AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2009 (10) TMI 870
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....e 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. The 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, their 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 second respondent issued a notice proposing to levy tax, for the period April, 2008 to December, 2008, on such sale of....
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.... 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 under section 4(3) read with item 90 of the Fourth Schedule to the Act, that, by necessary implication, packing material, as referred to in item 90 of the Fourth Schedule, did not include packing material already taxed under the Sixth Schedule 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 v. Collector of Central Excise, Hyderabad [2003] 159 ELT 17, Premier Breweries v. State of Kerala [1998] 108 STC 598 (SC) and Doypack Systems (Pvt.) Ltd. v. Union of India [1989] 65 Comp Cas 1 (SC); [1988] 36 ELT 201. They would submit that taxable turnover, under section 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 senio....
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.... 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 under section 4(3) read with item 90 of the Fourth Schedule and "liquor" under section 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. Under section 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 Sche....
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....r 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 the Sixth Schedule 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 o....
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....ding 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 asso iation or connection with. The words "relating to" have 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 (SC), 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 sales of goods specified in the S....
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.... with effect from November 24, 2005: Section 4(9) as it originally stood Section 4(9) after its amendment by Act 10/2006 with effect from November 24, 2005 Every VAT dealer running any restaurant, eating house, or hotel by whatever name called, who supplies, by way of or as part of any service or in any other manner whatsoever of goods, being food or any other article for human consumption or drink other than liquor and whether or not such goods have suffered tax under the Act, where such supply or service is for cash, deferred payment, or other valuable consideration, may opt to pay tax by way of composition at the rate of twelve and half per cent (12.5 per cent) on sixty per cent (60 per cent) of the total amount charged by the said VAT dealer for such supply. Notwithstanding anything contained in the Act, every dealer running any restaurant, eating house, catering establishment, hotel, coffee shop, sweet shop or any establishment by whatever name called and any club, who supplies by way of or as part of any services or in any other manner whatsoever of goods, being food or any other article for human consumption or drink shall pay tax at the rate of twelve and half per cent ....
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....d of Revenue, Trivandrum [1964] 15 STC 74 (SC); AIR 1964 SC 207). 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 Ghose v. Arabinda Bose AIR 1952 SC 369, A.V. Fernandez v. State of Kerala [1957] 8 STC 561 (SC); AIR 1957 SC 657). 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 Kamatu v. Election Tribunal AIR 1958 MP 168). The golden rule in such cases is to find out what was the provision befor....