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Judgment
J.B. Kosh, J.—During the assessment year 1989-90 the assessee who is the respondent in this revision application purchased among other goods resin from one newly set up small-scale undertaking entitled to exemption from payment of sales tax under Notification S.R.O. No. 968/80, dated September 29, 1980, issued u/s 10 of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as "the Act"). The assessing authority as well as the first appellate authority took the stand that the assessee is liable to pay purchase tax on the turnover u/s 5A of the Act as no tax was paid u/s 5 of the Act even though resin is a taxable commodity. However, the Sales Tax Appellate Tribunal took the view that Section 5A of the Act is not attracted as the dealer purchased resin from a small-scale undertaking eligible for exemption on the strength of the notification issued u/s 10 of the Act. According to the Tribunal, as resin is exempted from tax on the first sale point in the hands of the supplier it qualified for exemption from tax both u/s 5 and Section 5A of the Act and hence no purchase tax is payable on the purchase value of the goods purchased from a newly set up small-scale industrial undertaking qualified for exemption even though there is no exemption for the purchaser. This order of the Tribunal dated September 22, 1993 is questioned in this revision application filed by the Revenue.
The question to be decided is whether purchase tax u/s 5A can be levied from a person who purchased taxable goods from a dealer who is a newly set up small-scale industrial unit eligible for exemption on the strength of the notification issued u/s 10 of the Act.
To answer the above question we may quote Section 5A(1) of the Act which is as follows :
"5A. Levy of purchase tax.--(1) Every dealer who, in the course of his business, purchases from a registered dealer or from any other person any. goods, the sale or purchase of which is liable to tax under this Act, in circumstances in which no tax is payable u/s 5, and either--
(a) consumes such goods in the manufacture of other goods for sale or otherwise ; or
(b) disposes of such goods in any manner other than by way of sale in the State ; or
(c) despatches them to any place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce, shall, whatever be the quantum of the turnover relating to such purchase for a year, pay tax on the taxable turnover relating to such purchase for the year at the rates mentioned in Section 5."
The Notification S.R.O. No. 968/80 dated September 29, 1980, issued u/s 10 of the Act is also quoted below :
"In exercise of the powers conferred by Section 10 of the Kerala General Sales Tax Act, 1963, the Government of Kerala, hereby make an exemption in respect of the tax payable under the said Act on the turnover of the sale of goods produced and sold by the new industrial units under the small-scale industries for a period of five years from the date of commencement of sale of such goods by the said units subject to the conditions that the tax if any collected by such units by way of tax on their sales shall be paid over to Government and that sales tax, if any, already paid by such units to Government shall not be refunded :
Provided that such units shall produce proceedings of the General Manager, District Industries Centre declaring the eligibility of the units for claiming exemption from sales tax ;
Provided further that the cumulative sales tax concession granted to a unit at any point of time within this period shall not exceed 90 per cent of the cumulative gross fixed capital investment of the unit.
Explanation.--(1) For the purpose of this notification ''new industrial units under the small-scale industries'' shall mean undertakings set up on or after 1st April, 1979, and registered with the Department of Industries and Commerce as a small-scale industrial unit (but shall not include old industrial units under the small-scale industries closed down and reopened under a new banner and style of business, after 1st April, 1979).
Explanation.--(2) In computing the fixed capital investments, second hand machinery and equipments procured from within the State of Kerala shall not be considered for sales tax concession.
This notification shall be deemed to have come into force with effect from 1st April, 1979."
It is the contention of the assessee-respondent that the object of the notification S.R.O. No. 968/80 is to grant financial incentive to small-scale industrial units and if the purchaser from the SSI unit is asked to pay tax u/s 5A on the purchase made from the SSI unit, it will work as a disincentive to the purchaser from the SSI unit. Therefore, there is no justification to impose purchase tax u/s 5A of the Act on the turnover of goods purchased from an exempted unit. It is contended by the Revenue that purchase tax will be levied only if the purchased goods are used for contingencies mentioned in Clauses (a), (b) and (c) of Section 5A and in all other cases no purchase tax is leviable so that benefit of exemption is available to the small-scale undertaking in all transactions. In any event, we are only concerned with the question whether on the plain wording of the Act tax can be levied u/s 5A from the hands of the assessee. If the wordings are clear there is no necessity for going into the supposed objectives or alleged intentions of the Legislature. The intention of the Legislature has to be gathered from the expressed wordings in the enactment.
It is contended by the assessee that if the goods are exempted from payment of tax u/s 5 at the hands of the seller no tax is leviable u/s 5A of the Act also. In support of the above contention the assessee relied on a Division Bench decision of this Court in T.S. Govindarajulu Naidu Vs. State of Kerala, In the above case by Notification S.R.O. No. 658/72 issued u/s 10 of the Kerala General Sales Tax Act, 1963, the Government granted total exemption "in respect of the tax payable under the said Act by any dealer on the sale of polished synthetic gems". The assessee, a dealer in synthetic gems, purchased the gems locally and sold them in places outside the State. It was held by the court that as far as synthetic gems were concerned the exemption was total and, therefore, no tax is payable u/s 5 or 5A of the Act. This decision by a Division Bench of this Court was upheld by the Supreme Court in State of Kerala v. T.S. Govindarajulu Naidu [1993] 90 STC 35(Ker). A similar view was taken by the Andhra Pradesh High Court in State of Andhra Pradesh v. Venkateswara Bar & Restaurant [1997] 104 STC 360(SC). There under a notification issued under the Andhra Pradesh General Sales Tax Act, Government exempted "tax payable under Act on sales of dressed chicken". It was held by the Andhra Pradesh High Court that since dressed chicken is totally exempted from payment of tax under the Act, purchase tax cannot be levied u/s 6 of that Act. G.O. Ms. No. 60 issued by the Government of Andhra Pradesh, dated January 20, 1989 was as follows :
"In exercise of the powers conferred by Sub-section (1) of Section 9 of the Andhra Pradesh General Sales Tax Act, 1957 (Andhra Pradesh Act No. VI of 1957), the Governor of Andhra Pradesh hereby exempts from the tax payable under the said Act the sales of dressed chicken other than canned, preserved or dehydrated."
After analysing the above notification, the Andhra Pradesh High Court held as follows :
"A plain reading of the G.O., extracted above, makes it clear that the Governor of Andhra Pradesh has exempted tax payable under the Act on the sales of dressed chicken other than canned, preserved or dehydrated. It is nobody''s case that the chicken in question is canned, preserved or dehydrated. It is a dressed chicken. No doubt the words used are, the Governor of Andhra Pradesh hereby exempts from the tax payable under the said Act ''the sales of dressed chicken'', tax leviable u/s 6-A of the Act is also tax under the Act. What is sale by the vendor of the respondent-dealers is purchase in the hands of the said dealers. Therefore, under G.O. Ms. No. 60, if the transaction of the sale by the vendor in favour of the dealers is exempted, the same transaction cannot be taxed as being purchase by the dealers-assessees."
In both these cases the commodity itself was fully exempted from payment of tax under the respective Acts. In such circumstances, court held that no purchase tax can be payable as exemption granted to the commodity is total. In this case the commodity is not totally exempted. Only the sales turnover on the hands of a newly set up industrial undertaking is exempted.
In the decision reported in T.S. Govindarajulu Naidu Vs. State of Kerala, this Court referred to the decision of the Supreme Court in The State of Tamil Nadu Vs. M.K. Kandaswami and Others, The Supreme Court considered the difference between "taxable person", "taxable event" and "taxable goods". In the above case the Supreme Court was considering forty appeals wherein goods like arecanuts, gingelly seeds, turmeric, grams, castor seeds and butter are taxable goods, but they were not liable to tax in the hands of the sellers as they were agriculturists. The purchases have been made by the dealers of goods, the sale or purchase of which is generally liable to tax under the Act, but because of the circumstances aforesaid no tax was suffered in respect of the sale of these goods by the sellers. After considering the facts of the case the Supreme Court held that levy of purchase tax is justified even though these taxable goods were exempted on the hands of the first sellers on the fact that they are either agriculturists or unregistered dealers. The Supreme Court quoted the following passages of the earlier judgment of Subramonian Poti, J., of this Court in Malabar Fruit Products Company, Bharananganam, Kottayam v. Sales Tax Officer, Palai [1972] 30 STC 537(SC) which is as follows :
"Though normally a sale by a registered dealer or by a dealer attracts tax, there may be circumstances under which the seller may not be liable as, for example, when his turnover is below the specified minimum. In such cases the ''goods'' are liable to be taxed, but the sales take place in circumstances in which no tax is payable at the point at which tax is levied under the Act. If the goods are not available in the State for subsequent taxation by reason of one or other of the circumstances mentioned in Clauses (a), (b) and (c) of Section 5A(1) of the Act, then the purchaser is sought to be made liable u/s 5A.........
Another instance I can conceive of is a case of a dealer selling agricultural or horticultural produce grown by him or grown on any land in which he has interest, whether as owner, usufructuary mortgagee, tenant or otherwise. From the definition of ''turnover'' in Section 2(xxvii) of the Act it is evident that the proceeds of such sale would be excluded from the turnover of a person who sells goods produced by him by manufacture, agriculture, horticulture or otherwise, though merely by such sales he satisfies the definition of a ''dealer'' in the Act. Thus, such a person selling such produce is treated as a dealer within the meaning of the Act and the sales are of goods which are taxable under the Act but when he sells these goods, it is not part of his turnover. Therefore, it is a case of a dealer selling goods liable to tax under the Act in circumstances in which no tax is payable under the Act, In such a case, the purchaser is sought to be taxed u/s 5A provided the conditions are satisfied. The case of growers selling goods to persons to whom Section 5A thus applies is covered by this example."
After approving the above observations the Supreme Court held as follows :
"In our opinion, the Kerala High Court has correctly construed Section 5A of the Kerala Act which is in pari materia with the impugned Section 7-A of the Madras Act. ''Goods, the sale or purchase of which is liable to tax under this Act'' in Section 7-A(1) means ''taxable goods'', that is, the kind of goods, the sale of which by a particular person or dealer may not be taxable in the hands of the seller but the purchase of the same by a dealer in the course of his business may subsequently become taxable."
According to us, ratio of this decision is squarely applicable to the facts of this case also. Resin is a taxable items. It is not totally exempted under the Act. But, because of the circumstance that the seller was a newly set up small-scale industrial unit qualifying for exemption under the notification, it was exempted on his hands. But purchase of the same by a dealer in the course of business is taxable, if Clauses (a), (b) and (c) of Section 5A are satisfied.
In Deputy Commissioner of Sales Tax (Law) v. International Fisheries Ltd. [1981] 48 STC 409(SC) a Division Bench of this Court considered the question whether purchase of water from Cochin Corporation is liable to be taxed u/s 5A of the Act. Water was not totally exempted under the Sales Tax Act but, water sold by a local authority was exempted. The court held that even though water was exempted on the hands of the local authority, Cochin Corporation, water is not totally exempted and, therefore, tax u/s 5A is leviable. After considering the decision in T.S. Govindarajulu Naidu Vs. State of Kerala, the court held as follows :
"The goods concerned in that case was synthetic gems exempted at all points of sale in the State. The case before us is not one of an exemption at all points. In fact it is not an exemption at any point of sale or purchase. It is an exemption of sale by a class of persons, an exemption which falls within Section 10(1)(ii) of the Kerala General Sales Tax Act. By reason of that exemption it cannot be said that water is not liable to be taxed under the Act. ''Water is taxable and continues to be taxable notwithstanding the exemption. That is because water sold by anyone other than those who fall within the exempted class would be liable to be taxed under the Act''."
In Consolidated Coffee Limited and Another Vs. Coffee Board and Another, it was held that growers selling coffee to Coffee Board are not liable to pay tax on their sales, but the Coffee Board being the purchaser has to pay tax. In Jagatjit Sugar Mills v. State of Punjab [1995] 96 STC 344 (SC) the court was considering whether purchase tax is payable on agricultural produce, viz., sugarcane, sold by the grower and is exempted from payment of tax. The Supreme Court held that petitioner-company which purchased sugarcane from the growers who are exempted from tax, for the purpose of manufacturing sugar in its mills, was liable to pay purchase tax on the sugarcane, though the cane growers were exempt from sales tax on the sale thereof. Same view was taken in State of Karnataka Vs. B.M. Ashraf and Co.,
In Deputy Commissioner of Sales Tax (Law) Vs. The Indian Oil Corporation Ltd., the court was considering the question whether the purchase turnover on petroleum products purchased by the assessee, Indian Oil Corporation, from the Cochin Refineries is exempted from tax u/s 5A of the Act. At that time, sale of petroleum products by an oil company to another oil company was exempted from payment of tax. It was held that notwithstanding the exemption purchase tax is payable u/s 5A by the Indian Oil Corporation if the petroleum products are used in contingencies mentioned in Clauses (a), (b) and (c) of Section 5A of the Act. The court held as follows :
"Applying the same principle a Division Bench of this Court in Deputy Commissioner of Sales Tax v. International Fisheries Ltd. [1981] 48 STC 409(SC) held that even though the turnover in respect of water sold by a municipal corporation is not liable to tax u/s 5 by virtue of a notification issued by the Government u/s 10(1) of the Act, the purchase turnover is liable to tax in the hands of the assessee u/s 5A of the Act. An earlier decision of a Division Bench of this Court in T.S. Govindarajulu Naidu Vs. State of Kerala, was distinguished as relating to a total exemption of synthetic gems dealt with therein as per notification issued by the Government u/s 10 of the Act. The purchase turnover of water is held exigible to tax u/s 5A for the reason stated at page 411 :
''Water is taxable and continues to be taxable notwithstanding the exemption. That is because water sold by any one other than those who fall within the exempted class would be liable to be taxed under the Act.''
We have already found that the exemption or the exclusion contained in the entry in Schedule I related only to the point of taxation u/s 5 when the sale is by one oil company to another. It does not relate either to the point of taxation u/s 5A or the exigibility of the purchase turnover to tax in the hands of the purchasing dealer. We, therefore, hold that the purchase turnover of petroleum products is taxable at the hands of the assessee if any of the conditions in Clauses (a), (b) or (c) of Section 5A(1) is satisfied."
Learned counsel for the assessee submitted that the decision of the Supreme Court in Pournami Oil Mills v. State of Kerala [1987] 65 STC 1(Ker) supports its contention. In that case the Supreme Court was considering the effect of exemption given to the newly set up small-scale industries. An order was passed by the Government on April 11, 1979, exempting new industrial units under small-scale industries set up after April 1, 1979 from payment of tax. Thereafter Notification S.R.O. No. 968/80 dated September 29, 1980 (notification considered in this case) was issued u/s 10 of the Act.
It was contended by the Revenue that notification u/s 10 of the Act was issued only in 1980 and, therefore, the earlier order is not applicable. But the Supreme Court held that even though section is not mentioned the first order can be deemed to be issued u/s 10. The court also found that the earlier notification was very exhaustive and granted full exemption. But the second notification withdrew the exemption relating to purchase tax and, therefore, the new industries set up after October 21, 1980 could not be entitled to that benefit. The benefit of S.R.O. No. 968/80 is applicable only for newly set up industries for a period of five years. We are concerned with the assessment year 1989-90. There the industrial unit which availed exemption and sold material to the assessee is set up after 1980. In such cases, it is clearly held that purchase tax is payable. The Supreme Court held as follows :
"It is not disputed that the first order, namely, the one dated April 11, 1979, gave more of tax exemption than the second one. The second notification withdrew the exemption relating to purchase tax and confined the exemption from sales tax to the limit specified in the proviso of the notification. All parties before us who in response to the order of April 11, 1979, set up their industries prior to October 21, 1980, within the State of Kerala would thus be entitled to the exemption extended and/or promised under that order. Such exemption would continue for the full period of five years from the date they started production. New industries set up after October 21, 1980, obviously would not be entitled to that benefit as they had notice of the curtailment in the exemption before they came to set up their industries."
The above decision will not support the case of the assessee. As already held by us, resin is not fully exempt from taxation under the Act. It is a taxable commodity. Because of the circumstances being a newly set up small-scale undertaking the first seller was not liable to pay tax. But the purchaser who is not entitled to the benefit of the above exemption notification is liable to pay purchase tax u/s 5A as admittedly, he was using the same for the purpose mentioned in Clause (a) of Section 5A(1) of the Act.
Therefore, we revise the order of the Sales Tax Appellate Tribunal and hold that resin which is a taxable item purchased by the assessee for which sales tax was not payable u/s 5 at the hands of the supplier for the special circumstance that supplier being a newly set up small-scale industrial unit, is liable to purchase tax u/s 5A of the Act at the hands of the assessee who is not having such an exemption.