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PETITIONER: SRI SIDDHI VINAYAKA COCONUT & CO. & ORS.  ETC.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT02/05/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN GOSWAMI, P.K. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR 1111            1974 SCR  (1) 440  1974 SCC  (4) 835

ACT: Andhra  Pradesh General Sales Tax Act as amended by Act  XII of  1971--Sections  7 and 8 item 5 A to Third  Schedule  and entries    relating   to   "watery   coconuts"   in    Third Schedule--"Watery coconuts" and dried  "coconuts"--Provision for  refund  of  tax  paid--Provisions  whether   contravene sections 14 and 15 of Central Sales Tax Act.

HEADNOTE: The  First Schedule to the Andhra Pradesh General Sales  Tax Act contains goods in respect of which a single point  sales tax  only  is  leviable under sec.  5(2)  (a).   The  Second Schedule  contains goods in respect of which a single  point purchase tax only is leviable under sec. 5(2)(b).  The Third Schedule  contains  declared  goods in respect  of  which  a single  point tax only is leviable under see. 6. The  Fourth Schedule  contains goods exempted from tax under sec. 8.  By an  amendment  made  in  1961, there  was  only  one  entry, ’,Coconuts’  in the Third Schedule and the  Fourth  Schedule contained  ’tender  coconuts  which  are  useful  only   for drinking  purposes’  which  were  exempted  from  tax.   The explanation  to the Third Schedule containing definition  of the   expression   "coconuts"  was   replaced   by   another explanation by the Amending Act XVI of 1963.  The result was that  the  Coconuts  were divided  only  into  two  classes, "coconuts"  as  defined in the explanation and  the  ’tender coconuts".   After  the amendment of  1963  certain  dealers questioned  their liability to tax on the purchases made  by them  of watery coconuts.  The challenge was upheld  by  the Andhra  Pradesh  High Court in Sri Krishna Coconut  Co.,  v. Comml.  Tax Officer (16.  STC 511).  Thereafter, by Amending Act  18  of 1966 the explanation in the Third  Schedule  was replaced  by another explanation.  At the same time item  10 "watery coconuts" was included in the Second Schedule and to this   there  was  added  an  explanation   containing   the definition of the expression "watery coconuts".  The  result was  that  for the first time "coconuts" were  divided  into three   classes,  tender  coconuts,  watery   coconuts   and coconuts.

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After this the question arose whether "watery coconuts"  are oilseeds  and as such declared goods within the  meaning  of that  term in item 6 of section 14 of the Central Sales  Tax Act and the Andhra Pradesh High Court in Tagoob Mohammed  v. Comml.  Tax Officer (28 STC 110) held that "watery coconuts" were  oilseeds.  It was thereafter that the  Andhra  Pradesh Legislature passed Amending Act XII of 1971 which came  into force on 17-4-1971.  By this Act item 10 in Second  Schedule relating  to "watery coconuts" and the  explanation  thereto were  omitted  and this amendment was given effect  to  from 1-8-1963.   Item  5  of the Third Schedule  was  amended  as "coconuts  of  all  varieties"  and  a  new  item  5-A   @as introduced.   The  proviso to item 5-A inter  alia  provided that, where during the periods (1-8-1963 to 31-3-1965,  1-4- 1965  to 22-12-1966 and 23-12-1966 and 16-4-1971),  any  tax has been levied and collected in respect of watery  coconuts and where tax has also been levied and collected in  respect of  coconuts formed out of such watery coconuts, the tax  so levied  and  collected in respect of  such  watery  coconuts shall  alone be refunded.  Explanation 1 to  Third  Schedule was omitted.  The Act also introduced two new sections 7 and 8.  Section 7 seeks retrospectively to validate  assessments and collections of tax on past transactions from August 1963 to   April  1971.   Section  8  provides  for  revision   of assessments.   The  definition of oilseeds in item  (vi)  to sec.  14 of the Central Sales Tax Act, after  Amendment  Act LXI  of  1972  which came into force  on  1-4-1973  read  as follows : "(vi) Oilseeds. that is to say,-(8) Coconut  (i.e. copra excluding tender coconuts (Cocos nucifera)".  The writ petitions  filed  before the High Court  of  Andhra  Pradesh challenging the validity of the new item 5-A and sections  7 and  8 and also the entries relating to watery  coconuts  in the Third Schedule to the Principal Act on the 441 ground  that  these provisions offend ss. 14 and 15  of  the Central Sales Tax Act, were dismissed by the division  Bench of the Andhra Pradesh High Court. Rejecting the civil appeals and the petitions under  Article 32 of the Constitution. HELD : Act XII of 1971 deals with the period between  August 1963  to April 1971 and validates taxes already  levied  and collected.  therefore. the proviso to entry 5-A of  Schedule III  which provides for refund does not really  suffer  from the  defect  pointed  out by the Supreme  Court  in  Bhawani Cotton Mills case (20 STC 290) that a provision for taxation which  would not be justifiable cannot be upheld  merely  on the ground that it provides also for a refund.  The  various periods  mentioned  in item 5-A are there  because  of  his- torical   reasons  and  they  are  only   reproductions   of provisions of earlier law. [446E] Decision in Rattan Lal & Co. v. Assessing Authority (25  STC 136) held to apply to the facts of the present case and  not the decision in Bhawani Cotton Mills case. There  is no possibility of "watery coconuts" suffering  tax after  they  became  dried coconuts, if  they  have  already suffered  tax as "watery ;Coconuts".  Rule 45 of the  Andhra Pradesh  General  Sales Tax Rules enabling  the  dealers  in watery  coconuts  or  in dry coconuts to  include  in  their return  only  goods which are liable to tax  and  not  those which   have  already  suffered  tax,  provides   sufficient safeguards for this purpose. [447E-F] The same commodity at different stages Could be treated  and taxed as commercially different articles. [447G] A.Hajee Abdul Shakoor &, Co. v. State of Madras [1964]  8 SCR 217, Jagannath v. Union of India, [1962] 2 SCR 118, East

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India  Tobacco Co. v. State of Andhra Pradesh [1963]  1  SCR 404 and Venkatraman v. Madras [1970] 1 SCR 615 referred to- Commercially speaking, "watery coconuts" and dried  coconuts are two distinct commodities.  Watery coconuts are put to  a variety  of uses e.g., for cooking purposes,  for  religious and social functions whereas dried coconuts are used  mainly for extracting oil. [447F-G] The  Amending Act XII of 1971 also does not contravene  sec. 15  of  the  Central Sales Tax Act because  under  the  Act. though  watery  coconuts  and  dried  coconuts  are  treated separately  there  is a provision for refund when  the  same watery  coconuts,  which have suffered the  tax  become  dry coconuts latter. [448B]                          ARGUMENTS For petitioners and appellants Entry  5-A in Sch.  III introduced in the Act by Act  12  of 1971  contravenes sec. 15 read with sec. 14 of  the  Central Sales  Tax Act in as much as it subjects coconuts which  are declared  goods to taxation at two stages; namely.  once  at the  stage  of  watery coconuts and again at  the  stage  of ’dried  coconuts’.  The mere possibility of double  taxation would  render a taxing provision contravene sec. 15  of  the Central  Act  : Bhawani Cotton Mills Case (20  S.T.C.  290). But the provision for refund in the impugned Act 12 of  1971 cannot cure the defect.  Secondly, the provision for  refund is entirely illusory in character and ineffective by  reason (a)  of  inherent difficulty in the situation,  in  that  no dealer  can identify that in a given case "watery  coconuts" or  "coconuts" is sold by him or by a subsequent  dealer  as "dried  coconuts",  (b) in that no dealer can  have  in  his possession  material necessary for such identification;  and (e) Rule 45 of the A.P. General Sales Tax Rules cannot  help the dealer to trace the career of the "watery coconuts"  and ascertain  whether it was sold as "dry coconuts" and if  so, by whom and when.  It is not open to the State to divide the genus  i.e. "coconut", which is an oil seed, into  different varieties  and  tax  each  variety at  a  single  stage  and circumvent  the  restrictions placed under sec.  15  of  the Central Act. 442 For  the Respondent : It can hardly be argued  that  because the State law imposes a tax on one type of oilseed it cannot tax  any other kind of oil-seed.  The State Legislature  has taken  not,.,  of tile realities of the  trade  in  coconuts while  classifying them into three categories viz.   "tender coconuts". and "dried coconuts" Commodities belonging to  on genus  have been treated is separate and  distinct  entities for purposes of taxation and the courts have recognised such distinction in several cases : [1962] ’2’ S.C.R. 118; [1963] 1  S.C.R.  404; [1970] 1 S.C.R. 615; [9641]  8  S.C.R.  217; A.I.R. 1973 S.C. 1034 and 24 S.T.C. 430. The  scheme  of  the impugned Act is  to  tax  both  "watery coconuts"   and  "dried  coconuts"  when   they   constitute different   commodities,  but  when  they   constitute   one commodity as in cases where "dried coconuts" are formed  Out of " waterly coconuts", which have already been Subjected to tax, to tax only "dried coconuts" and refund the tax  levied on  "watery coconuts".  The impugned Act makes the stage  at which tax is to be levied amply clear and Rule 45 enables  a dealer  to ascertain whether the goods had already  suffered tax at all earlier stage.

JUDGMENT:

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ORIGINAL JURISDICTION  Writ Petitions Nos. 1424 & 1612 of 1973. Petitions under Article 32 of the Constitution of India  for enforcement of fundamental rights. S.   V. Gupte (in W.P. No. 1424/73) only, A. Subba Rao and G.   Narayana Rao, for the petitioners/appellants). B. Basi and P. P. Rao, for the respondents. The Judgment of the Court was delivered by ALAGIRISWAMI, J. The question for decision in these cases is about  the liability to sales tax under the  Andhra  Pradesh General  Sales  Tax  Act  of  "Watery  coconuts".   The  Act contains four schedules.  The First Schedule contains  goods in  respect  of  which  a single point  sales  tax  only  is leviable  under  section  5(2)  (a).   The  Second  Schedule contains  goods in respect of which a single point  purchase tax  only  is leviable under section 5 (2) (b).   The  Third Schedule  contains  declared  goods in respect  of  which  a single  point  tax  only is leviable under  section  6.  The Fourth  Schedule  contains  goods exempted  from  tax  under section 8. By an amendment made in 1961, there was till 1963 only  one entry, ’coconuts’, in the Third Schedule  and  the Fourth Schedule contained ’tender coconuts which are  useful only  for drinking purposes’ which were exempted  from  tax. An explanation to the Third Schedule read as follows :               "The  expression "coconuts" in  this  Schedule               means  fresh  or  dried  coconut  shelled   or               unshelled   including  copra,  but   excluding               tender coconuts."               By  Amending Act XVI of 1963 this  explanation               was  replaced  by another  explanation,  which               read               "The  expression "coconuts" in  this  Schedule               means  dried  coconuts, shelled  or  unshelled               including   copra,.   but   excluding   tender               coconuts," Thus coconuts were divided only into two classes, "coconuts" as defined in the explanation and "tender coconuts". 443 After the amendment of 1963 certain dealers questioned their liability  to  tax on the purchases made by them  of  watery coconuts.   That  challenge was upheld by a  learned  Single Judge  of  the  Andhra Pradesh High  Court  in  Sri  Krishna Coconut Co. v. Comml.  Tax Officer (16 STC 511) The  learned Judge’s  reasoning  was that a fully grown  coconut  with  a well-developed  kernel  which contains water  could  not  be called either a tender or a dried coconut, and that this was the  well-known  variety  of  coconuts  used  for   culinary purposes  and  on auspicious occasions and as  part  of  the offerings  in temples.  He drew particular support  for  his conclusion  from the omission of the word "fresh"  from  the new explanation in the Third Schedule. Thereafter,  by Amending Act 18 of 1966 the  explanation  in the Third Schedule was replaced by another explanation which read :               "The  expression  "coconuts" in item  5  means               dried coconuts, shelled or unshelled including               copra,  but does not include  watery  coconuts               falling  under item 10 of the Second  Schedule               and  tender coconuts failing under item  9  of               the Fourth Schedule."               At the same time item 10 "watery coconuts" was               included  in the Second Schedule and  to  this               there was an explanation added which read               "The  expression "watery coconuts" in item  10               includes  all  coconuts  other  than  coconuts

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             falling under item 5 of the Third Schedule and               tender  coconuts falling under item 9  of  the               Fourth Schedule."               Thus  for  the  first  time  "coconuts"   were               divided  into three classes, tender  coconuts,               watery coconuts and coconuts.               After this the question arose whether  "watery               coconuts"  are oilseeds and as  such  declared               goods within the meaning of that term in  item               6  of section 14 of the Central Sales Tax  Act               and  the Andhra Pradesh High Court  in  Tagoob               Mohammad  v. Comml.  Tax Officer (28 STC  110)               held that "watery coconuts" were oilseeds.  It               was   thereafter  that  the   Andhra   Pradesh               Legislature  passed Amending Act XII  of  1971               which  came into force on 17-4-1971.  By  that               Act  item  10 in Second Schedule  relating  to               "watery coconuts" and the explanation  thereto               were  omitted  and this  amendment  was  given               effect to from 1-8-1963.  Item 5 of the  Third               Schedule  was  amended as "  coconuts  of  all               varieties"  and a new item 5-A was  introduced               which reads as follows :               "5-A. (i) At the point of last purchase in the               State Watery    during  the period  commencing               on  the 1st Coconuts August, 1963  and  ending               with the 31st March, 1965.               (ii)At the point of first sale in the  State               2  paise in  during the period  commencing  on               the 1st  the rupee               444               April, 1965 and ending with the 22nd December,               1966.               (iii)At  the point of first purchase  in  the               State during the period commencing on the 23rd               December  1966,  and  ending  with  the               date  immediately  before  the  date  of   the               commencement  of  the Andhra  Pradesh  General               Sales  Tax (Amendment) Act, 1971 :3  paise  in               the rupee               Provided  that  where  during  the   aforesaid               periods, any tax has been levied and collected               in  respect of watery coconuts and  where  tax               has also been levied and collected in  respect               of   coconuts  formed  out  of   such   watery               coconuts,  the tax so levied and collected  in               respect of such watery coconuts shall alone be               refunded."               Explanation 1 to Third Schedule which  related                             to a definition of "coconut" was also  omitted.               The Act also introduced two new sections,  ss.               7 and 8 which read as follows               "7.  Validation of assessments etc.                (1)Notwithstanding    anything    in    any               judgment,  decree  or order of  any  Court  or               other  authority to the contrary, and  subject               to   the   provisions  of   section   8,   any               assessment,  reassessment, levy or  collection               of  any  tax made or purporting to  have  been               made,  any  action or thing taken or  done  in               relation  to  such  assessment,  reassessment,               levy or collection under the provisions of the               principal Act before the commencement of  this               Act,  shall  be  deemed to  be  as  valid  and

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             effective   as   if   such   assessment,   re-               assessment,  levy or collection or  action  or               thing  had been made, taken or done under  the               principal  Act  as  amended by  this  Act  and               accordingly-               (a)all acts, proceedings or things done  or               taken  by  the  State  Government  or  by  any               officer  of  the State Government  or  by  any               other   authority  in  connection   with   the               assessment,  reassessment, levy or  collection               of  such  tax,  ,,hall for  all  purposes,  be               deemed to be and to have always been, done  or               taken in accordance with law;               (b)no  suit or other proceedings  shall  be               maintained or continued in any court or before               any authority for the refund of any such  tax;               and               (c)no  court  shall enforce  an  decree  or               order directing the refund of any such tax.               (2)It  is hereby declared that  nothing  in               sub-section   (1)   shall  be   construed   as               preventing any person                                    445               (a)from questioning in accordance with  the               provisions of the principal Act, as amended by               this  Act, any assessment, reassessment,  levy               or  collection  of  tax referred  to  in  sub-               section (1); or               (b)from claiming refund of any tax paid  by               him  in excess of the amount due from  him  by               way of tax under the principal Act as  amended               by this Act :               Provided that every application for any relief               under  this sub-section shall be made  by  the               person  concerned to the  assessing  authority               within  a period of one year from the date  of               the commencement of this Act and the assessing               authority may, after making such inquiry as he               deems  necessary and after giving  the  person               concerned an opportunity of being heard,  pass               such order as he deems fit."               "8.  Revision of assessment on coconuts               (1)Notwithstanding    anything    in    any               judgment,  decree  or order of  any  court  or               other authority to the contrary, the assessing               authority may assess or reassess the amount of               tax  payable  by the dealer  on  his  turnover               relating  to coconuts of all varieties  during               the period commencing on the 1st August,  1963               and  ending with the date  immediately  before               the  date of the commencement of this Act,  in               accordance   with   the  provisions   of   the               principal Act, as amended by this Act.               (2)Notwithstanding the expiration of any of               the  periods  specified in section 14  of  the               principal  Act, an assessment or  reassessment               under  sub-section  (1) may be made  within  a               period   of   one  year  from  the   date   of               commencement of this Act."               Another  statutory provision which  should  be               noticed is section 14 of the Central Sales Tax               Act  with regard to what are  called  declared               goods.   Item (vi) therein originally read  as               follows               (vi)oil-seeds,   that  is  to   say,   seeds

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             yielding  non-volatile  oils  used  for  human               consumption,   or  in  industry,  or  in   the               manufacture of varnishes, soaps and the  like,               or  in  lubrication  and  volatile  oils  used               chiefly in medicines, perfumes, cosmetics  and               the like";               By Amendment Act LXI of 1972, which came  into               effect on 1-4-73 it was amended as follows :               "(vi) Oilseeds, that is to say,               (8)   Coconut  (i.e.  copra  excluding  tender               coconuts (cocos nucifera);" 446 After  the  amendments made by Act XII of 1971 a  number  of writ   petitions  were  filed  before  the  High  Court   of Judicature,  Andhra Pradesh.  They were all dismissed  by  a Division Bench consisting of. the learned Chief Justice and Justice Lakshmaiah.  The civil appeals are by some of the petitioners therein and the  writ petitions are filed by certain other dealers direct to  this Court under Art. 32 of the Constitution, It  is  unnecessary to consider whether the  Andhra  Pradesh High Court was right in its decision that watery coconut  is an  oilseed for the reasons given by them, especially  after the amendment made by the Central Act which seems to proceed on  the  basis that only copra is an oilseed as  the  Andhra Pradesh  Act  proceeds on the basis that watery  coconut  is also an oilseed.  That amendment applies only to the  period after 1 April 1973 and these appeals and petitions relate to the  period before 17 April 1971.  Mr. Basi Reddy  appearing for  the State of Andhra Pradesh does not seek  to  question this finding either.  Undoubtedly, it is the watery  coconut that in due course becomesdry  coconut  or  copra.   Mr. Basi Reddy does not even seek to arguethat the same watery coconut  after having suffered tax should also be  taxed  as dry coconut. The  first point to be noticed about the 1971  amendment  is that in one of its aspects it deals with the period  between August 1963 to April 1971 and validates taxes already levied and  collected.   There fore, the proviso to  entry  5-A  of Schedule  III  which  provides for refund  does  not  really suffer from the defect pointed _out by this Court in Bhawani Cotton Mills case (20 STC 290) that a provision for taxation which  would not be justifiable cannot be upheld  merely  on the ground that it provides also for a refund.  The  various periods   mentioned  in  item  5-A  are  there  because   of historical  reasons  and  they  are  only  reproductions  of provisions  of  earlier law.  The decision  in  the  Bhawani Cotton  Mills  case on which the petitioners  relied  cannot apply   in  this  case  because  in  the  Act  there   under consideration there was no provision indicating the stage at which  the  tax was to be levied.  The very  same  levy  was upheld  in Rattan Lal & Co. v. Assessing Authority  (25  STC 136)  after the Act was amended by specifying the  stage  as the  last  purchase or sale of declared goods  by  a  dealer liable to pay the tax and making the stage quite clear,  and by  giving  the  dealer  an  option  not  to  include  other transactions  in  his returns and thus saving him  from  the liability  to pay the tax till he was the dealer  liable  to pay the tax.  This Court then pointed out that the     information whether  his  was  the, last purchase  or  sale  was  always possessed  by  a dealer and by providing that  he  need  not include inhis  turnover any transaction except when  he was  the  last dealer, the position was made clear.   It  is this  decision that will be applicable to the facts of  this case.

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In this connection we may point out that the provisions  of Rule  45 of the Andhra Pradesh General Sales Tax  Rules  are similar. 447 It  provides  that every dealer has to maintain a  true  and correct  account  showing the value of the  goods  produced, manufactured,  bought  and  sold  by  him,  the  names   and addresses  of  the persons from whom goods  were  purchased, supported  by a bill or delivery note issued by the  seller. Every dealer carrying on business in the goods specified  in the  First, Second and Third Schedules whose total  turnover exceeds  Rs.  10,000 a year and every  other,  dealer  whose turnover  exceeds  Rs. 20,000 a year shall issue a  bill  or cash memorandum in respect of every sale involving an amount of Rs. 5 or more.  Every such bill or cash memorandum  shall be duly signed and dated and a counterfoil shall be kept  by the dealer.  The bills or cash memoranda issued by a  dealer shall be serially numbered for each year and in each of  the bills or cash memoranda issued the dealer shall specify  the full  name  and  style of his business, the  number  of  his registration certificate, the particulars of goods sold  and the  price thereof and in the case of sales to a dealer  the full  name  and address and the number of  the  registration certificate  of the purchaser.  The bill or  cash  memoranda issued  in  the case of sales of goods liable  to  a  single point  tax shall contain the following certificate . .  .  . "Certified that in respect of the turnover of the goods men- tioned  in item(s) of this bill the tax has been paid  or/is payable  by  me or is payable by Sri/M/s. . .  .  being  the dealer who has purchased them from me." These make it  amply clear  that there can be no question of either a  dealer  in watery coconuts or in dry coconuts having to pay a tax  over again  hereafter.   They can include in  their  return  only goods  which  are liable to tax and need not  include  those which have already suffered tax. Another aspect of the 1971 Act that as a result of it  there are two entries, 5 and 5A in Schedule III, namely  ’coconuts of  all  varieties’  and  ’watery  coconuts’  there  is   no possibility  of ’watery coconuts, suffering tax  after  they become dried coconuts, if they have already suffered tax  as ’watery  coconuts’.  Rule 45 provides sufficient  safeguards for this purpose. We  also accept the contention put forward on behalf of  the State  of Andhra Pradesh that ’watery coconuts’  and  ’dried coconuts’   are   two  distinct   commodities   commercially speaking.   Watery  coconuts ,ire put to a variety  of  uses e.g.   for  cooking  purposes,  for  religious  and   social functions  whereas  dried  coconuts  are  used  mainly   for extracting  oil.  This Court has in a number of  cases  held that the same commodity at different stages could be treated and  taxed as commercially different articles.  In A.  Hajee Abdul Shakoor & Co. v.State of Madras (1964 8 SCR 217)  this Court  held that "hides and skins in the untanned  condition are  undoubtedly different as articles of  merchandise  than tanned hides and skins" and pointed out that "the fact  that certain articles are mentioned under the ’same heading in  a statute  or  the constitution, does not mean that  they  all constitute  one  commodity."  We  may  also  refer  to   the decisions  in Jagannath v. Union of India (1962 2  SCR  118) where  tobacco in the whole leaf and tobacco in  the  broken leaf were treated as two different 448 commodities,  East  India  Tobacco Co. v.  State  of  Andhra Pradesh (1963 1 SCR 404) where Virginia tobacco and  country tobacco  were  treated  as two  different  commodities,  and

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Venkataraman  v. Madras (1970 1 SCR 615) where cane  jaggery and palm jaggery were treated as two different commodities. We  do  not  think that the Act can be  said  to  contravene section  15  of the Central Sales Tax Act.   Under  the  Act though  watery  coconuts  and  dried  coconuts  are  treated separately  there  is a provision for refund when  the  same watery  coconuts,  which  have  suffered  tax,  become   dry ,coconut later.  It is for this contingency that, as we have pointed  out earlier, provision for refund is made.  In  any case  in the future no difficulty would arise as we  pointed out earlier. In  the  result  all  the writ  petitions  and  appeals  are dismissed.  The appellants and writ petitioners will pay the costs- of the State of Andhra Pradesh, one set. V.M.K.               Petitions & appeals dismissed. 449