whether the commodities RB Fatty Acid and RB Acid Oil which emerged in the unit of the dealer, which is manufacturing Rice Bran Oil, are different commodities and entities known differently in commercial parlance and whether such emerged commodities are distinct from Rice Bran Oil. Secondly, whether such distinct and different commodities are capable of being put to the same use? Thirdly, whether such distinct and different commodities differ not only in character and economic perspective but also in common and commercial parlance understanding? On the application of the tests and on consideration of the facts and circumstances of the case, we are of the considered view that RB Fatty Acid and RB Acid Oil are distinct and different from Rice Bran Oil. Admittedly Rice Bran Oil is an edible oil whereas the other two commodities viz., RB Fatty Acid and RB Acid Oil are useful for manufacturing of soaps and are not edible. How an article or commodity is understood in the trade i.e., by the dealer or customer is also one of the important considerations. Functional utility and predominant usage have also to be taken into account while determining the class of commodity. The law is well settled that in the law dealing with sales tax, the taxable event is the sale and not the manufacture of goods. Nevertheless, if the question is whether a new commercial commodity has come into existence or not, it is necessary to examine whether the goods ceased to be the goods of one taxable description and had become commercially different commodity of different category and description during the course of manufacture. When un-refined raw rice bran oil is subjected to a process of refining, two distinct and different commodities namely RB Fatty Acid and RB Acid Oil had also emerged. Therefore, the manufacturing process had altered the identity of one commercial commodity and new commercial commodities had emerged. The law of sales tax is also concerned with goods of various descriptions. It cannot be disputed that the two commodities namely RB Fatty Acid and RB Acid Oil, which are of commercially different category and description, had emerged during the process of manufacture of Rice Bran Oil. The principle which is fairly well settled is that the words or expressions under the statute must be construed in the sense in which they are understood in the trade, by the dealer and the consumer because it is they who are concerned with it and it is the sense in which they understand it that constitutes the definitive index of the legislative intention when the Statute was enacted. Therefore, the test is how the product is identified by the class or section of people dealing with or using the product. That is the test which is attracted whenever the Statute does not contain any definition. It is generally, by its functional character that a product is so identified. Therefore, coming to the commodities in the case on hand, Rice Bran Oil which is fit for human consumption can only be a different and distinct commodity from the other two commodities viz., RB Fatty Acid and RB Acid Oil as the former is fit for human consumption while the latter two commodities are only used in the process of manufacture of soaps/cattle feed. It is pertinent to note that RB fatty acid and RB acid oil and Rice Bran oil are considered as distinct and different commodities for the purpose of levy and collection of excise duty. 7. (e) Therefore, we do not find any merit in the contention of the learned counsel for the appellant/dealer that RB Acid Oil and RB Fatty Acid could not be considered as distinct and different from Rice Bran Oil. As a sequel we find that the order of the respondent, which is impugned, is in accordance with the law and does not brook interference. The point is accordingly answered against the appellant/dealer. In the result, the Special Appeal is dismissed. There shall be no order as to costs.
THE HONBLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE M. SEETHARAMA M.SEETHARAMA MURTI
Special Appeal No.1 of 2004
12-03-2015
M/s.Sri Venkata Rama Oil Industries Limited, Hussainpuram, Samalkot, East
Godavari District.. Appellant
Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad.... Respondent
Counsel for the appellant: Sri S.Krishna Murthy
Counsel for Respondent No.1 : None appeared
Counsel for Respondent No.2 : Special Standing Counsel for
Commercial Taxes
<Gist :
>Head Note:
? Cases referred:
1. 1989(4) E.L.T. 287 (SC)
2. 1960 (Vol.XI) STC page 827
3. 1988 (Vol.7) APSTJ page 4
4. 1994 (Vol.95) STC page 181
THE HONBLE SRI JUSTICE K.C. BHANU
AND
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI
Spl.A.No.1 of 2004
JUDGMENT: (per Honble Sri Justice M. Seetharama Murti)
This special appeal by the appellant/dealer is directed against the
orders dated 23.09.2003 of the Commissioner of Commercial Taxes in
CCTs.Ref.No.LV(3)/2409/2002-II.
2. We have heard the submissions of the learned counsel for the
appellant and the learned Special Standing Counsel for Commercial
Taxes. We have perused the material record.
3. The facts, which are necessary for consideration, in brief, are as
follows: - The appellant/dealer is an assessee on the rolls of Commercial
Tax Officer, Peddapuram (the CTO, for brevity). They were finally
assessed for the year 1998-99 under the CST Act by the said assessing
authority and their turnovers are as under: Gross turnover:
Rs.17,67,76,050/- ; Exempted Turnover: Rs.13,58,41,010/- and Net
Turnover: Rs.4,09,35,040/-. A tax of Rs.2,23,875/- was levied. The
Assistant Commissioner (CT) (Intelligence), Kakinada (the AC (CT) for
brevity) vide proceedings dated 24.06.1999 in CF.No.75/98-99 had
initially assessed the dealers provisionally for the said year under the CST
Act and levied tax @ 10% on the sales of rice bran fatty acid and rice
bran acid oil (RB fatty acid and RB acid oil for brevity) treating them
as general goods falling under the VII schedule of the APGST Act.
Aggrieved of the orders of the A C (CT) (Intelligence), the appellant had
preferred an appeal before the Appellate Deputy Commissioner (CT)
(the ADC (CT) for brevity) in E.94/1999-2000 inter alia contending that
the said goods are to be treated as falling under entry 24(c) of the first
schedule of the APGST Act but not as general goods and that therefore,
tax has to be levied at the rate of 1% as applicable to the goods under
the said entry. The ADC (CT) while allowing the said appeal had held
that rice bran acid oil and rice bran fatty acid though not specifically
mentioned in entry 24(c) of first schedule of the APGST Act are to be
held as falling under the said entry 24(c) and are, therefore, liable to tax
at 2% under the APGST Act. Having held so, he had directed the
assessing authority (CTO) to take up the final assessment of the dealers
and pass fresh orders. Pursuant to the said orders of the said ADC, the
CTO, Peddapuram had passed final assessment orders through the
reference vide GINO.10087/98-99 dated 30.03.2001 levying tax at 1% on
the sales of RB fatty acid and RB acid oil. The Commissioner/respondent
herein having examined the orders of the ADC (CT), Kakinada had found
that the said orders are not correct and are prejudicial to the interests of
the revenue of the State and had, therefore, entertained a suo motu
revision by exercising the revisional jurisdiction vested in him under
Section 9(2) of the CST Act read with Section 20(1) of the APGST Act and
had proposed to set aside the orders of the ADC (CT), Kakinada and also
the consequential final orders of the CTO, Peddapuram. Accordingly, the
Commissioner had issued a show cause notice. Finally, on merits, the
Commissioner had held that RB fatty acid and RB Acid oil are different
and distinct from rice bran oil/refined oil and had, therefore, set aside
the orders of the ADC (CT) and the consequential orders of the CTO to
the extent of the relevant disputed turnovers. Thus, the Commissioner
by the orders impugned had revised the rate of tax from 1% to 4% on the
interstate sales turnovers of the following goods.
Turnover
Rate of tax
1.
Sales of R.B.Fatty Acid
(covered by C forms)
Rs.1,46,47,870/-
4%
2.
Sales of R.B. Acid Oil
(covered by C Forms)
Rs.13,52,720/-
4%
Aggrieved of the said orders of the respondent, the dealer had preferred
this appeal.
3. (a) The learned counsel for the appellant would contend as
follows: - The ADC (CT) had made personal inspection of the business
premises of the appellant and had observed the method of production of
refined rice bran oil and other intermediary byproducts in the
manufacturing unit. In fact, he had observed that there are no separate
units to produce different commodities and that rice bran oil was being
produced by a continuous process in a single unit. He had also noted
that only the raw unrefined rice bran crude oil becomes refined after the
process and that the intermediary byproducts are not separately
produced by making use of separate manufacturing units and that the
unit is manufacturing refined oil as a finished product and in the process
of refining, the unit is removing the intermediary products viz., RB fatty
acid and RB acid oil as concomitant products. Thus, the ADC had rightly
concluded that the said RB acid oil and RB fatty acid continue to be Rice
Bran Oil. The ADC, before passing the orders, had bestowed his
attention to the process of refining by making a personal inspection and
had, in detail, examined the processes involved in obtaining Rice Bran
Oil, RB fatty acid and RB acid oil. Hence, the finding of the ADC that RB
acid oil and RB fatty acid are intermediate products and are not being
separately produced in separate manufacturing units and that they are
generated in a single unit in a continuous process of manufacturing and
that they cannot be treated as different commodities from Rice Bran Oil
is a well considered finding. The Commissioner had found fault with such
unassailable finding without properly appreciating the facts and without
assigning any valid reasons. The ADC had quoted extensively from the
various decisions in support of his findings and, therefore, the findings of
the ADC are sustainable and are unassailable both under facts and in law.
By Act No.30 of 2001 entry 24-F was inserted with effect from
01.11.2000. The said entry reads as under:
24-F
Sledge Oil, Acid Oil
& Fatty Acid
At the point of first
sale in the State
8 paise
01.11.2000
It is, therefore, clear that RB fatty acid and RB acid oil are considered as
distinct and different commodities for the purpose of levy and collection
of tax under the APGST Act only with effect from 01.11.2000 and not
before. The subject assessment year relates to the period prior to the
said amendment. The Commissioner, Commercial Taxes in his impugned
orders had erroneously relied upon the decisions which are inapplicable
to the facts of the case of the appellant.
3. (b) In support of his contentions, the learned counsel for the
appellant had placed reliance on the following decisions.
1. Collector of C.Ex v. Jayant Oil Mills Pvt. Ltd.,
2. Tungabhadra Industries Ltd., Kurnool v. Commercial Tax
Officer, Kurnool
3. The State of A.P. v. M/s.Coromandel Agro Products and Oils
Ltd.,
4. State of Andhra Pradesh v. Modern Proteins Ltd., (and another
appeal)
4. On the other hand, the learned Special Standing Counsel would
contend as follows: - Rice Bran Oil is altogether different from RB fatty
acid and RB acid oil. They differ not only in character and nature but
also in common parlance understanding. They are also different in
economical perspective. The relevant entries in the statute need no
interpretation and they have to be assigned the plain meaning they
convey on a plain reading. All the three commodities are understood as
different commodities by the customers and traders. As soon as a
separate commercial commodity comes into existence during the process
of manufacture by one unit or several units, such commodity, if it is a
different commodity, is a taxable entity or commodity for the purpose of
sales tax. Even in common commercial parlance, the said three
commodities are distinct and different. Admittedly Rice Bran Oil is fit
for human consumption whereas RB fatty acid and RB acid oil are not fit
for human consumption and they are used in manufacture of soaps and
cattle feed. Therefore, the order impugned is sustainable and does not
call for any interference. There is no merit in the special appeal.
5. We have given earnest consideration to the facts and the
submissions. We have carefully gone through the relevant provisions and
the entries in the schedule of the statute.
6. Now the point for determination is:
Whether RB Acid Oil and RB Fatty Acid can be
considered as distinct and different from Rice Bran Oil?
7. POINT:
The facts are not in dispute.
7. (a) Since the first contention of the appellant/dealer is based
upon the amendment introducing entry 24-F with effect from 01.11.2000
by Act No.30 of 2001, it is necessary to refer to the relevant entries
hereunder. Entry 24-A reads as under:
24-A
Vegetable Oils, (non-
refined) including
groundnut oil, gingelly oil,
safflower oil, sunflower oil,
soya been oil, mustard oil,
kusum oil, tobacco seed oil,
castor oil, washed cotton
seed oil other than rice
bran oil and coconut oil.
At the point of first sale
in the State
2
4
16.08.1995
01.01.2000
By Act No.30 of 2001 entry 24-F was inserted with effect from
01.11.2000. The said entry reads as under:
24-F
Sledge Oil, Acid Oil &
Fatty Acid
At the point of first
sale in the State
8 paise
01.11.2000
Entry 24-C of Schedule I of APGST Act reads as under:
24-C
Rice bran oil (1206)
At the point of first
sale in the State
2
16.08.1995
24-B reads as under:
24-B
Vegetable
oil(refined)(1205)
At the point of first
sale in the State
2
16.08.1995
By Act 19 of 2000 item 24-B was substituted and the words obtained
from non refined oil mentioned in 24-A other than rice bran oil were
omitted and the rate of tax was increased to 4 paise with effect from
01.01.2000. However, TOT was exempted by G.O.Ms.No.911. Rev. dated
31.12.1999 with effect from 01.01.2000.
Reverting to the facts of the present case, 1998-99 is the year of
assessment in the case on hand. There is no entry in the said schedule
dealing separately with acid oil and fatty acid by that year. Since
entry 24-F was introduced by GOMs.No.751 Rev. dated 23.10.2000 with
effect from 01.11.2000 it is contended on behalf of the appellant/dealer
that it is clear that RB fatty acid and RB acid oil are considered as
distinct and different commodities for the purpose of levy and collection
of tax under the APGST Act only with effect from 01.11.2000 and not
before and that since the subject assessment year relates to the period
prior to the said amendment, the ADCs Order is unassailable. The said
contention based on the amendment to the entries of Schedule I cannot
be countenanced. Amendment to entries may be made by the legislature
in its wisdom for various reasons. An amendment may be made and a
commodity like one of the many vegetable oils may be specially brought
under a separate entry by such amendment if the legislature intends to
subject that commodity to a different rate of tax than the other
commodities falling under the same category like vegetable oils.
Similarly, an amendment to the schedule may also be brought in to
explain the existing position rather than altering the existing position.
An amendment may also be made to explain an ambiguity and avoid any
confusion. Therefore, the contention of the appellant/dealer that entry
24-F dealing with acid oil and fatty acid was introduced by way of an
amendment of schedule I is not going to advance the case of the
appellant.
7. (b) The Notification IV issued by the State of A.P. under the CST
Act, 1956 and which is relevant reads as follows:
In exercise of the powers conferred by sub-section (5) of Section
8 of the Central Sales Tax Act, 1956 (Act 74 of 1956), the
Governor of Andhra Pradesh hereby directs that the tax payable
under sub-section (1) of Section 8 of the said Act by a dealer
having his place of business in the State of Andhra Pradesh shall
in respect of the sales in the course of inter-State trade or
commerce, of rice bran oil be at the reduced rate of one paise in
the rupee.
This notification shall be deemed to have come into force with
effect from 01.04.1997 and shall be in force upto 31st March,
1999 only.
7. (c) It is necessary to now advert to the cited decisions. In the
decision in Collector of C. Ex. v. Jayant Oil Mills Pvt. Ltd., (1st cited)
the facts are as follows: - The respondent therein manufactured
hydrogenated rice bran oil which was sold to industrial consumers. The
said hydrogenated rice bran oil is used as raw material in the
manufacture of soap. The respondent had classified the same under
Tariff Item 12 for approval and claimed exemption under a Notification.
However the Assistant Collector, Central Excise held that the
hydrogenated rice bran oil was classifiable under Tariff Item 68 of the
Central Excise Tariff because hydrogenated rice bran oil is solid at the
ordinary temperature and therefore, should be considered as fat and not
as oil. When the said order was challenged, the Appellate Collector had
taken a view that even after the super hardening or hydrogenation, the
vegetable oil did not cease to be oil even when it became solid.
However, considering that the order of the Appellate Collector was not
proper, legal and correct, the Central Government, Ministry of Finance,
Department of Revenue had issued a show cause notice requiring to show
as to why the order of the Appellate Collector should not be set aside
and that of the Assistant Collector be restored. The matter came up
before CEGAT. The CEGAT in its impugned order noted that the appeal
was concluded by the judgment of the five member Bench of the
Tribunal in the case of M/s.Tata Oil Mills Co. Ltd.,[1986 (24) ELT 290] and
held that the order dated 30.11.1981 of the Appellate Collector was
correct and dismissed the appeal of the appellant. Therefore, the
appellant i.e., the Collector of Central Excise under Section 35L of the
Central Excises and Salt Act, 1944 had preferred an appeal from the
orders of the Customs, Excise and Gold (Control) Appellate Tribunal. In
the above stated factual background, the Supreme Court held as follows:
We are of the opinion that the Tribunal particularly emphasized
that the hardened technical oil is the same thing as the oil from
which it is made. It is clearly akin to the oil in homologue, a
product of scientific modification but unaltered in its essential
character. Therefore, in our opinion, the Tribunal was right in the
conclusion it arrived at.
The ratio in the decision is to the following effect.
Edible rice bran oil falling under Tariff Item 12 CET would even
after extra hardening or the process of hydrogenation will not fall
under Tariff item 68 but will continue to fall under Item 12 for two
reasons firstly the essential properties of the rice bran oil are not
changed even after process of hydrogenation/hardening as there is
hardly any distinction between vegetable oil in liquid form and
hydrogenated oil which is hardened with a melting point higher
than 41 degree centigrade, and secondly restore to the residuary
entry 68 cannot be made when there is a specific entry in Tariff
Item 12 for the goods in question. The subject goods admittedly
produced for industrial purposes and not for human consumption.
Hence, the ratio in the said decision is not applicable to the facts of the
present case.
In Tungabhadra Industries Ltd., (2nd cited) the question was as to
whether hydrogenated oil was not groundnut oil. One of the questions
also considered was whether if beyond the process of refinement of the
oil, the oil is hardened, again by the use of chemical processes it is
rendered any the less groundnut oil. The Supreme Court held as
follows:
No-doubt several oils are normally viscous fluids, but they do
harden and assume semi-solid condition on the lowering of the
temperature. Though groundnut oil is, at normal temperature, a
viscous liquid, it assumes a semi-solid condition if kept for a long
enough time in a refrigerator. It is therefore not correct to say
that a liquid state is an essential characteristic of a vegetable oil
and that if the oil is not liquid, it ceases to be oil. Mowrah oil and
Dhup oil are instances where vegetable oils assume a semi-solid
state even at normal temperatures. Neither these, nor coconut oil
which hardens naturally on even a slight fall in temperature, could
be denied the name of oils because of their not being liquid. Other
fats like ghee are instances where the physical state does not
determine the identity of the commodity.
Therefore, it is clear from the facts of the reported case that both
the commodities namely hydrogenated oil and the groundnut oil serve
the same purpose as cooking medium and are having identical food value
and therefore, it was held hydrogenated oil still continues to be
groundnut oil notwithstanding the processing. Hence, this decision is not
helpful to the appellant.
In The State of A.P. v. M/s.Coromandel Agro products and oils
Ltd.,( 3 cited) the question that arose for consideration was whether
Sledge Oil and Cotton seed acid oil are vegetable oils falling under entry
128 of the First schedule to attract lower rate of tax u/s.8(2-A) of the
C.S.T.Act.? The Tribunal held that the said oils are liable to tax under
entry 128 at reduced rate. The department contended that such oils are
general goods and are liable to tax at higher rates under the CST Act.
This Court while dealing with entry 128 held that the said entry relates
to vegetable oils and that the various oils mentioned therein are only
illustrative and that the entry specifically says vegetable oils including
those mentioned therein and that in the circumstances there is no
warrant for placing the construction that the said entry relates only to
those vegetable oils which are edible. Further, having regard to the
wide language used, it was held that it is not possible to restrict it only
to edible vegetable oils. This Court had also noted that groundnut oil
which is also edible oil is shown as a separate entry no.24 and therefore,
negatived the contention that entry 128 relates to edible oils.
In State of Andhra Pradesh v. Modern Proteins Ltd (4th cited)
the question that fell for consideration was whether groundnut protein
flour is a deoiled cake within entry 29 of Schedule I of the Act? The
Supreme Court considered the facts like process of manufacture and the
resultant produce and held as follows:
It is true that the analyst report in this appeal does indicate that both
deoiled cake and groundnut protein flour contain common properties
but the use and purpose being different and distinct, they cannot be
considered to be the same commodity. The groundnut protein flour is
an edible protein food for human consumption and is a different
commercially marketable entity and thereby is distinct from deoiled
cake for animal feed though obtained in the course of same process at
different stages. Both emerge into different and distinct commodities
commercially known in common parlance for distinct and different
use. Thereby groundnut protein flour did not remain part of the
genus, i.e., deoiled cake, but became a new and different entity
known in the commercial parlance. Accordingly, it is exigible to CST at
the relevant time at 4 per cent. The appeals, therefore, are allowed.
In the latest decision in Aluva Sugar Agency v. State of Kerala
the short question which arose for consideration was Whether sale of
margarine is to be taxed at 8% or 4% under the provisions of Kerala
General Sales Tax Act, 1963? Under the said question the main issue
that was considered was whether margarine can be treated as edible
oil and thus falls under entry 17A of the said Act. The Supreme Court
held as follows:
Margarine is a generic term and it is used as a substitute for butter. It
is used in preparation of food articles and specially used for preparing
bakery products. For the purpose of manufacturing margarine, refined
and/or hydrogenated oils of sun-flower, soyabean, cotton seed,
palmoline, palm and sesame oils are used. Moreover, vegetable oils,
salt, permitted emulsifiers and stabilizers are also used for
manufacturing margarine. So far as the margarine manufactured by
the appellant is concerned, it is made only from vegetable oils as
stated by the appellant and as borne out from the record. The
margarine manufactured by the appellant is exclusively used as raw-
material by bakeries and those who manufacture confectionaries.
Looking to the contents of margarine, it is clear that it contains all
edible things. Margarine is used exclusively as a raw material for
preparing bakery products and is also used in confectionary industry.
Like butter, margarine also contains almost 80% fat and remaining
constituents of margarine are edible things which are added thereto by
the manufactures of margarine. Vegetable and hydrogenated oils are
used in manufacturing margarine and as it is used for making eatables,
margarine is also edible though it is not used for normal cooking as
other oils like coconut, sunflower, soyabean, sesame oils are used but
it cannot be disputed that it is an edible oil.
The Supreme Court further held as follows:
In the aforestated circumstances, one has to consider whether
margarine can be considered as an edible oil. We clearly understand
that edible oil is that oil which can be used for human consumption. It
is not necessary that all edible things should be consumed in the form
in which they are available. There are number of ingredients used in
cooking for preparation of food articles which we do not consume in
the same form but they are used in preparation of food articles which
are consumed.
So as to simplify the conclusion, we may say that normally anything
which is used for preparation of a food article is edible because
ultimately it is being consumed by human beings. Though one may not
consume margarine directly or may not use for normal cooking, the
fact is that margarine is used for preparing bakery items which are
consumed by human beings and, therefore, margarine is also edible.
Having around 80% fat, and being in the nature of oil, in our opinion, it
should be considered as edible oil.
7. (d) We have gone through the cited decisions carefully. From a
careful reading of the decisions and a conspectus of the legal position, it
emerges that the following tests have to be applied in a case of this
nature. Firstly, it is to be examined as to whether the commodities RB
Fatty Acid and RB Acid Oil which emerged in the unit of the dealer,
which is manufacturing Rice Bran Oil, are different commodities and
entities known differently in commercial parlance and whether such
emerged commodities are distinct from Rice Bran Oil. Secondly, whether
such distinct and different commodities are capable of being put to the
same use? Thirdly, whether such distinct and different commodities
differ not only in character and economic perspective but also in
common and commercial parlance understanding? On the application of
the tests and on consideration of the facts and circumstances of the
case, we are of the considered view that RB Fatty Acid and RB Acid Oil
are distinct and different from Rice Bran Oil. Admittedly Rice Bran Oil is
an edible oil whereas the other two commodities viz., RB Fatty Acid and
RB Acid Oil are useful for manufacturing of soaps and are not edible.
How an article or commodity is understood in the trade i.e., by the
dealer or customer is also one of the important considerations.
Functional utility and predominant usage have also to be taken into
account while determining the class of commodity. The law is well
settled that in the law dealing with sales tax, the taxable event is the
sale and not the manufacture of goods. Nevertheless, if the question is
whether a new commercial commodity has come into existence or not, it
is necessary to examine whether the goods ceased to be the goods of one
taxable description and had become commercially different commodity
of different category and description during the course of manufacture.
When un-refined raw rice bran oil is subjected to a process of refining,
two distinct and different commodities namely RB Fatty Acid and RB Acid
Oil had also emerged. Therefore, the manufacturing process had altered
the identity of one commercial commodity and new commercial
commodities had emerged. The law of sales tax is also concerned with
goods of various descriptions. It cannot be disputed that the two
commodities namely RB Fatty Acid and RB Acid Oil, which are of
commercially different category and description, had emerged during the
process of manufacture of Rice Bran Oil. The principle which is fairly
well settled is that the words or expressions under the statute must be
construed in the sense in which they are understood in the trade, by the
dealer and the consumer because it is they who are concerned with it
and it is the sense in which they understand it that constitutes the
definitive index of the legislative intention when the Statute was
enacted. Therefore, the test is how the product is identified by the class
or section of people dealing with or using the product. That is the test
which is attracted whenever the Statute does not contain any definition.
It is generally, by its functional character that a product is so identified.
Therefore, coming to the commodities in the case on hand, Rice Bran Oil
which is fit for human consumption can only be a different and distinct
commodity from the other two commodities viz., RB Fatty Acid and RB
Acid Oil as the former is fit for human consumption while the latter two
commodities are only used in the process of manufacture of soaps/cattle
feed. It is pertinent to note that RB fatty acid and RB acid oil and Rice
Bran oil are considered as distinct and different commodities for the
purpose of levy and collection of excise duty.
7. (e) Therefore, we do not find any merit in the contention of the
learned counsel for the appellant/dealer that RB Acid Oil and RB Fatty
Acid could not be considered as distinct and different from Rice Bran Oil.
As a sequel we find that the order of the respondent, which is impugned,
is in accordance with the law and does not brook interference. The point
is accordingly answered against the appellant/dealer.
8. In the result, the Special Appeal is dismissed. There shall be no
order as to costs.
Miscellaneous petitions pending, if any, in this appeal shall stand
closed.
_______________
K.C. BHANU, J
________________________
M. SEETHARAMA MURTI, J
12.03.2015
Special Appeal No.1 of 2004
12-03-2015
M/s.Sri Venkata Rama Oil Industries Limited, Hussainpuram, Samalkot, East
Godavari District.. Appellant
Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad.... Respondent
Counsel for the appellant: Sri S.Krishna Murthy
Counsel for Respondent No.1 : None appeared
Counsel for Respondent No.2 : Special Standing Counsel for
Commercial Taxes
<Gist :
>Head Note:
? Cases referred:
1. 1989(4) E.L.T. 287 (SC)
2. 1960 (Vol.XI) STC page 827
3. 1988 (Vol.7) APSTJ page 4
4. 1994 (Vol.95) STC page 181
THE HONBLE SRI JUSTICE K.C. BHANU
AND
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI
Spl.A.No.1 of 2004
JUDGMENT: (per Honble Sri Justice M. Seetharama Murti)
This special appeal by the appellant/dealer is directed against the
orders dated 23.09.2003 of the Commissioner of Commercial Taxes in
CCTs.Ref.No.LV(3)/2409/2002-II.
2. We have heard the submissions of the learned counsel for the
appellant and the learned Special Standing Counsel for Commercial
Taxes. We have perused the material record.
3. The facts, which are necessary for consideration, in brief, are as
follows: - The appellant/dealer is an assessee on the rolls of Commercial
Tax Officer, Peddapuram (the CTO, for brevity). They were finally
assessed for the year 1998-99 under the CST Act by the said assessing
authority and their turnovers are as under: Gross turnover:
Rs.17,67,76,050/- ; Exempted Turnover: Rs.13,58,41,010/- and Net
Turnover: Rs.4,09,35,040/-. A tax of Rs.2,23,875/- was levied. The
Assistant Commissioner (CT) (Intelligence), Kakinada (the AC (CT) for
brevity) vide proceedings dated 24.06.1999 in CF.No.75/98-99 had
initially assessed the dealers provisionally for the said year under the CST
Act and levied tax @ 10% on the sales of rice bran fatty acid and rice
bran acid oil (RB fatty acid and RB acid oil for brevity) treating them
as general goods falling under the VII schedule of the APGST Act.
Aggrieved of the orders of the A C (CT) (Intelligence), the appellant had
preferred an appeal before the Appellate Deputy Commissioner (CT)
(the ADC (CT) for brevity) in E.94/1999-2000 inter alia contending that
the said goods are to be treated as falling under entry 24(c) of the first
schedule of the APGST Act but not as general goods and that therefore,
tax has to be levied at the rate of 1% as applicable to the goods under
the said entry. The ADC (CT) while allowing the said appeal had held
that rice bran acid oil and rice bran fatty acid though not specifically
mentioned in entry 24(c) of first schedule of the APGST Act are to be
held as falling under the said entry 24(c) and are, therefore, liable to tax
at 2% under the APGST Act. Having held so, he had directed the
assessing authority (CTO) to take up the final assessment of the dealers
and pass fresh orders. Pursuant to the said orders of the said ADC, the
CTO, Peddapuram had passed final assessment orders through the
reference vide GINO.10087/98-99 dated 30.03.2001 levying tax at 1% on
the sales of RB fatty acid and RB acid oil. The Commissioner/respondent
herein having examined the orders of the ADC (CT), Kakinada had found
that the said orders are not correct and are prejudicial to the interests of
the revenue of the State and had, therefore, entertained a suo motu
revision by exercising the revisional jurisdiction vested in him under
Section 9(2) of the CST Act read with Section 20(1) of the APGST Act and
had proposed to set aside the orders of the ADC (CT), Kakinada and also
the consequential final orders of the CTO, Peddapuram. Accordingly, the
Commissioner had issued a show cause notice. Finally, on merits, the
Commissioner had held that RB fatty acid and RB Acid oil are different
and distinct from rice bran oil/refined oil and had, therefore, set aside
the orders of the ADC (CT) and the consequential orders of the CTO to
the extent of the relevant disputed turnovers. Thus, the Commissioner
by the orders impugned had revised the rate of tax from 1% to 4% on the
interstate sales turnovers of the following goods.
Turnover
Rate of tax
1.
Sales of R.B.Fatty Acid
(covered by C forms)
Rs.1,46,47,870/-
4%
2.
Sales of R.B. Acid Oil
(covered by C Forms)
Rs.13,52,720/-
4%
Aggrieved of the said orders of the respondent, the dealer had preferred
this appeal.
3. (a) The learned counsel for the appellant would contend as
follows: - The ADC (CT) had made personal inspection of the business
premises of the appellant and had observed the method of production of
refined rice bran oil and other intermediary byproducts in the
manufacturing unit. In fact, he had observed that there are no separate
units to produce different commodities and that rice bran oil was being
produced by a continuous process in a single unit. He had also noted
that only the raw unrefined rice bran crude oil becomes refined after the
process and that the intermediary byproducts are not separately
produced by making use of separate manufacturing units and that the
unit is manufacturing refined oil as a finished product and in the process
of refining, the unit is removing the intermediary products viz., RB fatty
acid and RB acid oil as concomitant products. Thus, the ADC had rightly
concluded that the said RB acid oil and RB fatty acid continue to be Rice
Bran Oil. The ADC, before passing the orders, had bestowed his
attention to the process of refining by making a personal inspection and
had, in detail, examined the processes involved in obtaining Rice Bran
Oil, RB fatty acid and RB acid oil. Hence, the finding of the ADC that RB
acid oil and RB fatty acid are intermediate products and are not being
separately produced in separate manufacturing units and that they are
generated in a single unit in a continuous process of manufacturing and
that they cannot be treated as different commodities from Rice Bran Oil
is a well considered finding. The Commissioner had found fault with such
unassailable finding without properly appreciating the facts and without
assigning any valid reasons. The ADC had quoted extensively from the
various decisions in support of his findings and, therefore, the findings of
the ADC are sustainable and are unassailable both under facts and in law.
By Act No.30 of 2001 entry 24-F was inserted with effect from
01.11.2000. The said entry reads as under:
24-F
Sledge Oil, Acid Oil
& Fatty Acid
At the point of first
sale in the State
8 paise
01.11.2000
It is, therefore, clear that RB fatty acid and RB acid oil are considered as
distinct and different commodities for the purpose of levy and collection
of tax under the APGST Act only with effect from 01.11.2000 and not
before. The subject assessment year relates to the period prior to the
said amendment. The Commissioner, Commercial Taxes in his impugned
orders had erroneously relied upon the decisions which are inapplicable
to the facts of the case of the appellant.
3. (b) In support of his contentions, the learned counsel for the
appellant had placed reliance on the following decisions.
1. Collector of C.Ex v. Jayant Oil Mills Pvt. Ltd.,
2. Tungabhadra Industries Ltd., Kurnool v. Commercial Tax
Officer, Kurnool
3. The State of A.P. v. M/s.Coromandel Agro Products and Oils
Ltd.,
4. State of Andhra Pradesh v. Modern Proteins Ltd., (and another
appeal)
4. On the other hand, the learned Special Standing Counsel would
contend as follows: - Rice Bran Oil is altogether different from RB fatty
acid and RB acid oil. They differ not only in character and nature but
also in common parlance understanding. They are also different in
economical perspective. The relevant entries in the statute need no
interpretation and they have to be assigned the plain meaning they
convey on a plain reading. All the three commodities are understood as
different commodities by the customers and traders. As soon as a
separate commercial commodity comes into existence during the process
of manufacture by one unit or several units, such commodity, if it is a
different commodity, is a taxable entity or commodity for the purpose of
sales tax. Even in common commercial parlance, the said three
commodities are distinct and different. Admittedly Rice Bran Oil is fit
for human consumption whereas RB fatty acid and RB acid oil are not fit
for human consumption and they are used in manufacture of soaps and
cattle feed. Therefore, the order impugned is sustainable and does not
call for any interference. There is no merit in the special appeal.
5. We have given earnest consideration to the facts and the
submissions. We have carefully gone through the relevant provisions and
the entries in the schedule of the statute.
6. Now the point for determination is:
Whether RB Acid Oil and RB Fatty Acid can be
considered as distinct and different from Rice Bran Oil?
7. POINT:
The facts are not in dispute.
7. (a) Since the first contention of the appellant/dealer is based
upon the amendment introducing entry 24-F with effect from 01.11.2000
by Act No.30 of 2001, it is necessary to refer to the relevant entries
hereunder. Entry 24-A reads as under:
24-A
Vegetable Oils, (non-
refined) including
groundnut oil, gingelly oil,
safflower oil, sunflower oil,
soya been oil, mustard oil,
kusum oil, tobacco seed oil,
castor oil, washed cotton
seed oil other than rice
bran oil and coconut oil.
At the point of first sale
in the State
2
4
16.08.1995
01.01.2000
By Act No.30 of 2001 entry 24-F was inserted with effect from
01.11.2000. The said entry reads as under:
24-F
Sledge Oil, Acid Oil &
Fatty Acid
At the point of first
sale in the State
8 paise
01.11.2000
Entry 24-C of Schedule I of APGST Act reads as under:
24-C
Rice bran oil (1206)
At the point of first
sale in the State
2
16.08.1995
24-B reads as under:
24-B
Vegetable
oil(refined)(1205)
At the point of first
sale in the State
2
16.08.1995
By Act 19 of 2000 item 24-B was substituted and the words obtained
from non refined oil mentioned in 24-A other than rice bran oil were
omitted and the rate of tax was increased to 4 paise with effect from
01.01.2000. However, TOT was exempted by G.O.Ms.No.911. Rev. dated
31.12.1999 with effect from 01.01.2000.
Reverting to the facts of the present case, 1998-99 is the year of
assessment in the case on hand. There is no entry in the said schedule
dealing separately with acid oil and fatty acid by that year. Since
entry 24-F was introduced by GOMs.No.751 Rev. dated 23.10.2000 with
effect from 01.11.2000 it is contended on behalf of the appellant/dealer
that it is clear that RB fatty acid and RB acid oil are considered as
distinct and different commodities for the purpose of levy and collection
of tax under the APGST Act only with effect from 01.11.2000 and not
before and that since the subject assessment year relates to the period
prior to the said amendment, the ADCs Order is unassailable. The said
contention based on the amendment to the entries of Schedule I cannot
be countenanced. Amendment to entries may be made by the legislature
in its wisdom for various reasons. An amendment may be made and a
commodity like one of the many vegetable oils may be specially brought
under a separate entry by such amendment if the legislature intends to
subject that commodity to a different rate of tax than the other
commodities falling under the same category like vegetable oils.
Similarly, an amendment to the schedule may also be brought in to
explain the existing position rather than altering the existing position.
An amendment may also be made to explain an ambiguity and avoid any
confusion. Therefore, the contention of the appellant/dealer that entry
24-F dealing with acid oil and fatty acid was introduced by way of an
amendment of schedule I is not going to advance the case of the
appellant.
7. (b) The Notification IV issued by the State of A.P. under the CST
Act, 1956 and which is relevant reads as follows:
In exercise of the powers conferred by sub-section (5) of Section
8 of the Central Sales Tax Act, 1956 (Act 74 of 1956), the
Governor of Andhra Pradesh hereby directs that the tax payable
under sub-section (1) of Section 8 of the said Act by a dealer
having his place of business in the State of Andhra Pradesh shall
in respect of the sales in the course of inter-State trade or
commerce, of rice bran oil be at the reduced rate of one paise in
the rupee.
This notification shall be deemed to have come into force with
effect from 01.04.1997 and shall be in force upto 31st March,
1999 only.
7. (c) It is necessary to now advert to the cited decisions. In the
decision in Collector of C. Ex. v. Jayant Oil Mills Pvt. Ltd., (1st cited)
the facts are as follows: - The respondent therein manufactured
hydrogenated rice bran oil which was sold to industrial consumers. The
said hydrogenated rice bran oil is used as raw material in the
manufacture of soap. The respondent had classified the same under
Tariff Item 12 for approval and claimed exemption under a Notification.
However the Assistant Collector, Central Excise held that the
hydrogenated rice bran oil was classifiable under Tariff Item 68 of the
Central Excise Tariff because hydrogenated rice bran oil is solid at the
ordinary temperature and therefore, should be considered as fat and not
as oil. When the said order was challenged, the Appellate Collector had
taken a view that even after the super hardening or hydrogenation, the
vegetable oil did not cease to be oil even when it became solid.
However, considering that the order of the Appellate Collector was not
proper, legal and correct, the Central Government, Ministry of Finance,
Department of Revenue had issued a show cause notice requiring to show
as to why the order of the Appellate Collector should not be set aside
and that of the Assistant Collector be restored. The matter came up
before CEGAT. The CEGAT in its impugned order noted that the appeal
was concluded by the judgment of the five member Bench of the
Tribunal in the case of M/s.Tata Oil Mills Co. Ltd.,[1986 (24) ELT 290] and
held that the order dated 30.11.1981 of the Appellate Collector was
correct and dismissed the appeal of the appellant. Therefore, the
appellant i.e., the Collector of Central Excise under Section 35L of the
Central Excises and Salt Act, 1944 had preferred an appeal from the
orders of the Customs, Excise and Gold (Control) Appellate Tribunal. In
the above stated factual background, the Supreme Court held as follows:
We are of the opinion that the Tribunal particularly emphasized
that the hardened technical oil is the same thing as the oil from
which it is made. It is clearly akin to the oil in homologue, a
product of scientific modification but unaltered in its essential
character. Therefore, in our opinion, the Tribunal was right in the
conclusion it arrived at.
The ratio in the decision is to the following effect.
Edible rice bran oil falling under Tariff Item 12 CET would even
after extra hardening or the process of hydrogenation will not fall
under Tariff item 68 but will continue to fall under Item 12 for two
reasons firstly the essential properties of the rice bran oil are not
changed even after process of hydrogenation/hardening as there is
hardly any distinction between vegetable oil in liquid form and
hydrogenated oil which is hardened with a melting point higher
than 41 degree centigrade, and secondly restore to the residuary
entry 68 cannot be made when there is a specific entry in Tariff
Item 12 for the goods in question. The subject goods admittedly
produced for industrial purposes and not for human consumption.
Hence, the ratio in the said decision is not applicable to the facts of the
present case.
In Tungabhadra Industries Ltd., (2nd cited) the question was as to
whether hydrogenated oil was not groundnut oil. One of the questions
also considered was whether if beyond the process of refinement of the
oil, the oil is hardened, again by the use of chemical processes it is
rendered any the less groundnut oil. The Supreme Court held as
follows:
No-doubt several oils are normally viscous fluids, but they do
harden and assume semi-solid condition on the lowering of the
temperature. Though groundnut oil is, at normal temperature, a
viscous liquid, it assumes a semi-solid condition if kept for a long
enough time in a refrigerator. It is therefore not correct to say
that a liquid state is an essential characteristic of a vegetable oil
and that if the oil is not liquid, it ceases to be oil. Mowrah oil and
Dhup oil are instances where vegetable oils assume a semi-solid
state even at normal temperatures. Neither these, nor coconut oil
which hardens naturally on even a slight fall in temperature, could
be denied the name of oils because of their not being liquid. Other
fats like ghee are instances where the physical state does not
determine the identity of the commodity.
Therefore, it is clear from the facts of the reported case that both
the commodities namely hydrogenated oil and the groundnut oil serve
the same purpose as cooking medium and are having identical food value
and therefore, it was held hydrogenated oil still continues to be
groundnut oil notwithstanding the processing. Hence, this decision is not
helpful to the appellant.
In The State of A.P. v. M/s.Coromandel Agro products and oils
Ltd.,( 3 cited) the question that arose for consideration was whether
Sledge Oil and Cotton seed acid oil are vegetable oils falling under entry
128 of the First schedule to attract lower rate of tax u/s.8(2-A) of the
C.S.T.Act.? The Tribunal held that the said oils are liable to tax under
entry 128 at reduced rate. The department contended that such oils are
general goods and are liable to tax at higher rates under the CST Act.
This Court while dealing with entry 128 held that the said entry relates
to vegetable oils and that the various oils mentioned therein are only
illustrative and that the entry specifically says vegetable oils including
those mentioned therein and that in the circumstances there is no
warrant for placing the construction that the said entry relates only to
those vegetable oils which are edible. Further, having regard to the
wide language used, it was held that it is not possible to restrict it only
to edible vegetable oils. This Court had also noted that groundnut oil
which is also edible oil is shown as a separate entry no.24 and therefore,
negatived the contention that entry 128 relates to edible oils.
In State of Andhra Pradesh v. Modern Proteins Ltd (4th cited)
the question that fell for consideration was whether groundnut protein
flour is a deoiled cake within entry 29 of Schedule I of the Act? The
Supreme Court considered the facts like process of manufacture and the
resultant produce and held as follows:
It is true that the analyst report in this appeal does indicate that both
deoiled cake and groundnut protein flour contain common properties
but the use and purpose being different and distinct, they cannot be
considered to be the same commodity. The groundnut protein flour is
an edible protein food for human consumption and is a different
commercially marketable entity and thereby is distinct from deoiled
cake for animal feed though obtained in the course of same process at
different stages. Both emerge into different and distinct commodities
commercially known in common parlance for distinct and different
use. Thereby groundnut protein flour did not remain part of the
genus, i.e., deoiled cake, but became a new and different entity
known in the commercial parlance. Accordingly, it is exigible to CST at
the relevant time at 4 per cent. The appeals, therefore, are allowed.
In the latest decision in Aluva Sugar Agency v. State of Kerala
the short question which arose for consideration was Whether sale of
margarine is to be taxed at 8% or 4% under the provisions of Kerala
General Sales Tax Act, 1963? Under the said question the main issue
that was considered was whether margarine can be treated as edible
oil and thus falls under entry 17A of the said Act. The Supreme Court
held as follows:
Margarine is a generic term and it is used as a substitute for butter. It
is used in preparation of food articles and specially used for preparing
bakery products. For the purpose of manufacturing margarine, refined
and/or hydrogenated oils of sun-flower, soyabean, cotton seed,
palmoline, palm and sesame oils are used. Moreover, vegetable oils,
salt, permitted emulsifiers and stabilizers are also used for
manufacturing margarine. So far as the margarine manufactured by
the appellant is concerned, it is made only from vegetable oils as
stated by the appellant and as borne out from the record. The
margarine manufactured by the appellant is exclusively used as raw-
material by bakeries and those who manufacture confectionaries.
Looking to the contents of margarine, it is clear that it contains all
edible things. Margarine is used exclusively as a raw material for
preparing bakery products and is also used in confectionary industry.
Like butter, margarine also contains almost 80% fat and remaining
constituents of margarine are edible things which are added thereto by
the manufactures of margarine. Vegetable and hydrogenated oils are
used in manufacturing margarine and as it is used for making eatables,
margarine is also edible though it is not used for normal cooking as
other oils like coconut, sunflower, soyabean, sesame oils are used but
it cannot be disputed that it is an edible oil.
The Supreme Court further held as follows:
In the aforestated circumstances, one has to consider whether
margarine can be considered as an edible oil. We clearly understand
that edible oil is that oil which can be used for human consumption. It
is not necessary that all edible things should be consumed in the form
in which they are available. There are number of ingredients used in
cooking for preparation of food articles which we do not consume in
the same form but they are used in preparation of food articles which
are consumed.
So as to simplify the conclusion, we may say that normally anything
which is used for preparation of a food article is edible because
ultimately it is being consumed by human beings. Though one may not
consume margarine directly or may not use for normal cooking, the
fact is that margarine is used for preparing bakery items which are
consumed by human beings and, therefore, margarine is also edible.
Having around 80% fat, and being in the nature of oil, in our opinion, it
should be considered as edible oil.
7. (d) We have gone through the cited decisions carefully. From a
careful reading of the decisions and a conspectus of the legal position, it
emerges that the following tests have to be applied in a case of this
nature. Firstly, it is to be examined as to whether the commodities RB
Fatty Acid and RB Acid Oil which emerged in the unit of the dealer,
which is manufacturing Rice Bran Oil, are different commodities and
entities known differently in commercial parlance and whether such
emerged commodities are distinct from Rice Bran Oil. Secondly, whether
such distinct and different commodities are capable of being put to the
same use? Thirdly, whether such distinct and different commodities
differ not only in character and economic perspective but also in
common and commercial parlance understanding? On the application of
the tests and on consideration of the facts and circumstances of the
case, we are of the considered view that RB Fatty Acid and RB Acid Oil
are distinct and different from Rice Bran Oil. Admittedly Rice Bran Oil is
an edible oil whereas the other two commodities viz., RB Fatty Acid and
RB Acid Oil are useful for manufacturing of soaps and are not edible.
How an article or commodity is understood in the trade i.e., by the
dealer or customer is also one of the important considerations.
Functional utility and predominant usage have also to be taken into
account while determining the class of commodity. The law is well
settled that in the law dealing with sales tax, the taxable event is the
sale and not the manufacture of goods. Nevertheless, if the question is
whether a new commercial commodity has come into existence or not, it
is necessary to examine whether the goods ceased to be the goods of one
taxable description and had become commercially different commodity
of different category and description during the course of manufacture.
When un-refined raw rice bran oil is subjected to a process of refining,
two distinct and different commodities namely RB Fatty Acid and RB Acid
Oil had also emerged. Therefore, the manufacturing process had altered
the identity of one commercial commodity and new commercial
commodities had emerged. The law of sales tax is also concerned with
goods of various descriptions. It cannot be disputed that the two
commodities namely RB Fatty Acid and RB Acid Oil, which are of
commercially different category and description, had emerged during the
process of manufacture of Rice Bran Oil. The principle which is fairly
well settled is that the words or expressions under the statute must be
construed in the sense in which they are understood in the trade, by the
dealer and the consumer because it is they who are concerned with it
and it is the sense in which they understand it that constitutes the
definitive index of the legislative intention when the Statute was
enacted. Therefore, the test is how the product is identified by the class
or section of people dealing with or using the product. That is the test
which is attracted whenever the Statute does not contain any definition.
It is generally, by its functional character that a product is so identified.
Therefore, coming to the commodities in the case on hand, Rice Bran Oil
which is fit for human consumption can only be a different and distinct
commodity from the other two commodities viz., RB Fatty Acid and RB
Acid Oil as the former is fit for human consumption while the latter two
commodities are only used in the process of manufacture of soaps/cattle
feed. It is pertinent to note that RB fatty acid and RB acid oil and Rice
Bran oil are considered as distinct and different commodities for the
purpose of levy and collection of excise duty.
7. (e) Therefore, we do not find any merit in the contention of the
learned counsel for the appellant/dealer that RB Acid Oil and RB Fatty
Acid could not be considered as distinct and different from Rice Bran Oil.
As a sequel we find that the order of the respondent, which is impugned,
is in accordance with the law and does not brook interference. The point
is accordingly answered against the appellant/dealer.
8. In the result, the Special Appeal is dismissed. There shall be no
order as to costs.
Miscellaneous petitions pending, if any, in this appeal shall stand
closed.
_______________
K.C. BHANU, J
________________________
M. SEETHARAMA MURTI, J
12.03.2015
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