors, in the case of forest coupes, conducted by the forest department and sold by such contractors, the sale by such contractors of such timber in any form or size shall be deemed to be the first sale. Thus, if the forest contractor purchases timber in an auction of forest coupes conducted by the forest department, the tax is to be collected only at one point, viz., at the point of sale by the forest contractor of timber as such, or in any form or size thereof. However, if the timber is purchased by ordinary dealers from the forest department in auction the tax should be imposed at two stages, viz., at the point of sale by the forest department and again at the point of sale of cut sizes by the petitioners. Thus, the incidence of taxation would depend upon the person purchasing the timber from the forest department and as to how it is purchased. This differential treatment has no nexus with the object sought to be achieved. It should not make any difference whether the purchaser is a forest contractor or any other dealer. There is no reason why the tax burden should vary depending upon the purchaser and the method of purchase.

19. This argument in our view proceeds upon a misconception of the scope of the explanation. The explanation was introduced by Act No. 4 of 1974, in order to get over the decision of this Court in Vajhala Venkata Ramana v. State of Andhra Pradesh ([1973] 31 S.T.C. 55.) where it was held that the forest department is a dealer and hence the sale by the forest department should be considered as the first sale. Subsequently entry 145 was introduced by Act No. 49 of 1976. Explanation V has to be read in conjunction with entry 145. If it is so read, it would exclude from its purview the sale by forest contractors of timber in cut sizes, which come under entry 145. It is to be noticed in this connection that explanation V begins with the words 'for the purposes of items 63, 64 and 75'. The explanation therefore cannot have any effect on entry 145. Hence the words 'sale by such contractors of such timber or firewood or bamboos in any form or size' would only refer to sales of goods which did not come within entry 145. In this view, we do not consider that there is any substance in the contention that article 14 of the Constitution is violated, for the reason mentioned by Sri Venkatarama Reddy.

20. No arguments were advanced on the contention that entry 145 violates the freedom of trade under article 19(1)(g) and that it cannot be considered as reasonable restriction in the interests of the general public.

21. In the result, the writ petitions are dismissed with costs. Advocate's fee Rs. 50 in each case.

22. Sri T. Anantha Babu, the learned counsel for the petitioners, makes an oral request for leave to appeal to the Supreme Court. We see no substantial question of law of general importance which requires to be decided by the Supreme Court. Therefore, the oral request is rejected. He also makes an oral request to direct that the interim order in the stay petitions may continue so as to enable the petitioners to apply for special leave to the Supreme Court and obtain appropriate orders. The interim order made during the pendency of the writ petitions in the respective stay petitions will continue for a period of two months.

23. Petitions dismissed.


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