9911796707
TMI Blog1982 (10) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... ores, Himayatnagar, Hyderabad, and has obtained a licence under the Andhra Pradesh Indian Liquor (Storage in Bond) Rules, 1969, framed under the A.P. Excise Act, 1968. It is the case of the petitioner that under the contract for sale of goods with M/s. Hyderabad Beer and Wine Stores, the petitioner agreed to sell liquor on condition that the said Stores pays the excise duty to the excise authorities directly and produces the chalan. On the production of the chalan, the goods are to be released from the bonded warehouse in terms of the A.P. Indian Liquor (Storage in Bond) Rules, 1969. On the turnovers for the months of May, June and July, 1982, the petitioner-firm paid sales tax at 55.55 per cent of tax as detailed below: May, 1982 Rs. 71,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act at 25 paise in the rupee and added the surcharge also payable thereon. Mr. S. Krishna, learned counsel for the petitioner, relying upon the decision of the Supreme Court in McDowell & Co. v. Commercial Tax Officer [1977] 39 STC 151 (SC); A.I.R. 1977 SC 1459 which was a case arising from the State of Andhra Pradesh, contended that the excise duty payable for the removal of the liquor from the bonded warehouse was paid by the purchaser, in this case by M/s. Hyderabad Beer and Wine Stores, and not by the petitioner-firm. That amount having been paid directly by the buyer into the Government treasury never came to the tills of the petitioner-firm and as such it could not be included in the taxable turnover. The Supreme Court found in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "...The real and pivotal question that requires to be determined is whether the excise duty or the countervailing duty, as the case may be, paid directly to the excise authorities of the State or deposited directly in the State exchequer in respect of the Indian liquor by the buyers thereof before removing it from any of the aforesaid distilleries or the warehouse can be said to form part of the taxable turnover of the appellants, as according to section 5 of the Act, which is the charging section, sales tax is required to be paid by the appellants on their turnover of the year......". Having set out the position thus, the court proceeded to observe: "Bearing in mind the principle set out in A.V. Fernandez's case [1957] 8 STC 561 (SC); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limits of the district in which the distillery is situated to a person holding a permit signed by the Excise Superintendent of the district of destination or an officer of that district authorised in this behalf. (b) a person holding a permit signed by the officer of any other State referred to in clause (a) above for the export of such spirit from the State of Andhra Pradesh into that State. (c) a person holding a permit signed by an officer duly authorised in that behalf for export of such spirit to an Union Territory. (d) the licensee may act as an agent in removing spirit for any licensed vendor including any wholesale agency licensed in the name of a distiller who, to enable the licensee to obtain a distillery pass, furnishes him wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the excise duty. The amount was never collected by the petitioner and deposited into the Government treasury under the chalan. That, however, in our opinion, does not make any difference. In the eyes of law it is the petitioner that will be deemed to have deposited the amount. It may have collected the amount from the prospective buyer or raised a loan or paid it from its own funds. In view of the amended rules referred to above, the amount of excise duty deposited for the liquor sold by the petitioner-firm to the buyer, in this case M/s. Hyderabad Beer and Wine Stores, would be deemed to have been deposited by the petitioner-firm. The amount collected by it towards the sale of liquor to the said Stores would be the sale price and that wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na, learned counsel for the petitioner, that in fact the bills do not show that the petitioner, has collected the amount of excise duty from the buyer of the goods and as such sales tax is liable to be paid under item 26(a) and not under item 26(b) of the First Schedule. If, on a true appraisal of the nature of the transaction, the petitioner is found to have paid the excise duty and it forms the taxable turnover, then undoubtedly item 26(b) applies to the facts of this case and not item 26(a). We have already held above that the excise duty is part of the consideration from the sale of the liquor in favour of M/s. Hyderabad Beer and Wine Stores by the petitioner and therefore the taxable turnover must include the excise duty component even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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