Associated Cement Co. Ltd. vs State of Karnataka

R.V. Raveendran, J.—Petitioner is a manufacturer of Cement, as also a grouting material known by the Brand name ''Shrinkkomp''. It is a registered dealer under the Karnataka Sales Tax Act, 1957 (''Act'' for short). In regard to the assessment periods 1.4.1989 to 31.3.1990 and 1.4.1990 to 31.3.1991, the Assessing Authority passed orders of assessment dated 25.2.1994 and 29.4.1994 respectively.

The petitioner had several grievances in regard to the orders of assessment, two of which are relevant in these revision petitions: (i) taxing of ''Shrinkkomp'' as ''Cement'' at 13% as falling under Entry 7 of Part ''C'' of Second Schedule to the Act; and (ii) subjecting the turnover relating to charges for packing material specified and charged by the assessee separately (without including it in the price of goods) to turnover tax under. Section 6B of the Act. The petitioner therefore filed appeal Nos. KST AP.NOS. 74/94-95 & 91/94-95 before the First Appellate Authority in regard to its grievances. The Appellate Authority confirmed the findings of the Assessing Authority in regard to those two aspects, but granted some relief in regard to some other grievances by a common order dated 14.7.1995. The second appeals filed by the assessee before the Karnataka Appellate Tribunal, Bangalore in STA Nos. 809 & 810/1995 have been dismissed by the Tribunal by order dated 29.2.1996. Feeling aggrieved, petitioner has filed these petitions u/s 23(1) of the Act.

Two substantial questions of law that arise for consideration in these petitions are:

(i) Whether ''Shrinkkomp'', a grouting material, manufactured and sold by the assessee is a ''Cement'' subject to a single point tax falling under Entry 7 of Part ''C'' of Second Schedule to the Act as contended by the Department or a general goods not falling under any schedule, subject to multipoint tax u/s 5(1) of the Act as contended of the Assessee?

(ii) Whether the cost of packing material, specified and charged by the assessee separately in its sales invoices is includible in the total turnover to be subjected to tax u/s 6B of the Act?

Re: Point No. (i):

The assessee pointed out the following differences between cement and Shrinkkomp to contend that Shrinkkomp is not a cement:-

CEMENT

SHRINKKOMP

(1) Raw materials used are Calcium carbonate (Limestone) Bauxite, Iron Ore and Silica;

(1) Raw materials used are Binder, Expansive Bond, Calcium Sulphate, Graded Aggregates (Sand).

(2) Raw materials are mixed and ground to the required fineness and passed through a kiln where the temperature is above 1450�C. The resultant product (clinker) is once again mixed with gypsum and ground to the required fineness.

(2) Raw materials are blended together in the required proportion.

(3) Cement is used for preparing mortar or concrete used as a standard building material.

(3) Shrinkkomp is not used as a regular building material. It is used only for grouting applications i.e., machine Base plates, anchor bolts and drill holes in rock and concrete structures, grouting for static and dynamic loads, etc.

(4) Ordinary Portland cement mortar shrinks, when mixed with water and laid.

(4) Shrinkkomp expands when mixed with water thereby Giving a positive grip.

(5) Iron ore is one of the ingredients of cement

(5) Shrinkkomp is a non metallic grout, free from any iron or oxidizing agents.

(6) Cement is comparably for cheaper than Shrinkkomp.

(6) Shrinkkomp is five times Costlier than Cement.

On the other hand, the Department contended that Shrinkkomp is nothing but a special quality cement. It is contended that while the form of bonding may be different, the purpose of both Portland cement and Shrinkkomp is the same. While Portland cement binds and shrinks, Shrinkkomp binds and expands. Shrinkkomp is also manufactured in cement factories and sold by dealers in cement. It is nothing but a cement used for special purposes as contrasted from Portland cement which is used for general purposes. It was also pointed out that in common parlance, the persons in the trade consider Shrinkkomp and other similar grouting material as a special cement. They submit that Shrinkkomp is nothing but a brand name given by the Assessee to expansion cement or grouting material. The Department contends that Entry 7 takes into its hold, all cements and is not restricted only to Portland cement.

The word ''cement'' in its general sense covers a wide variety of binding materials used for many different purposes, but more commonly it implies a finely ground powder which is a binding material used in building and civil engineering constructions, which when mixed with water, sets and hardens into a solid mass. Varieties of cements include Portland cement, slag cement, high aluminium cement, gypsum cement and expansion cement. Portland cement is made of calcium carbonate (found in lime stone), silica, alumina and iron oxide (found in clay). Slag products are used in slag cement. High concentration of aluminates are used in high aluminium cement. Gypsum is used in Gypsum cement. Special ingredients are used to produce cement with special properties - for example Expansion cement (for grouting Machine base plates, anchor bolts etc.), Oil well cement (designed to resist high temperatures and pressures), water proof cement etc. Cements may be used alone i.e., by itself as grouting material, but the normal use is in mortar (cement with sand) and concrete (cement mixed with sand and gravel) for construction purposes. The specific need determines the kind of cement used, as illustrated below:

(i) Portland cement is used for traditional construction of buildings and other structures.

(ii) Slag cement and high aluminium cement are used to resist attack by chemicals such as sulfates present in air pollution.

(iii) Gypsum cement is used in plaster and plaster board and floor surfacing material.

(iv) Expansion cement is used for grouting machine base plates, anchor bolts and drill holes etc.

Expanding and non-shrinking cements is contrasted from Portland cement which shrinks on hydration. Expanding and non-shrinking cements expand slightly on hydration, thus offsetting the small contraction that occurs when freshly made concrete dries for the first time. One standard method of producing expanding and non-shrinking cements is to mix Portland cement with an expansive agent made by clinkering a mix of chalk, bauxite and gypsum (vide The new Encyclopedia Britannica 15th Edition Volume 3 Page 19 and Volume 21, Page 293 to 297).

Assigning a specific brand name does not take away the basic nature of goods. A car does not cease to be a car by calling it ''Maruthi'' or ''Mercedes''. An expansion cement does not cease to be a cement by calling it ''SHRINKKOMP''. The special properties and uses highlighted by the Assessee do not differentiate Shrinkkomp from ''cement'', but distinguish Shrinkkomp with standard constructional cements, in particular, portland cement which has the property of shrinking as against Shrinkkomp which has the property of expansion. Use of Shrinkkomp may be restricted to certain special areas, as against Portland cement which is used for general construction. But nevertheless, both Portland cement and Shrinkkomp manufactured by the assessee are cements, that is binding materials. As a special variety of cement, Shrinkkomp will still fall under Entry 7 of Part ''C'' of Second Schedule to the Act. The said entry, it should be remembered relates to ''cement'' and not restricted to Portland cement or any other form of cement. We accordingly hold that Shrinkkomp which is an expanding cement used only for the purpose of grouting is a ''cement'' falling under Entry 7 of Part ''C'' of Second Schedule to the Act. First point is answered accordingly.

Re: Point No. (ii):-

Section 6B of the Act at the relevant point of time (assessment periods 1989-90 and 1990-91) read as follows:

"6B. Levy of Turnover Tax:- (1) Every dealer other than the Government of Karnataka, Central Government or the State Government of any other State whose total turnover in a year is not less than five lakh rupees whether or not the whole or any portion of such turnover is liable to tax under any other provisions of this Act, shall be liable to pay tax, ..........

(i) if it is a body Corporation, ..........

a. at the rate of one and a quarter percent of its total turnover, if its total turnover is not less than five lakh rupees but is less than two hundred and fifty lakh rupees in a year; or

b. at the rate of one and a half percent of its total turnover is not less than two hundred fifty lakh rupees in a year.

(ii) ...... ...... ......

Provided that no tax under this sub-section shall be payable on that part of such turnover which relates to....... (i) to (vi) ........

(vii) all amounts falling under the head ''charges for packing materials and cost of labour'' when specified and charged for by the dealer separately without including such amounts in the price of the goods sold.

(viii) to (xi) ...... ...... ......

Provided further that, save as otherwise provided in this subsection, no other deduction shall be made from the total turnover of a dealer for the purposes of this Section.

(2) The provisions of this act and the rules made there under shall, so far as may be apply in relation to the assessment, collection or refund of the turnover tax, as they apply in relation to the assessment, collection or refund of tax under the other provisions of this Court."

The Assessee had claimed exemption from levy of turnover tax, on that part of turnover relating to packing material and cost of labour which were separately specified and charged in its sale bills. The Assessing Authority on inspection of the sale bills, found that the assessee had separately specified and charged packing charges in the sales bills. He was however of the view that merely because value of packing charges was shown separately, assessee could not claim exemption. He held that value of packing material forms the integral part of sale price as it is a pre-sale expenditure and therefore it will have to be included for the purpose of turnover to be taxed u/s 6B of the Act. The Assessing Authority was of the view that exemption u/s 6(B)(vii) is available only for post sale expenditure incurred for packing and labour. The said view was reiterated by the Appellate Authority and by the Tribunal.

It is clear from a series of decisions of this Court that Section 6B is an independent charging section providing how the total turnover (for identifying the classes of traders) and taxable turnover (for purpose of levying turnover tax) should be determined. The principles contained in Section 5 of the Act relating to levy of sales tax and purchase tax, etc., will not apply for determining the turnover that has to be taxed u/s 6B of the Act. Similarly, the deductions provided in Rule 6 of KST Rules, 1957, cannot be applied in determining the total turnover for the purpose of Section 6B (vide decision of the Supreme Court in S. Kodar Vs. State of Kerala, decisions of Division Benches of this Court in S.N. GUGGARI & CO v. COMMISSIONER OF COMMERCIAL TAXES 1997 (110) STC 426 SC, B.V. ASHWATHAIAH v. STATE OF KARNATAKA 1999 (113) STC 60 kar, decisions of the learned Single Judges of this Court in Universal Transformers Vs. The Asst. Commissioner of Commercial Taxes and Others, and V. Radhakrishnaih Setty and Sons Vs. Commissioner of Commercial Taxes and another, .

In view of the above, to find out whether a particular portion of the total turnover has to be deducted as not liable to turnover tax u/s 6B of the Act, what should be looked into are only the provisions of proviso to Sub-section (1) of Section 6B and not the provisions of Section 5 or Section 6. Clause (vii) of the proviso to Section 6B(1) of the Act makes it clear that any amount falling under the head ''charges for packing material and cost of labour'' when specified and charged by the dealer separately without including the same in the price of the goods sold, has to be deducted from the total turnover for the purpose of determining the turnover tax.

Learned Government Advocate contended that while interpreting Section 6B of the Act, Section 5(3-D) of the Act should also be taken note of. Section 5(3-D) of the Act reads as follows:

"Notwithstanding anything contained in this Act, where goods sold or purchased are contained in containers or in any packing materials liable to tax under this Act, the rate of tax and the point of levy applicable to turnover of such containers or packing materials, as the case may be, shall, whether the containers or the packing materials have already been subjected to tax under this Act or not or whether the price of the containers or of the packing materials is charged for separately or not, be the same as those applicable to goods contained or packed.

Provided that no tax under this sub-section shall be leviable if the sale or purchase of goods contained in such containers or packed in such packing materials is exempt from tax under this Act."

Learned Government Advocate submitted that as the section starts with a non obstante clause, even, for the purpose of interpreting Section 6B also, cost of container or packing material should be treated as part of the cost of the goods sold, as provided in Section 5(3-D). The said contention cannot be accepted. The words "notwithstanding anything contained in this Act" applies only for the purpose of subjecting containers/packing materials to tax u/s 5(3-D) and by no stretch of imagination, the provisions of Section 5(3-D) can be imported into Section 6B of the Act. Clause (vii) of the proviso to Sub-section (1) of Section 6B clearly expresses an intention contrary to Section 5(3-D) and Section 5(3D) is inapplicable.

Learned Government Advocate next relied on several decisions of the Supreme Court which deal with the question as to whether the goods sold in containers or are packed in packing material are liable to tax u/s 5(3-D) of the Act or corresponding provisions in other Sales Tax Enactments. decisions referred to are RAJ SHEEL v. STATE OF ANDHRA PRADESH 1989 (74) STC 379 AP, VASAVADATTA CEMENTS v. STATE OF KARNATAKA 1996 (101) STC 168 kar and PREMIER BREWERIES v. STATE OF KERALA 1998 (108) STC 598 ker. The said decisions are not of any assistance as they do not deal with Section 6B of the provisions any Section similar to Section 6B in other Sales Tax enactments relating to turnover tax.

We therefore hold that amounts falling under the head ''charges for packing material'' when specified and charged separately, without including such amounts in the price of goods sold, are not liable to turnover tax.

Petitions are accordingly allowed in part. The decision of the Tribunal is confirmed in so far as subjecting Shrinkkomp to tax under Entry 7 of Part ''C'' of Second Schedule to the Act. The decision of the Assessing Authority, Appellate Authority and the Tribunal, in so far as they hold that cost of packing material, specified and charged separately in the sale bill are also liable to turnover tax u/s 6B of the Act, are set aside. The Assessing Authority is directed to re-do the assessments for the years 1989-90 and 1990-91 accordingly.