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2015 (7) TMI 1072 - ANDHRA PRADESH HIGH COURT

2015 (7) TMI 1072 - ANDHRA PRADESH HIGH COURT - [2015] 85 VST 232 (T&AP) - Validity of order of Commissioner - Violation of principles of natural justice - Denial of reasonable opportunity of being heard - Appellant contended that the two days time granted to them from February 20, 2002 to February 22, 2002 was extremely short, and they were thereby denied the opportunity to prepare their case - Held that:- the fact remains that the appellant was granted two adjournments firstly for a fortnight .....

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appellant thereafter, the Commissioner passed the revision order on February 26, 2002. The appellant was granted a reasonable opportunity of being heard and their contention, that the order of the Commissioner dated February 26, 2002 is in violation of the principles of natural justice, does not merit acceptance.

Is the Commissioner of Commercial Taxes barred from exercising his powers of revision - Section 20(1) of the APGST Act - Appellant contended that as the APGST Act did not pr .....

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t, the submission that the Commissioner, Commercial Taxes, lacks jurisdiction to revise the order of the assessing authority, when it has been subjected to revision by the Deputy Commissioner albeit on a different ground, is not tenable.

Validity of leviability of tax - Packing material i.e. HDPE bags and its contents taxed at the same rate - Appellant contended that the sale of cement was not dependent on the HDPE bags, as it could be sold loose or in a gunny bag or in a paper bag an .....

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has considerable force, the fact remains that, even if this finding of the Commissioner is ignored, his finding that there was an integrated sale of cement and HDPE bags, and the parties never intended to either sell or buy HDPE bags independent of its contents, i.e., cement, is based on an elaborate analysis of the material on record, and the prevalent practice in the cement industry.

In their reply to the show-cause notice, issued by the Commissioner proposing to subject the sale .....

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separately. Therefore, the conclusion of Commissioner, Commercial Taxes, has been accepted that there was no intention on the part of the appellant to sell, or on the part of the consignee to buy, the HDPE bags; and these bags were used by the appellant as a convenient and cheap mode of transport and the appellant intended to sell HDPE bags only as packing material for cement, and not independent thereof.

Entitlement of concessional rate of tax on production of G forms - Held that:- .....

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ant : S. Dwarakanath For the Respondent : J. Anil Kumar, Special Standing Counsel for Commercial Taxes JUDGMENT This special appeal is preferred, under section 23(1) of the APGST Act, by the appellant-dealer aggrieved by the order of the Commissioner of Commercial Taxes dated February 26, 2002 revising the order of the Deputy Commissioner (CT), Hyderabad dated January 17, 1999, and the order of the Commercial Tax Officer, Mancherial dated March 20, 1998. Facts, to the extent necessary, are that .....

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ssessment order was revised by the Deputy Commissioner (CT), Hyderabad, on January 7, 1999 levying tax on the self consumption of cement and steel, subjecting them to tax at four per cent. The Deputy Commissioner (CT), however, did not revise the order of the Commercial Tax Officer granting the appellant exemption on the turnover relating to the sale of packing material, i.e., HDPE bags. After the Deputy Commissioner (CT) passed the revision order dated January 7, 1999, a revised assessment orde .....

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rs vested in him under section 20(1) of the APGST Act, and issued a show cause notice to the appellant proposing to assess the turnover of HDPE/gunny bags to tax at 13.80 per cent. The show-cause notice dated November 30, 2001 records the tentative opinion of the Commissioner that the appellant had sold cement packed either in gunny bags or HDPE bags; cement was a product which was not sold naked or in a loose manner in the market; the price of cement as understood by the consumer, and for which .....

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or express, between the seller and buyer for sale of the HDPE bag independent of the sale of cement; and these facts showed that the transaction was a composite and integrated transaction of sale of cement and the HDPE bag. A copy of show-cause notice was served on the appellant on December 5, 2001. In their reply submitted thereto on December 26, 2001, the appellant informed the Commissioner that the initial time of fifteen days, allowed by him for submitting their reply, was insufficient havin .....

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t to submit their objections; without prejudice to their request, they were submitting their preliminary objections on the legal issues; they reserved their right to elaborate, on further factual details, by the next date of hearing; the issue of exemption of second sales of HDPE bags was the subject-matter of the assessment order dated March 28, 1998; this issue did not arise in the order of the Deputy Commissioner; purporting to revise the order of the Deputy Commissioner, the Commissioner of .....

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as not tenable; they had effected sales of cement at different rates during the year (a) at four per cent. against form G; (b) at the regular rate where the customers were not eligible; the relevant break up of the turnover was being compiled from their accounts, and they would file the break-up by the date of personal hearing; in any event, in view of G. O. Ms. No. 374 dated April 25, 1987, the tax paid on packing material was eligible for setoff from the tax payable on cement; and the set-off .....

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ly packed cement, manufactured by it, in HDPE bags; hitherto cement companies used to pack cement in gunny bags; but, with the advent of plastics into the market, all the cement companies, including the assessee-company, had shifted from gunny bags to HDPE bags, as HDPE bags had a distinct advantage over gunny bags as packing material for cement; HDPE bags were light in weight; they were non-porous when compared to gunny bags; cement, packed in HDPE bags, retain its quality much longer; cement i .....

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E bags as soon as it is produced, and dispatch them to their distributors both within and outside the State; these distributors purchase cement from the assessee-company, and sell it to their customers; they receive cement, as cement in bags, from the assessee-company, and sell it to the ultimate customers as cement in bags only; from the point of manufacture till the ultimate use by the customer, cement always exists in a packed condition, and is sold in that condition only; though they had art .....

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ng whether the distributor has split the value of ₹ 120 or ₹ 150 into two separate components; for him the splitting of the value into different components is only a formatting of the bill in which he is not interested; in the instant case, there is no splitting in the value of the goods, and it is an integrated sale of cement only; there is no evidence to show that the dealers depicted the price of cement and HDPE bags separately; it must be construed that such depiction, by the man .....

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lged in an inconvenient artificial bifurcation of the invoice; in the light of the judgment of the Supreme Court in Raj Sheel v. State of Andhra Pradesh [1989] 74 STC 379 (SC), it was clear that there is no separate sale of packing material; except depicting the value of HDPE bags separately in the A2 returns, the assessee did not produce any other evidence to prove its case; where the sale of packing material is integral to the sale of its contents, splitting the sale value in the A2 returns in .....

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ot place on record any periodical price charts or quotations prepared and sent to its customers showing the value of cement and packing material separately; it could not, therefore, be said that the customers consciously purchased the packing material in addition to the purchase of cement; both the parties involved did not intend to sell and buy the packing material separately; the depiction of the value of HDPE bags separately by the assessee-company was a one sided act, and did not imply any i .....

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d that packing material charges cannot be deducted even if they are charged separately under the Act; in the present case, customers negotiate and purchase cement packed in bags from the assessee-company at a particular price per bag; the packing material, i.e., HDPE bags, being the primary packing material, reach the ultimate consumer; the transfer of property, in the HDPE bags, is integral and inseparable from the sale of cement; the total amount collected by the assessee in the invoice repres .....

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Commissioner. The points, which arise for consideration in this appeal, are: (1) Is the order of the Commissioner, Commercial Taxes dated February 26, 2002 in violation of principles of natural justice, and was the appellant denied a reasonable opportunity of being heard ? (2) Is the Commissioner of Commercial Taxes barred from exercising his powers of revision, under section 20(1) of the APGST Act, in cases where the order of the assessing authority has been subjected to revision by the Deputy .....

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tax on cement varied during the assessment year 1994-95, tax could not have been uniformly levied through out the year at the maximum rate of 13.8 per cent. ? Point No: 1 Sri S. Dwarakanath, learned counsel for the appellant, would submit that the order of the Commissioner is in violation of principles of natural justice; the sales invoices, filed along with the special appeal before this court, show that packing material is separately charged; it is only because they were not afforded a reasona .....

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t; the appellant had, by his letter dated December 17, 2001, requested one month time; they had, by their letter dated December 26, 2001, filed preliminary objections, and had sought further one month time; the Commissioner had fixed the date of hearing as January 11, 2002; the appellant requested time as their counsel was indisposed; they were intimated by phone on February 20, 2002 that the hearing would be held on February 22, 2002; they requested time on February 22, 2002, as they were held .....

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HDPE bags. The appellant was granted 15 days time to submit their objections thereto. By their letter dated December 17, 2001, the appellant sought one (1) month time to file their objections. The one month time, sought for by the appellant, expired on January 17, 2002. The respondent, however, posted the matter to December 27, 2001. While submitting their preliminary objections the appellant, by their letter dated December 26, 2001, requested one more month time to present their case. The one .....

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and they were thereby denied the opportunity to prepare their case, the fact remains that the appellant was granted two adjournments firstly for a fortnight from December 27, 2001 to January 11, 2002; and, thereafter, for more than a month from January 11, 2002 to February 22, 2002. As the order of the Commercial Tax Officer, which was sought to be revised, was passed on March 20, 1998, the four year period of limitation, prescribed under section 20(3) of the APGST Act, was to expire in March, .....

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cordingly. Point No. 2: Sri S. Dwarakanath, learned counsel for the appellant, made a feeble attempt to contend that, as the APGST Act did not provide for a second revision, the Commissioner of Commercial Taxes could not again revise the order of the assessing authority as the said order had already been subjected to revision by the Deputy Commissioner. Learned counsel would, however, fairly state that, in view of the judgment of the Division bench in Agarwal Industries Limited v. Commissioner o .....

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by any authority, officer or person subordinate to him, under the provisions of the APGST Act, including section 20(2); and, if such order or proceeding recorded was prejudicial to the interests of Revenue, to make such enquiry, or cause such enquiry to be made, and, subject to the provisions of the APGST Act, to initiate proceedings to revise, modify or set aside such order or proceeding, and to pass such order in reference thereto as he thought fit. Section 20(2) stipulated that the powers of .....

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thin such period not exceeding four years from the date on which the order was served on the dealer. While section 20(2) of the APGST Act enabled officers, subordinate to the Commissioner, to revise the orders passed by their subordinates, section 20(1) enabled the Commissioner to revise the orders passed by officers subordinate to him, including those under section 20(2) of the Act. Section 20(1) of the APGST Act was a special provision which conferred power on the Commissioner not only to revi .....

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ommissioner of Commercial Taxes [2015] 85 VST 218 (T & AP) (judgment in Special Appeal No. 19 of 2000 dated April 30, 2015), a Division Bench of this court held that the Commissioner could exercise the power of revision, vested in him under section 20(1) of the APGST Act, and revise an order passed, or proceeding recorded, by any authority, officer or person subordinate to him under the provisions of the APGST Act, including under section 20(2) thereof, within four years from the date of ser .....

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as been subjected to revision by the Deputy Commissioner albeit on a different ground, is not tenable. Point No. 2 is answered accordingly. Point No. 3: Sri S. Dwarakanath, learned counsel for the appellant, would contend that the reference to the A2 returns, in the order of the Commissioner, is without jurisdiction as it is not mentioned in the show-cause notice; the Commissioner erred in levying tax on HDPE bags at the rate on which tax is leviable on cement; HDPE bags are classified in item 1 .....

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rent types of containers, and not from a narrow angle; item 18 of the First Schedule was amended with effect from August 1, 1996, providing for dual rates of tax on the sale of cement; the Legislature had, itself, visualised that cement could be sold without involvement of packing material; it is only from April 1, 1995 that section 6C was amended to provide for levy of tax on containers on par with its contents, whether or not there was separate sale of packing material; from the amendment to s .....

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bsence of even a reference thereto, in the reply filed by the appellant to the show-cause notice, the Commissioner could not be faulted for not taking into consideration the alleged sales invoices; the Commissioner had rightly come to the conclusion that the sale of cement and HDPE bags is an integrated sale, and was liable to be taxed under section 6C of the APGST Act; and the order of the Commissioner does not necessitate interference. It is for the first time before this court that Sri S. Dwa .....

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atter of bargain and sale, or was only a mode of conveying the contents; this depended upon the nature of packing material, and the terms of agreement between the parties; HDPE bags are classified in item 188 of the First Schedule to the APGST Act; they are durable and reusable; they are of significant value, the cost being ₹ 5.50 ps. per bag during 1994-95; the sale of cement was not dependent on the HDPE bags, as it could be sold loose or in a gunny bag or in a paper bag; during 1994-95 .....

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re in the cement industry and different types of containers, and not from a narrow angle; without any enquiry from the stockists and the buyers, it cannot be surmised that there cannot be sale of cement without a container; the crucial aspect, that several types of containers exist in the cement market, cannot be overlooked; the transaction of sale of cement and the HDPE bag cannot be clubbed and integrated on the pretext that sale of cement without a bag cannot be visualised; the sale of loose .....

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lf, visualised that cement could be sold without involvement of packing material; it is only from April 1, 1995 that section 6C was amended; the sales tax authorities could not estimate the value of containers, and levy tax on the basis of its statutory classification, significant value and durability of the container, even though the contents are exempt, or are taxable at concessional rates; it is not correct to state that there is no express or implied agreement for sale of the bag; the guidel .....

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t even the appellant's case, in their reply to the show-cause notice issued by the Commissioner, that the invoices reflected the sale of HDPE bags, independent of the sale of its contents, i.e., cement. The Commissioner of Commercial Taxes cannot, therefore, be faulted for not referring to the sales invoices as the appellant neither made any reference thereto in the reply to the show-cause notice nor did they produce copies thereof before him. Even before us the appellant has not placed any .....

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turnover of ₹ 3,59,25,700, relating to the corresponding sale value of HDPE bags, from payment of tax on the ground that these HDPE bags, which were used for packing of cement, had already suffered tax within the State. In examining the question whether the appellant intended to sell, and their customers intended to buy, HDPE bags independent of the sale of cement, certain tests laid down by the Supreme Court must be taken note of. The fact that the packing is of insignificant value, in re .....

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sometimes even higher than that contained in it. In such cases the agreement to pay an extra price for the container may be more readily implied. (Hyderabad Deccan Cigarette Factory v. State of Andhra Pradesh [1966] 17 STC 624 (SC)), Commissioner of Taxes, Assam v. Prabhat Marketing Co. Ltd. [1967] 19 STC 84 (SC)). In cases where the packing material is an independent commodity, and the packing material as well as the contents are sold independently, the packing material is liable to be taxed o .....

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or convenience of transport, and the quantity of the goods as such is not dependent on packing; (5) the mere fact that the consideration for the packing is merged with the consideration for the product would not make the sale of packing an integrated part of the sale of the product. (Raj Sheel [1989] 74 STC 379 (SC)). In determining whether the turnover, relating to sale of HDPE bags, is liable to tax the question to be asked is whether the parties, having regard to the circumstances of the case .....

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ced upon oral statements, accounts and other documents, personal enquiry and other relevant circumstances such as the nature and the purpose of the packing material used. (Hyderabad Deccan Cigarette Factory [1966] 17 STC 624 (SC) and Prabhat Marketing Co. Ltd. [1967] 19 STC 84 (SC)). Before us the appellant has furnished details of the packing material purchased by them, from different dealers, during the year 1994-95, as also sample invoices of the sale of cement to six dealers, i.e., Sri Sai T .....

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ment was sold in HDPE bags for ₹ 28,388, and the value of packing material was shown separately therein as ₹ 2,000. As 20 metric tonnes of cement was sold, the value of packing material recorded in the invoice is ₹ 2,000, i.e., 20 metric tonnes at ₹ 100 per metric tonne. It is evident that packing material was not sold independent of its contents and, though the value of packing material is separately shown in the invoice, its value is arrived at on the basis of the weigh .....

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ue of packing material is shown, in the invoice relating to the Tribal Welfare Department, as ₹ 115 per metric tonne; and, as 117 metric tonnes of cement were sold, the value of packing material is shown to be ₹ 13,455. The invoice raised, for the sale of cement to the A. P. Housing Board, shows the value of packing material as ₹ 115 per tonne; and, as 12 tonnes of cement was sold, the price of packing material is shown therein as ₹ 1,380. The invoice raised on Vishal Ind .....

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quantity of the cement sold, goes to show that there was an integrated sale of cement and HDPE bags; and neither the appellant nor the consignee intended to purchase HDPE bags independent of its contents, i.e., cement. The very fact that the price charged for HDPE bags is less than 10 per cent. of the value of its contents, i.e., cement, makes it clear that the value of packing material, when compared to the value of its contents, is insignificant. This would also imply that there was no intent .....

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and not in HDPE bags, the sale of cement to other customers is only in HDPE bags. A customer, who purchases cement in HDPE bags, intends only to purchase cement, and not the HDPE bags. It is evident, therefore, that there is no implied sale of HDPE bags independent of its contents, i.e, cement. After an elaborate analysis of the purposes for which the HDPE bags were used and its utility, the Commissioner has concluded that both the seller and the buyer did not intend to sell HDPE bags; and thei .....

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or buy HDPE bags independent of its contents, i.e., cement, is based on an elaborate analysis of the material on record, and the prevalent practice in the cement industry. The Commissioner, Commercial Taxes, has on the material on record, rightly contended that there was no intention on the part of the appellant to sell, or on the part of the consignee to buy, the HDPE bags; and these bags were used by the appellant as a convenient and cheap mode of transport. Section 6C of the APGST Act related .....

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icable to the sale, or as the case may be, purchase of goods themselves." Section 6C of the APGST Act, as it stood prior to April 1, 1995, envisaged a situation where it was the goods which were sold, and there was no actual sale of the packing material. The section provided, by legal fiction, that the packing material shall be deemed to have been sold along with the goods. In other words, although there was no sale of packing material, it was to be deemed that there was such a sale. In tha .....

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f several components, including the value of the packing material, nonetheless the price was the price of the goods. It was not open to anyone to say that the value of the different components, which had entered into the determination of the price of the goods, should be analysed and separated, in order that different rates of tax should be applied according to the character of the component (for example, packing material). What section 6C intended to lay down was that, even upon such an analysi .....

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he goods, could not be treated separately from the goods themselves; no account was, in fact, taken of the packing material when the transaction took place; and that, if such account must be taken, then the same rate must be applied to the packing material as is applicable to the goods themselves. (Raj Sheel [1989] 74 STC 379 (SC)). As neither the appellant who sold cement, nor their customers who bought it, intended to purchase HDPE bags independent of its contents, i.e., cement section 6C, as .....

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lue of the packing material, the point of levy would be the point of first sale in the State, and the rate of tax would be 16 per cent.; and entry 18(b) stipulated that where packing material and cement are sold separately, and the sale price of cement did not include the value of packing material, the point of levy would be at the point of first sale in the State and the rate of tax would be 20 per cent. The amendment to entry 18 to the First Schedule with effect from August 1, 1996 has no appl .....

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effect from August 1, 1996 only makes it explicit, what was implicit earlier, that in cases where packing material is sold along with its contents, the rate of tax applicable to the sale of packing material would be the rate of tax applicable to its contents. Section 6C of the APGST Act, as substituted by Act 22 of 1995 with effect from April 1, 1995, provided that, notwithstanding anything contained in sections 5, 5F, 6 and 6A of the APGST Act, the rate of tax on packing material, sold with the .....

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where there was an integrated sale of both the packing material and its contents, and the parties to the contract did not intend to sell packing material independent of its contents. The pre-amended section 6C was not attracted where packing material was sold independent of the sale of its contents. As is evident, from the material on record, both the appellant who sold cement, and the consignee who purchased it from the appellant, sold/purchased HDPE bags only because of the sale/purchase of it .....

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he old records, correspondence, circulars, and stockists agreements to demonstrate an express agreement of sale of the HDPE bags. Except to produce the few sales invoices, referred to hereinabove, the appellant has not produced the purchase orders or the price charts or the quotations, if any, prepared by them and sent to their customers showing the value of cement and packing material separately. We see no reason, therefore, to differ from the conclusion of the Commissioner that the appellant i .....

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dated April 25, 1987 is required to be given; and (iii) though the rate of tax on cement varied during the assessment year 1994-95, tax was levied throughout the year uniformly at the maximum rate of 13.8 per cent., did not consider the same in the order under appeal. Though the Commissioner, Commercial Taxes has, in the order under appeal, recorded the appellants alternative contentions, no finding is recorded, in the order, in respect thereto. It does appear that, during the year 1994-95, the .....

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of component parts. Under sub-section (1)(a) thereof, notwithstanding anything contained in the APGST Act, every dealer was required to pay tax at the rate of four per cent., or at the rates specified in section 5 in respect of goods other than declared goods, or under section 6 in respect of declared goods, whichever was lower and the turnover relating to such sale, when a dealer sold any goods to another dealer for use by the latter, would include component parts, sub-assembly parts, intermedi .....

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