1. This is a petition under Article 226 of the Constitution for the issue of a writ of certiorari or any other appropriate writ calling for the records pertaining to the Notification No. 112, G.O. Ms. No. 566, Revenue, dated nth March, 1960, and quash the same, and pass such other order or orders as this Court may deem fit and proper in the circumstances of the case.
2. The relevant facts may briefly be noticed. The petitioners are a registered partnership firm doing business under the name and style of G. Baliah Setty, B. Satyanarayana and Company. They export ghee on a large scale to States outside Andhra Pradesh. The course of business adopted by them was to purchase ghee from dealers who purchased butter and converted it into ghee. The petitioners are the last purchasers of ghee in the State, and it is the petitioners' case that their vendors had already paid sales tax on their purchase turnover relating to butter, and, therefore, the ghee purchased by them cannot be subject to sales tax as it amounts to double taxation of the same goods. In other words, the petitioners' case is that ghee is only butter clarified to resemble oil, and is prepared by a process of heating butter without altering or changing the butter in substance or quality.
3. The Government of Andhra Pradesh by a Notification G.O. Ms. No. 566, Revenue, dated nth March, 1960, (hereinafter called 'the Notification') issued under Section 41 of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter called 'the Act'), directed the following item and the entry to be added to Schedule III of that Act, viz.,:
12. Butter and ghee, at the point of purchase by the last dealer who buys in the State-4 naye Paise in the rupee.
4. The said notification was made to come into force with effect from 1st April, 1960.
5. It is contended that in and by means of this Notification both butter and ghee are subject to levy of purchase tax from the last purchaser of each of those goods, and that has the effect of double taxation, or taxing the same goods twice over, which is repugnant to the scheme of the Act, and opposed to law. The demand of tax from the petitioners on their purchase turnover under these circumstances is a threat by the State to realise it by using the coercive machinery of the Sales Tax Act and amounts to an infringement of their fundamental right guaranteed under Article 19(1)(g) of the Constitution.
6. The State resisted the petition contending, inter alia, that the allegation that the petitioners purchased ghee only from dealers who purchased butter and converted it into ghee is not a fact which is admitted, and there might be several cases in which the petitioners purchased ghee from their vendors, who might themselves have purchased ghee, but not butter. The statement of the petitioners that they purchased ghee from dealers who paid tax on purchase of butter is incorrect, and they are put to strict proof of the same. The contention that ghee is only butter, and that if ghee and butter are taxed it would amount to double taxation is unsustainable, and is a wrong and unwarranted assumption. Butter, on conversion to ghee, undergoes both physical and chemical changes, and properties in both of them are different and the taxation of those commodities separately would not amount to double taxation. Even assuming that some of the petitioners' vendors paid tax on butter, that did not prevent the authorities from taxing the ghee at the point of last purchase. The notification in question is under the authority of-law conferred by Section 41 of the Act, and does not contravene any of the provisions of the Act, nor is opposed to any notions of public finance.
7. The only ground on which the notification in question is challenged as being illegal is that butter and ghee are one and the same goods, and that ghee is only clarified butter as a result of some heating. The tenability of this contention will be considered a little later.
8. Sri Somasundaram further contends that as his vendors were taxed on their purchases of butter, the petitioners should not be taxed on their purchase of ghee. In order to fully appreciate this contention, the relevant statutory provisions imposing a restriction on double taxation may be considered.
9. Section 5 of the Act, which is the charging section, lays down that (i) the dealers having a total turnover of Rs. 10,000 or more, (2) all casual traders, (3) all agents of non-resident dealers, (4) all dealers trading in goods specified in Schedule II (i.e., goods in respect of which a single point sales tax only is leviable), and (5) all dealers in goods specified in Schedule III (i.e., goods in respect of. which a single point purchase tax only is leviable) irrespective of the turnover in cases falling under (2) to (5) shall be liable to tax. Sub-section (4) provides that the turnover on which a dealer shall be liable to pay tax shall be determined after making such deductions from his total turnover in the manner prescribed. Sub-section (5) lays down that the taxes shall be assessed, levied and collected in the manner prescribed, and then follows the proviso, which is material for the purpose of this case. It is as follows :
(i) in respect of the same transaction, the buyer or the seller, but not both, as determined by such rules as may be prescribed, shall be taxed;
(ii) where a dealer has been taxed in respect of the purchase of any goods, in accordance with the rules referred to in Clause (1) of this proviso, he shall not be taxed again in respect of any sale of such goods effected by him.
10. The effect of this proviso may be stated thus. In respect of one and the same transaction, either the buyer or the seller, but not both, can be taxed ; or, in other words, one transaction one tax. In every transaction of sale, one of the parties would be the seller, and the other would be the buyer, and, according to this clause, only one of them can be taxed, but not both. According to Clause (ii), if the dealer is taxed in respect of the goods purchased by him in accordance with the rules referred to in Clause (1) the same dealer shall not be taxed again in respect of any sale of the same goods effected by him. In order, therefore, that the inhibition in this sub-clause may be attracted, the same dealer must have purchased the goods, and paid the tax, and his sale turnover of the same goods is also sought to be taxed. Whether the goods purchased by him and the goods sold by him are identical or not, would therefore arise only in those cases, in which the same dealer is made liable for the tax twice.
11. In the instant case, it is not the same dealer that is sought to be taxed twice, but different dealers, viz., purchasers of butter (assessee's vendors) and purchasers of ghee (the assessee) and the question of identity of goods would not therefore arise for consideration under the proviso to Section 5. In this view, the question whether butter and ghee are identical commodities or goods need not be considered. The petitioner has not been able to establish that the notification offends Section 5(5), proviso, in any manner whatsoever. Apart from this provision, he is not able to cite any authority for the proposition that an identical commodity cannot be the subject-matter of taxation in the hands of different individuals. On the other hand, the principle of multiple taxation is well-recognised in sales tax law, and under the Act that is the rule, and single point taxation, either on the point of purchase or sale, is an exception, and exists only where it is expressly provided for.
12. In Pullaiah v. Stale of Andhra Pradesh (1960) 2 An. W.R. 39 a Bench of this Court considered the scope of Section 5 (5) and the proviso. The question for consideration in that case was, whether the Government order which permitted the imposition of tax both on groundnut as well as groundnut oil was valid. The contention was that the groundnut oil being the same commodity as groundnut, the oil extracted from the latter is not exigible to tax in view of Section 5(5) of the Act. The learned Judges held that the object of Section 5(5) of the Act is not to tax a transaction twice, but that did not imply a prohibition against the levy of tax on the products of the same commodity, and held that groundnut oil or cake would not answer the description of the same goods as groundnut within the enacting words of Section 5(5) and followed the decision in Chandramouleswara Oil Company, In re,  5 S.T.C. 340. They cited with approval Kayani and Company v. Commissioner of Sales Tax A.I.R. 1953 Hyd. 252 where it was held that rice could not be interpreted as meaning 'cooked rice'. Reliance was also placed on Kosuri Subba Raju v. State of Andhra  7 S.T.C. 479 where it was held that nawar tape (material woven in bands and used as mat for cots) could not be regarded as cloth within the definition of 'cloth' under Section 5(iii) of the Madras General Sales Tax Act, 1939. They also relied on Pithapuram Taluk Tobacco, Cigars and Soda Merchants' Union v. State of Andhra Pradesh  9 S.T.C. 723 where it was ruled that country tobacco which was subject to levy of sales tax at a single purchase point did not include cigars and cheroots; though produced from the same tobacco, the articles manufactured therefrom could not be regarded as tobacco. It was also pointed out that the fact that groundnut oil and groundnut or kernel are not one and the same commodity, is made plain by the fact that while groundnut oil is included in Schedule II as one of the goods in respect of which a single point sales tax was leviable at the sale point, 'oil seeds' which include groundnut is one of the items enumerated in Schedule IV in regard to which a single point tax was leviable at the point of first purchase and that the Legislature would not have included these two commodities in two different Schedules if groundnut and groundnut oil constituted the same goods. On the other hand, it indicated that they are different commodities for the purpose of the Sales Tax Act.
13. In W.P. No. 183/5 of 1956, a Bench of this Court had to consider whether chillies and turmeric when powdered remain the same commodities, and attract the applicability of the second proviso. The learned Judges followed Pithapuram Taluk Tobacco, Cigars and Soda Merchants' Union v. State of Andhra Pradesh  9 S.T.C. 723 Kosuri Stibba Raju v. State of Andhra  7 S.T.C. 479 Berar Oil Industries v. Deputy Commissioner of Commercial Taxes, Anantapur  10 S.T.C. 199 Kayani & Co. v. Commissioner of Sales Tax  4 S.T.C. 387 and Anwarkhan Mehboob Co. v. State of Bombay  II S.T.C. 698 where the Supreme Court ruled that raw tobacco and bidi patti are distinct and different commercial articles, and held that the taxation of chilly powder and turmeric powder is not vitiated by the principle of double taxation, as they could not be regarded as the same goods, viz., chillies and turmeric respectively, within the range of proviso to Section 5(5) of the Hyderabad General Sales Tax Act.
14. We had to consider in Kotak and Company v. State of Andhra Pradesh T.R.C. No. 34 of 1961 since reported at  13 S.T.C. 709 whether a dealer who paid tax at the point of purchase on the cotton purchased by him could also be taxed at the point of the sale of cotton seeds. The contention raised was that cotton seeds formed part of the cotton, and that to tax the dealer on both the occasions amounts to double taxation. We held with reference to Clause (ii) of proviso to Section 5(5) thus :-
What is forbidden is, where a tax has been paid on the goods by the dealer as a purchaser, he shall not be taxed again in respect of any sale of such goods. It is, no doubt, true that the dealer as purchaser of cotton pays the tax on cotton at the purchase point under Schedule IV, item 5. But the goods taxed on the sale point is cotton seed under item 23 of Schedule II. As observed in the above case (Pithapuram Taluk Tobacco, Cigars and Soda Merchants' Union v. The State of Andhra Pradesh  9 S.T.C. 723): 'The policy of taxation is more appropriately the province of the statesmen and of the Legislature rather than of the lawyer or the Courts. It is a public policy dependent not only upon the necessities of administration but also implementation of the scheme to serve the public needs'.
15. We held in that case that cotton seeds cannot be said to be the same goods as cotton.
16. Following these cases we hold that butter and ghee, which are mentioned in the notification as two different commodities, cannot be said to be the same goods.
17. In support of his contention that butter and ghee are identical goods, Sri Somasundaram relied on the meaning of these words given in Encyclopaedia Britannica. In Volume 4, 1958 Edition, at page 468, the meaning of 'butter' is as follows :
As the term is used most commonly, butter is the yellowish or whitish fat of cow's milk as flocculated or solidfied by churning. The commercial product contains not less than 80% and as much as 85% milk fat, 12% to 16% water, about 2% salt (mostly added) and about i% milk curd. The fat consists of glycerides of perhaps eight acids, among them oleic, stearic, palmitic and butyric. The recognized high food value of butter depends predominantly on high food energy, approximately 716 cal. per 100 grams, plus high vitamin A value of about 3,300 international units (annual average) per 100 grams, and substantial amounts of vitamin D. Protein is low, as are vitamins other than A and D, but about 20 mg. of calcium and 16 mg. of phosphorus are present per 100 grams.
* * * *It has long been used and relished by man as a spread in tea and as a cooking fat.
* * * *Much of Indian consumption is of a semifluid, clarified form called ghee.
18. In Volume 10 of Encyclopaedia Britannica, 1953 Edition, at page 323, it is stated thus :
Ghee, clarified butter used in India (Hindu, ghi). The best is prepared from butter of the milk of cows, the less esteemed from that of buffaloes. The butter is melted over a slow fire and set aside to cool; the thick, opaque, whitish, and more fluid portion, or ghee, representing the greater bulk of the butter, is then removed. The less liquid residue mixed with groundnut oil, is sold as an inferior kind of ghee. It may be obtained also by boiling butter over a clear fire, skimming it the while, and, when all the water has evaporated, straining it through a cloth.
* * * *In India, ghee is one of the commonest articles of diet, and indeed enters into the composition of everything eaten by the Brahmins. It is also extensively used in Indian religious ceremonies, being offered as a sacrifice to idols, which are at times bathed in it. Sanskrit treatises on therapeutics describe ghee as cooling, emollient, and stomachic, as capable of increasing the mental powers, and of improving the voice and personal appearance, and as useful in eye-diseases, tympanitis, painful dyspepsia, wounds, ulcers, and other affections. Old ghee is in special repute among the Hindus as a medicinal agent, and its efficacy as an external application is believed by them to increase with its age.
19. Even on a consideration of these passages, we cannot say that ghee and butter serve identical purposes, though as an article of food, ghee may be an equally good substitute for butter.
20. Whatever it may be, when the Legislature has treated these two as two different articles in the notification for the purpose of taxation, it is not the province of Courts to question the policy of the Legislature underlying it.
21. Reliance was also placed on behalf of the petitioners on the recent decision of the Supreme Court in Tungabhadra Industries Limited, Kurnool v. Commercial Tax Officer, Kurnool A.I.R. 1961 S.C. 412. In that case, the assessee claimed deduction under Rule 18 (2) of the Madras General Tax (Turnover and Assessment) Rules, on groundnut, and/or kernel purchased by him and converted into refined oil, or hydrogenated oil. As the raw groundnut oil is converted into refined oil, the processing consisted merely in removing from raw groundnut oil that constituent part of the raw oil which is not really oil, but consisted of free fatty acids, phospotides and unsapo-nifiable matter, and after the removal of that non-oleic matter the oil continues to be groundnut oil, and nothing more. In other words, the processing consisted in the non-oily content of the raw oil being separated and removed, rendering the oily content of the oil 100 per cent, and, therefore, refined oil continued to be groundnut oil within the meaning of Rules 5 (1) (k) and 18 (2), Madras General Sales Tax (Turnover and Assessment) Rules, notwithstanding that such oil does not possess the characteristic colour or taste, odour, etc., of the raw groundnut oil. With respect to the hydrogenated groundnut oil it was held by the Supreme Court that there was no use to which the groundnut oil can be put for which the hydrogenated oil could not be used, nor is there any use to which the hydrogenated oil could not be put for which the raw oil could not be used, and that hydrogenated oil still continues to be 'groundnut oil', notwithstanding the processing, which is merely for the purpose of rendering the oil more stable thus improving its keeping qualities for those who desire to consume groundnut oil, and it was held that in respect of hydrogenated oil also the assessee was entitled to the deduction of the purchase price of the kernel or groundnut under Rule 18 (2).
22. We fail to see how this case can be of any assistance to the petitioner. In this case, the Madras General Sales Tax Act or the Rules or Notification did not specify refined oil and hydrogenated groundnut oil as different commodities for purposes of taxation. The groundnut oil alone was the commodity specified, and the question for consideration was, whether refined oil and hydrogenated oil could also be treated as groundnut oil, or something different. But, in the instant case, butter and ghee having been specified as two different commodities by the Legislature for reasons best known to it, it is not open to the Court to canvass whether they are really different or identical.
23. The contention that the implementation of the notification amounts to double taxation forbidden by the Act, therefore, fails.
24. Apart from the above objections, there is yet another ground on which the writ petition should fail. The petitioners assert that their dealers had paid tax on butter at the purchase- point. That fact is disputed by the State. Even the petitioners had to admit that their vendors did not purchase all the butter, and melt it into ghee. There are some who purchased ghee itself and sold it to the petitioners. That being the case, the facts require to be investigated as to what proportion of the assessee's purchase turnover was from dealers who paid tax on butter. All these have not yet been enquired into by the assessing authority. This Court is ill-suited for, and cannot enter into, an investigation of disputed questions of fact in the exercise of its jurisdiction under Article 226. There is thus no error of law, much less of jurisdiction, justifying the issue of a writ.
25. Further, the Act provides adequate and effective alternative remedies to the petitioner in the event of the provisions of Section 5 (5) of the Act being ignored by the assessing authority, and they have not been availed of by the petitioners. In this view, the petition is premature.
26. For all these reasons, the petition fails. The rule nisi is discharged, and the petition is dismissed with costs.
27. Advocate's fee Rs. 100.