DEPUTY COMMISSIONER OF SALES TAX LAW DEPUTY COMMISSIONER OF SALES TAX LAW Vs. N KANNAN NAIR:T ANANDAN

JUDGEMENT

(1.) These are petitions for leave to appeal under Article 136 of the Constitution from the decision of the High Court of Kerala. The revenue is the petitioner before the High Court. The respondent is the assessee. The respondent is a P. W. D. contractor. He had undertaken certain contract works on behalf of the Public Works Department. He had executed agreements with the P. W. D. for repair of roads. The question involved is, whether the materials used by the assessee for the said purpose can be taxed under purchase tax under Section 5A of the Kerala General Sales Tax Act, 1963 (hereinafter called 'the Act'). The relevant provisions of Section 5A(1), (a),(b),(c), (2) and (3) of the Act are as follows :

(2.) The assessee was assessed on the purchase turnover of sand, bricks, etc. which were used for the execution of his work. The assessment was upheld by the Appellate Assistant Commissioner. In the second appeal preferred by the assessee, the Tribunal found that the assessee was a P. W. D. Contractor. He had obtained an amount of Rs. 1,01,372/-as per bills from the Executive Engineer (Roads and Buildings). According to the assessing officer an amount of Rs. 27684.13 was the purchase value of articles used by the assessee for the execution of these contracts and so the assessing officer had assessed this turnover to tax under section 5A of the Act. The Tribunal found that it was necessary under the said Section 5A of the Act to have consumption of the commodity in the manufacture of another commodity, the goods purchased should be consumed, the consumption should be in the process of manufacture and the result must be the manufacture of other goods. Therefore, according to the Tribunal, when a P. W. D. Contractor was using some articles for constructing a Sea Wall or repairing a public road, there was consumption of a commodity for the manufacture of another commodity. (sic). This conclusion logically follows from the observations and ratio of this Court in Dy. Commr., Sales Tax (Law) Board of Revenue (Taxes) Ernakulam v. Pio Food Packers (1980) 3 SCR 1271 : (AIR 1980 SC 1227), where Pathak, J. as the learned Chief Justice then was held that when pineapple fruit is processed into pineapple slices for the purpose of being sold in sealed cans, there is no consumption of the original pineapple fruit for the purpose of manufacture within the meaning of section 5A(1)(a) of the Kerala General Sales Tax Act, 1963. He further observed at Pp. 1276 and 1277 of SCR : (at pp. 1279, 1230 of AIR) of the report as follows :

(3.) The Tribunal accepted the assessee's contentions and allowed the appeal. The High Court upheld the decision of the Tribunal and rejected the revision. Hence this petition for leave to appeal. We are unable to see any ground for interference. The position is clear from the decision of this Court in Pio Food Packers (AIR 1980 SC 1227) (supra). It was contended before us that if no manufacturing process was involved, the case would fall within the scope of Section 5-A(1)(a) of the Act because the statutory provisions spoke not only of goods consumed in the manufacture of other goods for sale but also goods 'consumed otherwise'.