CENTRAL WINES Vs. GOVT OF A P

JUDGEMENT

(1.) THE constitutional validity of explanations (a) and (b) to the Sixth Schedule of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as "the APGST Act"), introduced by section 15 of the A. P. Act 25 of 1988 with effect from July 8, 1983, is under challenge in this batch of writ petitions filed by the dealers in liquor. A. P. Act 25 of 1988 came into force from September 6, 1988. In some of the writ petitions, the orders passed by the Joint Commissioner of Commercial Taxes (Legal) revising the order of the Appellate Deputy Commissioner relating to assessment year 1983-84 as a sequel to A. P. Act 25 of 1988 have also been assailed.

(2.) THE undisputed facts are that the petitioners held at the relevant point of time two licences under the A. P. Excise Act, 1968, read with A. P. Foreign Liquor and Indian Liquor Rules, 1970 - one was wholesale licence known as FL 15 licence and the other was retail licence known as FL 24 licence. The wholesale licence-holder was authorised to import liquor and beer from outside the State on which the licensee pays the prescribed countervailing duty. The holder of licence in form FL 15 is permitted to sell liquor in quantities of not less than 9 litres in sealed or capsuled bottles at any time and in any single transaction to licensees holding the licences in form FL 24 (retail licence), FL 17 (bar licence), etc. He is not permitted to carry on retail sale or allow consumption of liquor in the licensed premises (vide rule 23 of the A. P. Foreign Liquor and Indian Liquor Rules, 1970 ). The retail licence holder in form FL 24 is permitted to sell liquor obtained only from the wholesale licensees. Prior to July 8, 1983, beer and liquor were exigible to tax under items 25 and 26 of the A. P. General Sales Tax Act at the point of first sale in the State. By A. P. Ordinance 19 of 1983, items 25 and 26 were removed from the First Schedule. By the said Ordinance, the taxation of liquor and country liquor (which includes beer as per the definition) was dealt with by the newly introduced provision, viz. , section 5 (2) (d) read with the Sixth Schedule to the Act. Section 5 (2) (d) lays down that in the case of the goods mentioned in the Sixth Schedule, tax under the APGST Act shall be levied at the rates and at the points specified as applicable thereto in the Sixth Schedule. Sub-section (2) of section 5 was in force up to March 29, 1989, on which date the said sub-section was merged into sub-section (1) which is the charging provision for all the goods mentioned in the Schedule. The Sixth Schedule as introduced by A. P. Ordinance 19 of 1983 together with the explanations thereto is extracted hereunder :

(3.) THE next development in the legislative history which is to be mentioned in G. O. Ms. No. 100 dated February 5, 1988. This G. O. was again issued by the Government in exercise of the Powers conferred by sub-section (1) of section 40 of the APGST Act. The reason for issuing this G. O. invoking once again the power under section 40 (1) of the APGST Act is to provide for continuity of levy and collection of tax on the commodities concerned, in terms of the amendments brought about by G. O. Ms. No. 376, Revenue (CT) Dept. dated April 25, 1987 and certain other G. Os. amending the Schedules. It appears, a Bill, APGST (Fourth Amendment) Bill, 1987 (L. A. Bill 46 of 1987) incorporating the amendments made by G. O. Ms. No. 376, etc. , was introduced in the Legislative Assembly on August 10, 1987, but it was not passed by the Legislature and hence it did not become the Act. As a result of this situation, the earlier notification issued under section 40 (1) (G. O. Ms. No. 376) and the Bill introduced on August 10, 1987, ceased to have effect by virtue of sub-section (2) of section 40 and the provisos thereto. Hence G. O. Ms. No. 100 was issued to maintain continuity in levy. The said G. O. did not bring about any material change vis-a-vis the Sixth Schedule to the APGST Act. The Schedule as amended by G. O. Ms. No. 376 therefore held the field even after the issuance of G. O. Ms. No. 100 dated February 5, 1988.