TaxTMI 
TaxTMI 
TaxTMI 
2010 (12) TMI 1105
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....side the assessment order and exempted the appellant from payment of sales tax on the sale of old newspaper. A suo motu revisional proceedings came to be initiated against the appellant and without hearing the appellant, the revisional authority set aside the order passed by the appellate authority fixing the tax liability on the appellant. Aggrieved by the said order, the appellant/assessee is before this court. This is for the assessment year 2002-03. STRP Nos. 36 of 2007 and 39 of 2008, pertain to the period between April 1, 2001 to March 31, 2002 and April 1, 2002 to March 31, 2004, respectively. In these two cases, the dealer was in the business of selling old waste paper and old newspaper and admittedly he is a registered dealer under the Act. The assessment for the aforesaid said two years came to be passed on February 27, 2003 and August 25, 2004, respectively. Aggrieved by the assessment orders questioning the levy of tax on old newspaper, appeals came to be filed before the first appellate authority. The first appellate authority on March 26, 2005, dismissed the appeal in respect of assessment of tax for the year 2001-02. So far as the assessment order for the year 2002....
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....and not as the single/separate units as newspapers. Admittedly, he has sold the old newspapers to the manufacturing industries and not to the public for reading purpose. Therefore, it is required to be debatable as stated supra. 3. Whether entry 54 of List II of the Seventh Schedule can be read so as to include 'old newspaper/raddi paper' having scrap value and no value of news as (newspaper)? In STRP No. 36 of 2007: 1. Whether the Tribunal is justified in concluding on the facts and circumstances of the case by interpreting the decision of the Full Bench of the Andhra Pradesh High Court, wherein the Full Bench which has rightly distinguished the point involved in this petition of the two Division Bench judgments of the apex court in respect of the similarly situated situations that arose before the Full Bench of the Andhra Pradesh High Court? 2. Whether the Tribunal has applied its mind before concluding on the ground that the later judgment of the apex court is applicable even if it is distinguished by the Full Bench of the Andhra Pradesh High Court. Therefore, the question arising in this revision petition is required to be reconsidered on the ground that the respond....
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....ips held that if the entries specifically include paper of all kinds, even if waste paper is not capable of being used for printing, writing or packing, it would still fall under entry 3 of Part P of the Second Schedule, so long as it is "paper". The Revenue also places reliance on the decision of the Andhra Pradesh High Court in the case of Ushodaya Enterprises Limited v. Commissioner of Commercial Taxes, A.P., Hyderabad [1998] 111 STC 711 (AP) [FB]. In this case, it was held that old and discarded newspaper when sold which were not used for reading purposes, but for packing and other purposes, cannot still be regarded as "newspapers" within the meaning of entry 54 of List II of the Seventh Schedule to the Constitution so as to claim exemption from taxation. According to the Revenue, when old newspapers are sold by weight, they lose the characteristic of a newspaper as it would not be used for the purpose of reading and will be used for other purpose, therefore, there cannot be any exemption from payment of sales tax on the turnover of the old newspapers or waste papers. The learned counsel for the Revenue also refers to the decision in the case of Sait Rikhaji Furtarnal v. Sta....
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....s they are the judicial precedents of the highest court of the land. They are binding on all the courts throughout India. Similarly the decisions of the every High Court being judicial precedents are binding on all courts situated in the territory over which the High Court exercises jurisdiction. Those decisions also carry persuasive value before courts which are not situated within its territory. The decisions of the Supreme Court and of the High Courts are almost as important as statutes, rules and regulations passed by the competent Legislatures and other bodies since they affect the public generally. It is well-known that the decisions of the Superior Courts while they settle the disputes between the parties to the proceedings in which they are given they are the sources of law insofar as all others are concerned. As soon as a decision is rendered the members of the public would be interested in knowing it. At any rate lawyers and others connected with courts and judicial proceedings who constitute a substantial section of the public are interested in knowing the contents and the effect of the decisions. The first respondent-All India Reporter Limited, and other publishers of l....
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....e it a newspaper, the publication of the recent judgments itself is sufficient to make a law report a newspaper which may after sometime cease to be a newspaper and become a book of reference." The contention of the assessees in these matters is to the effect that the courts have long back given up the use of theory of classification of goods with reference to the entries in the Second Schedule to the Act, therefore, disposal of old or new, the goods if sold as newspapers, there has to be exemption provided in entry 54 of List II. According to them, the decision in Sait Rikhaji Furtarnal's case [1992] 85 STC 1 (SC) being the latest judgment, of the apex court which has referred to a Larger Bench decision of the apex court, i.e., All India Reporter Karamchari Sangh v. All India Reporter Limited [1988] 70 STC 349 (SC); [1988] Supp SCC 472, the earlier decisions of the apex court pertaining to The Indian Express case [1987] 67 STC 474 (SC) and The Hindu' case [1987] 67 STC 477 (SC) cannot be relied upon as both the Benches of the apex court consist of equal number of judges and the later judgment should be followed by the High Courts and other courts. As against this, the le....
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...., it is stated: 'A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force.' 16. In State of U.P. v. Synthetics and Chemicals Ltd. [1992] 87 STC 289 (SC); [1991] 4 SCC 139, this court observed (SCC, pages 162 and 163, para 40): '"Incuria" literally means "carelessness". In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law" is avoided and ignored if it is rendered, "in ignoratium of a statute or other binding authority". (Young v. Bristol Aeroplane Co. Ltd. [1944] 2 All ER 293 CA; [1944] 1 KB 718). Same has been accepted, approved and adopted by this court while interpreting article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.' 17. In G....
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....he decision of the Larger Bench, whether it is earlier or later in point of time, should be followed by High Courts and other courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other courts.' Answered accordingly." In the case of C.N. Rudramurthy [1998] ILR Kar 3371, the apex court held that the mandate of article 141 is not based on any precedents but is an imprimatur to all courts that the law declared by the Supreme Court is binding on them. It is a matter of judicial discipline that when Supreme Court declares as to what the law on the matter is, the same shall be binding on all courts within the territory of India. On perusal of the above judgments, though in Sait Rikhaji Furtarnal's case [1992] 85 STC 1 (SC) they referred to All India Reporter Karamchari Sangh case [1988] 70 STC 349 (SC); [1988] Supp SCC 472, stating that a law journal was held to be a newspaper though it does not carry news of contemporary period but the reading of All India Reporter Karamchari Sangh's case [1988] 70 STC 349 (SC); [1988] Supp SCC 472, it is not said so in many words.....
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....spapers though they do not report contemporary news. Here doctrine of sub silentio comes into play. Even on facts, the material placed before us would go to show that the assessees in question are dealing with old newspapers and it is not their case that they are selling these old newspapers to the customers for the purpose of reading the news. The fact that they are dealing in old newspapers and waste paper business, definitely would indicate that they would be selling the newspaper for a purpose of other than the reading of news. It could be for packing, etc. In view of the above discussion and reasoning, we are of the opinion, the questions of law raised have to be answered in favour of the Revenue. Accordingly, the appeal in STA No. 3 of 2009, is dismissed and the revision in STRP No. 36 of 2007 and STRP No. 39 of 2008 are allowed. Per Mrs. B.V. Nagarathna, J. I have had the benefit of going through the judgment of her Ladyship, honourable Mrs. Manjula Chellur, J., in the aforesaid cases and while concurring with the decision, I wish to add a few words of my own. The common questions raised in these cases are as follows: (i) Whether old newspaper when sold as such, would ....
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....s the turnover of newspaper and not the turnover of old newspaper or waste paper. In support of their contention that the later decision of the Supreme Court has to be followed as opposed to an earlier decision on the very same point, though both the decisions are of co-equal Bench strength, they have relied upon the decision in the case of C.N. Rudramurthy [1998] ILR Kar 3371, wherein the binding nature of judgments of the Supreme Court under article 141 of the Constitution, all courts in India has been explained and the same is applicable to the present case. They have also relied upon another decision of a five-Judge Bench this court in the case of Govindanaik G. Kalaghatigi v. West Patent Press Company Limited AIR 1980 Kar 92 [FB], to contend that if two decisions of the Supreme Court on a question of law cannot be reconciled and if both the Benches of the Supreme Court consist of equal number of judges, the later of the two decisions should be followed by High Courts and other courts. Per contra, learned Government Advocate while reiterating the stand of the Revenue has contended that in the case of The Indian Express (P.) Ltd. [1987] 67 STC 474 (SC), it has been categoricall....
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....papers which would convey "news" or a report of recent events and which is published daily or on a regular basis. It is only paper which has the qualities of a "newspaper" which can claim exemption from sales tax. Therefore, newspaper which are old and have lost the character of conveying "news" to its readers cannot be held to be "newspaper" within the meaning of the aforesaid entries. The case of The Indian Express (P.) Ltd. [1987] 67 STC 474 (SC), is the earlier decision wherein copies of the newspaper which remained unsold were disposed of in the market by weight as waste paper and the appellant-dealer claimed that it was not carrying on business in selling old newspaper and therefore, could not be assessed to tax on such turnover in the assessment proceedings. However, tax on the turnover of the unsold newspaper was imposed and ultimately, the matter was carried up to the High Court of Madras which held that the selling of unsold newspaper as waste paper could be regarded as an ancillary business connected with the main business of printing and publishing newspaper and therefore, sales tax was leviable. Before the Supreme Court it was contended that the surplus copies of the ....
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....n of the law reports are entitled to the benefits as the employees of any other newspaper establishment under the aforesaid Act. After analysing the definition clause and other provisions of the said Act, it was held that the law reports which published the decisions of the Supreme Court and various High Courts carry news as they give the latest laws prevailing on the country or any question decided in the decisions reported in the said reports in which the public have an interest and it possesses the character of "news" as they are received by the subscribers though the decisions contained in the reports may ceases to be items of news after sometime. After analysing various features of law reports, it was held that having regard to the beneficial piece of legislation regarding conditions of service of the employees of the newspaper establishment, a construction of the provisions which would advance to object of the Act in favour of the employees for whose benefit the Act has been legislated to be made and it is in the aforesaid premise, it was held that the employees engaged in the production and publication of the law reports were and entitled to the benefits conferred upon the e....
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....ow such decision and follow the earlier decision which is backed by reasoning-whether it is acceptable to the High Court or not, and which is free from any such apparent flaw. We are unable to persuade ourselves to subscribe to the view that the later decision should be automatically followed despite the fact that it rests on a conclusion based on an erroneous impression that an earlier decision took a particular view which in fact it has not taken. By doing so, we are neither questioning the hierarchical superiority of the Supreme Court nor the higher wisdom of the honourable Judges of the Supreme Court. We are preferring one decision to the other-both rendered by Division Benches, for obvious reasons so as to avoid an incongruity leading to travesty of justice." On support of the aforesaid view reliance was placed on decisions of the Supreme Court in the cases of B. Shama Rao v. Union Territory of Pondicherry [1967] 20 STC 215 (SC), Municipal Corporation of Delhi v. Gurnam Kaur AIR 1989 SC 38, State of U.P. v. Synthetics and Chemicals Ltd. [1992] 87 STC 289 (SC); [1991] 4 SCC 139. On the strength of the aforesaid decisions, the High Court of Andhra Pradesh declined to follow the....