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Judgment
Ramesh Ranganathan, J.—As common questions arise for consideration in these writ petitions, they were heard together and are now being disposed of by this common order. While the proceedings originally under challenge, in W.P. Nos. 12684, 12696, 12702 and 12725 of 2009, were orders rejecting stay pending disposal of the appeals before the Appellate Deputy Commissioner, in the other writ petitions the challenge is to the validity of the assessment, orders levying tax on sale of empty bottles. Sri N. Venkataraman, Learned Senior Counsel appearing for the petitioners in W.P. Nos. 12684, 12696, 12702 and 12725 of 2009, would submit that the petitioners therein have already withdrawn the appeals filed before the Appellate Deputy Commissioner and have sought amendment of the prayer, in the aforesaid four writ petitions, to include a challenge to the assessment order. As the validity of the assessment orders are under challenge in the other writ petitions in this batch, the amendment petitions are, accordingly, ordered.
Learned Counsel appearing for either side would agree that the facts in W.P. No. 6022 of 2009 are illustrative of the facts in all these writ petitions. The petitioner, a registered dealer on the rolls of the Commercial Tax Officer, Saroornagar, claims that its business relates exclusively to the purchase of empty used beer and liquor bottles from hawkers and other unregistered dealers and, after cleaning, its sale to breweries and distilleries. These beer and liquor bottles are stated to have been sold, thereafter, to manufacturers who, in turn, are said to have filled them up with beer/liquor for sale to the A.P. Beverages Corporation Ltd/Canteen Stores department. The petitioner would contend that these used empty bottles cannot, in the normal course of business, be used by anyone other than breweries and distilleries. The 2nd respondent issued a notice proposing to levy tax, for the period April, 2008 to December, 2008, on such sale of used beer and liquor bottles and, thereafter, passed orders of assessment determining the turnover, relating to the sale of empty used bottles, as liable to tax u/s 4(3) read with Item 90 of the IV Schedule to the A.P. VAT Act (hereinafter referred to the Act).
Sri N. Venkataraman and Sri S. Ravi, Learned Senior Counsel and Sri S. Chakrapani, Learned Counsel appearing on behalf of the petitioners, would submit that empty beer and liquor bottles are "goods" and, under Sections 2(3) of the A.P. Excise Act, liquor can be sold only when packed in bottles. While fairly stating that bottles were packing material, and would otherwise fall within the ambit of item 90 of Schedule IV, they would submit that the destiny of these bottles was inter-twined with its contents i.e., liquor, there was an inseparable bond between them, that Section 4(5) read with Item I of Schedule VI of the Act required liquor, bottled and packed as per the provisions of the A.P. Excise Act, to be taxed at 70% at the point of first sale in the State, that, in view of Section 6, the rate of tax applicable to empty bottles was the same as the rate of tax on liquor, that bottles, containing liquor, were also liable to be taxed at 70% and not at 4% as prescribed in Section 4(3) read with Item 90 of Schedule IV, that these bottles, of sizes and shapes specified in Explanation III to Schedule VI, were peculiar only to the liquor industry, that sale of liquor to the A.P. Beverages Corporation Limited/Canteen Stores department is deemed, under Explanation I to Schedule VI, to be the first sale in the State and that sale of liquor, thereafter, is not liable to tax within the State of A.P as levy of tax on the goods specified in Schedule VI is at the point of first sale in the State. They would further submit that A.P. Beverages Corporation had already paid tax both on the liquor bottles and its contents i.e., liquor, that the petitioners had purchased empty liquor/beer bottles, from hawkers and unregistered dealers, after the beer/liquor contained therein was consumed, that, as liquor and beer bottles had already suffered tax at 70% at the point of first sale in the State, sale of empty bottles, thereafter, to breweries and distilleries constituted second and subsequent sales which, in view of Explanation II to Section 2(38), was required to be excluded from the taxable turnover of the petitioner-dealers, that such sale of empty bottles was not liable to tax u/s 4(3) read with Item 90 of the IV Schedule to the Act, that, by necessary implication, packing material, as referred to in Item 90 of Schedule IV, did not include packing material already taxed under Schedule VI and that the words "relating to", in Explanation II to Section 2(38), meant the sale price of both the contents and the containers. They would rely on Sirpur Paper Mills Limited Vs. Collector of Central Excise, Hyderabad, , Premier Breweries v. State of Kerala 1998 (108) STC 598 and Doypack Systems Pvt. Ltd. Vs. Union of India (UOI) and Ors, . They would submit that taxable turnover, u/s 2(38), was the aggregate of the sale price of all taxable goods, that as "liquor", subsequent to its first sale in the State, ceased to be taxable goods, they could not form part of the taxable turnover and that tax, if any, levied on sale of liquor by Bars and Restaurants was illegal.
According to the Learned Senior Counsel, the Act provides for minimizing the cascading effect of the incidence of tax and for allowability of availment of credit of taxes paid earlier through a mechanism evolved in the form of input tax credit, and its utilization in off-setting the output tax liability, that, in respect of goods specified in Schedule VI, the legislature sought to deny input tax credit as liquor and its containers are made liable to tax at a single point as opposed to the Scheme of VAT where goods are taxed at every stage of sale, that Section 4(3) read with Section 13 and Rule 20(2) manifested the intention of the legislature that, when tax was levied under Schedule IV, input tax credit was available, but where tax was levied on goods under Schedule VI, no input tax credit could be claimed, that, as there was an inseparable link between liquor and its bottles, and as no input tax credit is available for the sale of goods which fall under Schedule VI, the legislative intent is to tax such goods i.e., empty liquor bottles only once and that the turnover relating to second sale of used bottles cannot again be subjected to tax under the IV Schedule as it would amount to double taxation which is not authorized by law.
Sri A.V. Krishna Koundinya, Learned Special Standing Counsel for Commercial Taxes, would submit that empty bottles fall under the category of packing material, that empty bottles supplied to breweries and distilleries, before tax was levied thereupon u/s 6 read with Item I of Schedule VI, was subjected to tax at 4% under Item 90 of Schedule IV, that, while the goods specified in Item No. 1 of the VI Schedule was only liquor, Item 90 of Schedule IV dealt with all kinds of packing material including bottles which were liable to tax at 4%, that levy of tax at 70% on bottles, u/s 6 read with Item No. 1 of the VI Schedule, was only because its contents were liquor, that sale of liquor in bottles was not the same as sale of empty bottles and that Section 6, which applied to packing material when sold along with its contents, was inapplicable to the sale of empty bottles. Learned Standing Counsel would submit that liquor, when sold separately, (i.e., after it is removed from the bottle), was liable to tax u/s 4(9) of the Act, that it was only when bottles were sold, with liquor as its contents, that tax was levied thereon, at the point of first sale in the State, that, as long as liquor was not separated from its containers i.e., bottles, it was not subject to tax at the second or subsequent sale within the State, that, on separation, it ceased to be a container containing liquor and when sold thereafter, without its contents i.e., liquor, the "empty bottles" were liable to be taxed u/s 4(3) read with Item 90 Schedule IV and "liquor" u/s 4(9) of the Act.
Section 2(16) of the Act defines "goods" to mean all kinds of movable property other than newspapers, actionable claims, stocks, shares and securities, and to include all materials, articles and commodities. Empty bottles, which the petitioners herein deal with in the course of their business, are "goods" within the meaning of Section 2(16). Chapter III of the A.P. VAT Act relates to incidence, levy and calculation of taxes. u/s 4(1), save as otherwise provided in the Act, every dealer, registered or liable to be registered as a VAT dealer, is liable to pay tax on every sale of goods in the State at the rates specified in the Schedules. The Schedule is as much a part of the statute, and is as much an enactment, as any other part. ("Craies on Statute law" Seventh Edition; "Statutory interpretation: Second Edition: F.A.R. Bennion). A schedule is an extension of the section which induces it. Material is put in a Schedule because it is too lengthy or detailed to be conveniently accommodated in a Section. It is often found convenient to incorporate part of the operative provisions of an Act in the form of a Schedule. The Schedule is often used to hive off provisions which are too long or detailed to be put in the body of the Act. (Statutory Interpretation: Second Edition: F.A.R. Bennion). To simplify the presentation of statutes it is the practise for their subject matter to be divided wherever appropriate between sections and schedules, the former setting out matters of principle and introducing the latter and the latter containing all matters of detail. This is purely a matter of arrangement and a Schedule is as much a part of the Statute and as much an enactment as is the Section by which it is introduced. (Halsbury''s Law of England 4th Edition vol. 44 para 822).
Section 4(3) requires every VAT dealer to pay tax, on every sale of goods taxable under the Act, on the sale price at the rates specified in Schedules III, IV and V, subject to the provisions of Section 13. Schedule IV is the list of goods taxable at 4% and Item 90 therein relates to all kinds of packing material including Hessain cloth and jute twine but excluding storage tanks made of any material. Empty bottles are packing material and, when sold, are liable to be taxed at 4% u/s 4(3) read with Item 90 of Schedule IV.
Section 4(5) provides that every dealer shall pay tax, on the sale price of the goods specified in Schedule VI, at the special rates and at the point of levy specified therein. Schedule VI relates to goods subjected to tax at special rates and at Item 1 thereof are "All liquors, bottled and packed as per the provisions of the A.P. Excise Act 1968, (including imported liquor), but excluding toddy and arrack". The point of levy of tax on these goods is at the point of first sale in the State and the rate of tax is 70% with effect from 20.6.2005. Section 2(3) of A.P. Excise Act defines "bottle" to mean transfer of liquor from one cask to another cask or from a cask or a vessel to a bottle, jar, flask, pot, closed packet, basket, tin, barrel, case, receptacle, bag, sack or wrapper or any other receptacle in any form in which any intoxicant is packed for the purpose of sale whether or not any process of manufacture is employed, and includes rebottling. Section 2(21) defines "liquor" to include (a) spirits of wine, denatured spirits, methylated spirits, rectified spirits, wine, beer, toddy and every liquid consisting of or containing alcohol; and (b) any other intoxicating substance which the Government may, by notification, declare to be liquor for the purposes of the A.P. Excise Act. Explanation I to Schedule VI of the Act provides that, for the purpose of item (1), when any distillery or brewery or any dealer sells liquor to the A.P. Beverages Corporation Limited, or the Canteen Stores Department, sale by the A.P. Beverages Corporation Limited or the Canteen Stores Department shall be deemed to be the first sale. Explanation II provides that, for the purpose of item (1), sale of liquor by any distillery or brewery or any dealer to the A.P. Beverages Corporation Limited or the Canteen Stores Department shall be exempt from tax under the Act. Explanation III provides that, for the purpose of Item (1), a case means 12 numbers of 1000 ml; 12 numbers of 750 ml; 24 numbers of 375 ml; 48 numbers of 150 ml; 90 number of 100 ml bottles of IML/Wine and numbers of bottles of beer.
The goods, liable to tax u/s 4(5) read with Item 1 of Schedule VI to the Act, are "Liquor, bottled and packed as per the provisions of the A.P. Excise Act, 1968". The point of levy of tax is at the point of first sale in the State which, under Explanation I to Schedule VI, is when the A.P. Beverages Corporation Limited, or the Canteen Stores Department, sell these goods. Sale of empty bottles to breweries/distilleries, prior to its being filled up with liquor and sold to the A.P. Beverages Corporation Limited/Canteen Stores Department, is sale of packing material liable to tax at 4% u/s 4(3) read with Item 90 of Schedule IV to the Act. Sale of liquor by distilleries/breweries to the A.P. Beverages Corporation Limited/Canteen Stores Department is exempt from tax in view of Explanation II to Schedule VI. Sale of bottled liquor by the A.P. Beverages Corporation Limited/Canteen Stores Department is the point of first sale and the rate of tax on these goods is 70%. The second and subsequent sale of bottled liquor is exempt from tax within the State of A.P.
The question which necessitates examination is whether, after liquor is removed from its container i.e., bottles, purchase of these empty bottles from hawkers and unregistered dealers and their subsequent sale to breweries/distilleries, (to be used as containers for liquor), constitutes second and subsequent sale in the State of Andhra Pradesh exempt from tax u/s 2(38), 4(5) and 6 read with Item I of Schedule VI to the Act.
Section 2(38) defines "taxable turnover" to mean the aggregate of the sale price of all taxable goods. Under Explanation II thereof, the sale price relating to second and subsequent sale of goods specified in Schedule VI shall not form part of the taxable turnover. The expression "in relation to" (so also "pertaining to"), is a very broad expression which presupposes another subject matter. These are words of comprehensiveness which might have both a direct and an indirect significance depending on the context. In 76 Corpus Juris Secundum at pages 620 and 621 it is stated that the term "relate" is also defined as meaning to bring into association or connection with. The words "relating to" has been held to be equivalent to or synonymous with the expression "concerning with" and "pertaining to". The expression "pertaining to" is an expression of expansion and not of contraction. (Doypack Systems (Pvt) Ltd. 1988 (36) ELT 201; Sirpur Paper Mills Limited 2003 (159) ELT 17.
Section 6 relates to tax on packing material and, thereunder, where goods sold or purchased are contained in containers or are packed in any packing material liable to tax under the Act, the rate of tax applicable to such containers or packing material shall, whether the price of the containers or packing material is charged for separately or not, be the same as the rate of tax applicable to such goods so contained or packed, and where such goods sold or purchased are exempt from tax under the Act, the containers or packing material shall also be exempted.
Explanation II to Section 2(38) of the Act exempts the sale price, relating to the second and subsequent sale of goods specified in Schedule VI, from forming part of the taxable turnover of a dealer. As noted hereinabove, what is specified in Item I of Schedule VI is "Liquor bottled and packed as per the provisions of the A.P. Excise Act". Bottled liquor, on its second and subsequent sale by a dealer within the State of A.P, is exempt from forming part of the taxable turnover under Explanation II to Section 2(38). It is no doubt true that, u/s 6, where goods sold are contained in containers, the rate of tax applicable to such containers shall be the same as the rate of tax applicable to the goods sold as contained in such containers. Section 6 which provides that the rate of tax and the point of levy applicable to the turnover of containers or packing materials shall be the same as those applicable to the goods contained or packed, will apply even in a case where the containers or the packing material has already been subjected to tax under the Act. When the goods contained in containers, or packed in packing materials, are sold, the containers and the packing material will have to be taxed at the same rate at which the goods are liable to be taxed. Premier Breweries 1998 (108) STC 598.
On a conjoint reading of Section 6 with Item I to Schedule VI to the Act and, as the rate of tax on such goods is 70%, the containers i.e., empty bottles in which liquor is contained or packed is liable to be taxed at 70% notwithstanding that it is liable to be taxed at 4%, as packing material, u/s 4(3) read with Item 90 of Schedule IV to the Act. As long as liquor continues to remain in bottles, and is not separated therefrom, no tax can be levied on the second and subsequent sale of such bottled liquor within the State of A. P. Both liquor and empty bottles separately, and on their own, constitute "goods" u/s 2(16) of the Act. When liquor is removed/ separated from its containers and, thereafter, liquor and the empty bottles are separately sold, they cease to remain "Liquor, bottled and packed as per the provisions of the A.P. Excise Act, 1968" and hence sale of such goods i.e., "liquor", and "empty bottles" separately are liable to be taxed under the Act. In this context it is appropriate to refer, in juxta-position, to the provisions of Section 4(9) as it originally stood and after its amendment by Act 10 of 2006 with effect from 24.11.2005:
Section 4(9) as it originally stood Section 4(9) after its amendment by Act 10/2006 w.e.f. 24.11.05
Every VAT dealer running any Notwithstanding anything restaurant, eating house, or hotel contained in the Act, every dealer by whatever name called, who running any restaurant, eating supplies, by way of or as part of house, catering establishment, any service or in any other hotel, coffee shop, sweet shop or manner whatsoever of goods, any establishment by whatever being food or any other article name called and any club, who for human consumption or drink supplies by way of or as part of other than liquor and whether or any services or in any other not such goods have suffered tax manner whatsoever of goods under the Act, where such supply being food or any other article or service is for cash, deferred for human consumption or drink payment, or other valuable shall pay tax at the rate of consideration, may opt to pay tax twelve and half percent (12.5%) by way of composition at the rate of on sixty percent (60%) of the twelve and half per cent (12.5%) on taxable turnover, if the taxable sixty per cent (60%) of the total turnover in a period of preceding amount charged by the said VAT twelve months exceeds dealer for such supply. Rs.5,00,000/- (Rupees five lakhs) or in the preceding three months exceeds Rs. 1,25,000/- (Rupees one lakh twenty five thousand). Provided that tax at the rate mentioned in the Schedules against those goods shall be paid, where the eating establishments mentioned above, sell packaged items with Maximum Retail Price across the counter. Provided further that no tax, is payable by the hostels whether attached to educational institutions or run by charitable organizations, where such institutions and organizations charge less than Rs.1000/- (Rupees one thousand only) per student per month towards mess charges.
Since the assessment orders, under challenge in these writ petitions, relate to a period prior to amendment of Section 4(9) by Act 4 of 2009 with effect from 01.05.2009, the provision applicable is Section 4(9) after its amendment by Act 10 of 2006 with effect from 24.11.2005. Section 4(9) starts with a non-obstante clause and, thereunder, every dealer running any restaurant, club etc., who supplies drinks shall pay tax at 12.5% on 60% of the taxable turnover. A non-obstante clause is generally appended to a Section with a view to give the enacting part of the Section, in case of conflict, an overriding effect over such other provisions of the Act as are mentioned in the non-obstante clause. It is equivalent to saying that, inspite of the provisions of the Act, the provision following the non-obstante clause will have full operation or the provisions of the Act will not be an impediment for the operation of the provision in which the non-obstante clause occurs. State of Bihar and Others Vs. Bihar Rajya M.S.E.S.K.K. Mahasangh and Others, . Non-obstante clauses are to be regarded as clauses which remove all obstructions which might arise out of the provisions of the Act coming in the way of the operation of the principal enacting provision to which the non-obstante clause is attached. State of Bihar and Others Vs. Bihar Rajya M.S.E.S.K.K. Mahasangh and Others, ; Iridium India Telecom Ltd. Vs. Motorola Inc., . It is equivalent to saying that, inspite of the provision of the Act, the enactment following the non-obstante clause will have its full operation. The South India Corporation (P) Ltd. Vs. The Secretary, Board of Revenue Trivandrum and Another, . While interpreting a provision containing a non-obstante clause it should first be ascertained what the enacting part of the section provides, on a fair construction of the words used according to their natural and ordinary meaning, and the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in the other provisions which is inconsistent with the Section containing the non-obstante clause. Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, ; A.V. Fernandez Vs. The State of Kerala, .
Prior to its amendment by Act 10 of 2006, Section 4(9) excluded liquor from the category of "drinks". The words "other than liquor" in Section 4(9) were deleted by Amendment Act 10 of 2006. When the Legislature amends an Act by deleting something which was there, then in the absence of an intention to the contrary the deletion must be taken to be deliberate. D.R. Fraser and Co. v. Minister of National Revenue 1949 AC 24; Hari Vishnu Kamath Vs. Election Tribunal and Another, . The golden rule in such cases is to find out what was the provision before the section was amended; what was the defect in the previous section; what remedy the Legislature adopted to cure the defect and lastly to find out the true reason of the remedy now adopted by the Legislature. Morisetty Bhadraiah v. The Sales Tax Appellate Tribunal, Hyderabad, A.P. 1964 (1) AnWR 361. It is evident that the intention of the legislature, in deleting the words "other than liquor", by Act 10 of 2006, was to bring liquor within the ambit of Section 4(9) of the Act. On a fair construction of the words used in the enacting part of Section 4(9) it is clear that sale of liquor, on its being separated from its containers i.e., bottles, is liable to be taxed notwithstanding the prescription in Sections 2(38), 4(5) read with Schedule VI to the Act. Further, in view of the non-obstante clause contained therein, the enacting part of Section 4(9) shall, in the case of conflict, have an overriding effect over the other provisions of the Act. Likewise empty bottles, which have ceased to retain the identity of bottles containing liquor, are liable to be taxed as packing material, u/s 4(3) read with Item 90 of Schedule IV of the Act, at 4%.
Section 13 relates to credit for input tax and, under Sub-section (1) thereof, subject to the conditions if any prescribed, input tax credit shall be allowed to the VAT dealer for the tax charged in respect of all purchases of taxable goods, made by that dealer during the tax period, if such goods are for use in the business of the VAT dealer. Section 13(1) further provides that no input tax credit shall be allowed in respect of the tax paid on the purchase of goods specified in Schedule VI. u/s 13(4), a VAT dealer shall not be entitled for input tax credit in respect of purchase of such taxable goods as may be prescribed. Rule 20 of the A.P. VAT Rules, 2005 relates to input tax credit. The items specified under Rule 20(2) are not eligible for input tax credit.
While input tax credit is to be allowed to a dealer for the tax charged in respect of purchase of taxable goods, if such goods are used in his business, no input tax credit can either be allowed on purchase of goods specified in Schedule VI or with respect to the goods detailed in Rule 20(2). As a result, "Liquor, bottled and packed under the provisions of the A.P. Excise Act" is not entitled for input tax credit. Such goods are, however, not liable to tax on its second and subsequent sale within the State of Andhra Pradesh. These limitations/exemptions apply as long as Liquor continues to remain packed in bottles as specified under the provisions of the A.P. Excise Act. Once liquor is removed from its container, i.e., bottles, neither ''liquor" nor "empty bottles" constitute goods falling under Item I of Schedule VI to the Act. No provision has been brought to our notice whereby a VAT dealer is disentitled from availing the benefit of input tax credit on sale of packing material, including empty bottles, even when he fulfils the conditions prescribed under the Act and the Rules made thereunder.
Levy of tax on sale of empty bottles at 4%, u/s 4(3) read with Item 90 of Schedule IV, is, therefore, valid. The writ petitions are, accordingly, dismissed. However, in the circumstances, without costs.