Telangana High Court
M/S. Charminar Bottling Co. Pvt. Ltd. vs The State Of A.P, Rep By The Gp For C.T on 26 September, 2025
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
TAX REVISION CASES NOS.35, 37, 38 AND 39 OF 2004
COMMON ORDER:(per Hon'ble Sri Justice Narsing Rao Nandikonda) Since the parties and the issue involved in these Tax Revision cases are common, which were filed being aggrieved by the order passed by the learned Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad, in various appeals pertaining to different Assessment orders, all these cases to be heard together and decided by way of this common order.
2. These Tax Revision Cases are filed by the petitioner- assessee against the common order, dated 05.08.2002, in T.A.Nos.388, 387, 385, 384 of 2001 passed by the learned Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad, for the Assessment Years 1997-1998, 1996-1997, 1994-1995 and 1993-1994 under the Andhra Pradesh General Sales Tax Act, 1957 (for short, 'the Act, 1957').
3. Petitioner herein is engaged in the business of manufacturing of 'aerated water' and 'fruit juice' in the name of 'Pepsi' in the brand name of 'Slice.' Petitioner-company is a registered dealer on the rolls of the Commercial Tax Officer, 2 PSKJ & NNRJ Trevc_35_2004&batch Jubilee Hills Circle, Hyderabad. During the Assessment Years 1993 - 1998, the petitioner had affected sales of 'aerated waters' and 'fruit juice' to various distributors within and outside the State of Andhra Pradesh. The Assessing Authority granted exemption for a period of seven years on sale of 'fruit pulp' and 'fruit juice' sold in the brand name of 'slice' in view of the Final Eligibility Certificate issued by the competent authority in terms of G.O.Ms.No.108, Industries & Commerce (IP) Department, dated 20.05.1996.
4. The petitioner used to sell 'aerated water' in the bottles by investing huge amount. The bottles bear the brand name of the petitioner. The bottles were recycled and again used for filling up of 'aerated water' and 'soft drinks.' It is stated that the petitioner used to incur expenditure for transportation of empty bottles from various destinations and back to the factory premises for refilling. Petitioner also incurred expenditure for sorting and arranging the empty bottles for flavour-wise and back to the factory premises for refilling and it also incurs expenditure for cleaning and other work on the bottles so returned from the market by the distributors. According to the petitioner, these charges are post- 3
PSKJ & NNRJ Trevc_35_2004&batch sale expenditure incurred by the petitioner and the petitioner used to recover the said expenditure in the form of 'container charges' from the distributors in addition to the sale price of the aerated water/soft drink.
5. It is further case of the petitioner that in view of Certificate issued by the competent authority as per the G.O. the Assessing Authority cannot collect tax on 'container charges' but the Assessing Authority while passing final Assessment Order, levied tax towards 'container charges' under Section 5E of the APGST Act. It is further case of the petitioner that 'fruit juice' is eligible for 'tax holiday' and 'container charges' is in ineligible list of items and accordingly, the Assessing Authority passed order.
6. As against the order of the Assessing Authority as to levying of tax on the 'container charges' under Section 5E of the APGST Act, the petitioner preferred appeals before the Appellate Deputy Commissioner (CT), Punjagutta, who in turn after assessing the same held that the Assessing Authority is not correct in levying tax under Section 5E of the APGST Act. The Appellate Authority after examining the issue in detail, elaborately passed an order allowing the appeal and holding 4 PSKJ & NNRJ Trevc_35_2004&batch that the Assessing Authority was not correct in levying tax under Section 5E of the APGST Act in respect of the 'container charges' received by the petitioner from the distributors.
7. Against the said orders, the revenue has preferred a revision before the Additional Commissioner (Revisional Authority) wherein a show-cause notice was issued proposing to revise the order passed by the Appellate Authority as well as the order passed by the Assessing Authority. According to the Revisional Authority, placing reliance on the judgment of the Hon'ble Supreme Court in M/s.Sarvaraya Sugars Ltd. v. State of Andhra Pradesh the order passed by the Appellate Authority is erroneous on the ground that the 'container charges' form part of the sale price of the 'aerated water' and therefore, the authority stated that the tax is applicable only to the content in the bottle and hence, set aside the impugned order and remanded the proceedings to the assessing authority. Thereafter, the Joint Commissioner (legal) revised the orders of Commercial Tax Officer as well as Appellate Deputy Commissioner in exercise of his power under Section 20 (2) of the APGST Act and set aside the orders of both the lower authorities and brought the disputed turnover to tax at the rate 5 PSKJ & NNRJ Trevc_35_2004&batch applicable to soft drinks holiday that the disputed turnovers represent the value of soft drinks and nothing else.
8. It is further stated that the Joint Commissioner took up revision pursuant to the inspection of the office premises of the appellant by the Commercial Tax Officer on 20.07.1998 wherein he found that on verification of books of accounts, the assessee company has bifurcated the sale price in the sale invoice into two parts the order of assessment with regard to the disputed turnover of Rs.3,42,14,267/- in asmuch as the Assessing Authority is not justified in levying tax on this part of the disputed turnover treating the same as consideration received against transfer of right to use bottles and accordingly remanded the matter to the Assessing Authority with a direction to reassess the matter afresh to the extent keeping in view the directions held in the said order.
9. Further, the case of the petitioner is that, against the orders of the Appellate Authority, Review has been preferred before the Additional Commissioner, wherein a revised show cause notice was issued vide CCT's Ref.L.III(2)/1449/98-1, dated 13.12.2000 stating that in respect of 'container charges', taxes are collected in addition to the 6 PSKJ & NNRJ Trevc_35_2004&batch deposits collected on crates and bottles and requested the petitioner-company to file its written objections, if any, to the proposed revision, either in person or through its representative within 15 days from the date of receipt of a copy of said show cause notice. The Appellate Deputy Commissioner has further realized that collecting amount on 'container charges' are nothing but post-sale expenses incurred by the petitioner, which are received from the distributors and that as there is no transfer of property of goods to the customers and therefore, the Assessing Authority was further held that it was not correct for installment. Subsequently, the Additional Commissioner (Revisional Authority) also issued a show cause notice proposing to revise the order passed by the Appellate Authority as well as the order passed by the Assessing Authority on the ground that the order passed by the appellate Authority is erroneous that the container charges form part of the sale price of aerated water and therefore, it should be taxed at the rate applicable to the content. The petitioner has submitted a detailed reply to the said notice. But, the learned Revisional Authority did not consider the same and rejected. The Revisional Authority also did not consider the aspect raised by 7 PSKJ & NNRJ Trevc_35_2004&batch the petitioner with regard to the revision, which was barred by limitation as for the year 1993-1994.
10. Aggrieved by the Revisional order passed by the Additional Commissioner, the petitioner preferred an appeal before the learned Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad, under Section 20 (2) of the APGST Act. The learned Tribunal after considering the entire case, held that it is a post-sale expenditure incurred by the petitioner distributed in the form of container charges and aerated water and as it is non-taxable and cannot take as aerated water. But it is also further contended that the revisional authority reiterated the contentions of the petitioner that the sale price of aerated water is taxable and not the 'container charges' and the same cannot be taken as aerated water and in alternative the petitioner submitted that at best the petition is liable to be dismissed. However, the learned Tribunal confirmed the order and held that post-sale expenditure incurred by the petitioner, which was received from the distributers in the form of 'container charges' and the sale price of aerated waters is only taxable and the container charges cannot be taken as part of the aerated waters. In alternative, it 8 PSKJ & NNRJ Trevc_35_2004&batch is submitted that the container charges at best are liable to tax under Section 5E of the APGST Act and accordingly, the Tribunal has confirmed the order passed by the revisional authority and further held that it is barred by limitation, as the petitioner could not establish the date on which the Commercial Tax Officer order served. Learned Tribunal held that, it is a part of sale price of aerated water and the Joint Commissioner has erroneously stated that the company is found to have manufactured and sold soft drink bottles under the brand name of slice and this soft drink is not eligible for tax holiday as the same is neither fruit pulp or a fruit juice covered by the eligibility certificate issued to the petitioner.
11. Heard Sri Suri Babu, learned counsel appearing for the petitioner and Sri Swaroop Oorilla, learned Senior Standing Counsel appearing for the respondent.
12. Considering the rival submissions made by both the counsel, the following issues that arise for consideration in these tax revision cases are as follows:
1) Whether the industrial incentives that have been accorded by the Industries Department could be negatived by the Department?
2) Whether the Tribunal ignored the decision of the High Court produced before the revisional authority as also before the appellate Tribunal?
3) Can the revision be based on an inspection conducted by the inspecting authority after 9 PSKJ & NNRJ Trevc_35_2004&batch conclusion of the assessment proceedings as well as the appeal proceedings>
4) Whether the container charges part take the character of pre-sale expenditure or post sale expenditure?
5) Whether the container charges part take the character of turnover under Section 2 (5) of the APGST Act?
6) Whether the container charges part take the character of turnover under Section 2 (5) of the APGST Act?
13. The main contention of the petitioner-company was that the company was provided Industrial Incentive in the nature of sale tax holiday)/(exemption) for manufacturing fruit pulp and fruit juice vide final eligibility certificate No.20/2/7/0329/ID, dated 21.06.1997. It is valid from 06.05.1996 to 05.05.2003 i.e., for a period of seven years. It is stated that though the said exemption is in respect of fruit pulp and fruit justice, the contention of the petitioner is that the fruit juice is sold in the name of 'slice.' But, the same is disputed by the Revenue contending that it is not a 'fruit juice.' But, it is pointed out by the petitioner that the 'juice' sold by the petitioner does not come within definition of 'fruit juice' and it is only a 'soft drink', as such the question of exemption does not arise. The authority while granted exemption in respect of the same treating it as 'fruit juice' in view of eligibility certificate issued by the competent authority as it is eligible for 'Tax Holiday.' 10 PSKJ & NNRJ Trevc_35_2004&batch
14. He also further argued and contended that a show- cause notice, dated 02.06.1998 was issued by the respondents which would clearly show that the sale of diluted Mango Pulp in Bottles in Brand name 'SLICE' which is mentioned as 'MPF' and not as a 'soft drink'. It is also shows that the Inter State Sale of 'Mango Pulp and its raw material diluted with mango pulp.
15. He also further argued and contended that the revisional authority collected the material after conclusion of the assessment which is against the provisions of the APGST Act. In support of his contentions, he also placed reliance on the following judgments. Hindustan Coco Beverages Private Limited, Hyderabad v. State of Andhra Pradesh 1; Acqueous Victuals Pvt. Ltd. v. State of U.P. and others 2; Pepsico India Holdings Pvt. Ltd. v. Sangli Miraj Kupwad Municipal Corporation 3 and Prabha Enterprises v. Deputy Commercial Tax Officer, Kothapeta, Guntur and andother 4
16. Learned counsel for the Revenue argued and contended that though the respondent is admitting that the sale of 'slice' was exempted for payment of tax for the year 1 2013 SCC online AP 1 2 (1998) 5 Supreme Court Cases 474 3 (2011) 1 Mh.L.J 135 4 (1991) SCC Online AP 470 11 PSKJ & NNRJ Trevc_35_2004&batch 1996-1997 and not for the year 1997-1998 and for other years the Revenue has no dispute in respect of granting exemption. Basing on the final eligibility certificate, it is further argued and contented that the 'slice' is not a 'fruit juice' and it is a 'soft drink.'He further argued that the appellate Tribunal already appreciated each and every aspects. Further, for claiming tax holiday, the appellant relied upon the eligibility certificate issued by the Commissioner of Industries, dated 21.06.1997 and fixing up eligibility for sales tax exemption which is given as an industrial incentive as per the Industrial policy mentioned in G.O.Ms.No.108, Industries & Commerce (IP) Department, dated 20.05.1996. Further, column No.6 deals with names of products with capacities eligible for tax exemption. The commodities mentioned against column No.6 are 'fruit pulp' and 'fruit juice' and other else. G.O.Ms.No.108 shows list of goods mentioned in the Annexure to this G.O. which are eligible for giving the incentive under the scheme envisaged by the said G.O. Though the Commercial Tax Officer proposed levy of tax on the turnover in the pre-assessment notice describing it as relating to the sale of soft drinks after receiving objections from the dealer, the 'slice' which is a soft 12 PSKJ & NNRJ Trevc_35_2004&batch drink treated as 'mango pulp for 'Tax Holiday', but, the Joint Commissioner withdrew this exemption which is granted by the Commercial Tax Officer as covered by sales Tax Holiday holding that the sale of branded soft drink is not eligible for tax holiday, as it does not fall under 'fruit pulp' or 'fruit juice' as permitted in the certificate issued to the petitioner.
17. According to the counsel for petitioner, the Joint Commissioner i.e., the revisional authority cannot call for inspection report basing on which the revisional authority has passed the order. Though inspection report being supplied and that the said inspection was done after the assessment and it cannot go beyond the assessment order passed.
18. For the sake of appreciation the relevant provision reads as follows:
19. "Section 20 of the APGST Act reads as follows:
Section 20 Revision by (Commissioner of Commercial Taxes) and other prescribed authorities (1) The (Commissioner of Commercial Taxes) may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to it, under the provisions of this Act, including sub section (2) of this section and if such order or proceeding recorded is prejudicial to the interests of revenue, may make such enquiry, or cause such enquiry to be made and subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such order in reference thereto as it thinks fit.13
PSKJ & NNRJ Trevc_35_2004&batch (2) Powers of the nature referred to in sub section (1) may also be exercised by Additional Commissioner, or the joint Commissioner, Deputy Commissioner or Assistant Commissioner and the Commercial Tax Officer in the case of orders passed or proceedings recorded by authorities, officers or persons subordinate to them.
(2-A) The power under sub section (1) or sub section (2) shall not be exercised by the authority specified therein in respect of any issue or question which is the subject matter of an appeal before, or which was decided on appeal by, the Appellate Tribunal under Section 21.
(3) In relation to an order of assessment passed under this Act, the powers conferred by sub sections (1) and (2) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer, as may be prescribed.
(4) No order shall be passed under sub section (1) or sub section (2) enhancing any assessment unless an opportunity has been given to the assessee to show cause against the proposed enhancement.
(5) Where an order passed under this section has been set aside by any Court or other competent authority under this Act for any reason) the period between the date of such order and the date on which it has been so set aside shall be excluded in computing the period of four years specified in sub section (3) for the purpose of making a fresh revision, if any, under this section. (6) Where any proceeding under this section has been deferred on account of any stay order granted by the Special Appellate Tribunal in any case, or by reason of the fact that an appeal or other proceeding is pending before the Special Appellate Tribunal or the Supreme Court involving a question of law having a direct bearing on the order or proceeding in question, the period during which the stay order was in force or such appeal or proceeding was pending shall be excluded in computing the period of four years specified in this section for the purposes of exercising the power under this Section."
20. Admittedly, the petitioner is having an industrial incentive accorded by the Industrial Department vide G.O.MS.No.108, dated 20.05.1996, wherein the petitioner was being provided exemption for the products of 'fruit pulp' and 'fruit juice.' The said eligibility was for a period of seven years 14 PSKJ & NNRJ Trevc_35_2004&batch from 06.07.1996 to 05.05.2003. The main contention of the respondent-Revenue is that the content in the bottle is not the 'fruit pulp,' which the petitioners are dealing with does not come within the meaning of a 'fruit pulp' or 'fruit juice', it is only a 'soft drink.' Whereas, on perusal of the Assessment Order passed by the Commercial Tax Officer, it shows that as per purchase account and the sales account, it clearly shows that there was an interstate local purchase of 'Mango Pulp'. Further, there are sales in the brand name of 'Slice' in respect of transfer of the aerated water the 'Mango Pulp' was also included in that. Even in Inter State Sale of Mango Pulp includes Inter State Sale of Raw Materials, branch transfer of diluted Mango Pulp. Another ground which is raised by the petitioner that when once the State Level Committee has provided incentive which is not open to the Commercial Tax Officer to question, the said certificate and contended that the same is not applicable.
21. In support of his contentions he placed reliance on the Judgment of High Court of Andhra Pradesh in M/s. Prabha Enterprises v. Deputy Commercial 5 5 1991 SCC online AP 470 15 PSKJ & NNRJ Trevc_35_2004&batch "G.O. Ms. No. 498, dated October 16, 1989 specifically provides in paragraph 7 that the State Level Committee or the District Level Committee, as the case may be, shall scrutinise the claim applications filed by the applicants claiming the incentives under the Government Order. Admittedly, the petitioner had not submitted any application so far, under the Government Order to either the State Level Committee or the District Level Committee. Whether the petitioner is entitled to the incentive, including the deferment/tax holiday on sales tax, or not under the said Government Order can be considered and decided only by the Committee referred to in the Government Order. Therefore, the proper course open to the petitioner is to approach either the District Level Committee, or the State Level Committee, as the case may be, and obtain a certificate from it regarding the eligibility of the petitioner for claiming the incentive, including deferment/tax holiday, provided under the Government Order. The petitioner shall submit the application, if not already submitted, either to the State Level Committee or the District Level Committee, as the case may be, having regard to the capital invested, within four weeks from today. The concerned Committee shall consider the application and pass appropriate orders thereon in accordance with G.O. Ms. No. 498, Industries and Commerce (IA) Department, dated October 16, 1989, within two months from the date of receipt of the application without reference to the notice Cl No. 27649/90-91, dated October 3, 1990 of the Deputy Commercial Tax Officer, Kothapeta, Guntur."
22. The other ground is levy of tax on bottles deposits and collection of 'container charges' from the customers, which are not liable to be taxed under APGST Act in all five appeals. It is contended that some amount was collected by mentioning separately to the sale turnover sale, mentioned in the sale invoices. Whereas the Commercial Tax Officer while finalizing 16 PSKJ & NNRJ Trevc_35_2004&batch the Assessment has held that under APGST Act, the levy of tax on the turnover relating to bottle charges at 5% under Section 5E of the APGST Act holding, that rental charges of water, though an exemption was sought for and the same was passed contending that they sold the aerated water with an understanding that the bottle should be returned to them and as there is no sale of bottle neither lease of bottle and the saleprice is not in accordance with law.
23. It is further stated that Section 5E of the AGPST Act can be applied when a dealer transfers the right to use the bottles to distributors. As there is no transfer of the bottles and it is only right to use in respect of use of content in the bottle was being transferred and the customers were not at liberty to fill any content in it of their own choice. The bottles supplied to the customers duly filled with aerated water manufactured by them and further as they have invested huge amounts for purchase of the bottles, and on such investment, they have to pay interest and same is being recovered from the customers. It is also further contended that they also incur expenses by way of transportation charges for carrying, empty bottles from various destinations, back to factory premises for refilling, 17 PSKJ & NNRJ Trevc_35_2004&batch sorting charges for arranging empty bottles, labour wise comes unsorted from market, cleaning and other charges.
24. It is also further argued and contended that all these are recovered in the form of container charges. But the learned of Commercial Tax Officer rejected the contention and confirmed the review under Section 5 E of the APGST Act. But the learned Additional Deputy Commissioner (Appeal)accepting the contention of the petitioner and perused the copy of the agreement between he petitioner and the distributor, which was produced before the Additional Deputy Commissioner. As there is no intention to sell the bottles and bottles were given to the customers as a carrier for storage of contents and there is an obligation on the part of the consumers to return the bottles. In fact, it is clearly evident from the facts and circumstances of the case as there is no tax levied on the deposited turnover and collected bottles deposit which are returnable to the distributors and on returnable, the petitioner collect separate amount on container charges. The petitioner also relied on the judgment on Sarvaraya Sugars Limited v. State of Andhra Pradesh 6, wherein similar amounts were allowed exemption. 6 (2001) 32 APSTJ 60 18 PSKJ & NNRJ Trevc_35_2004&batch
25. The aerated water was sold in the bottles with an understanding that the bottle should be returned to them with, As such, the sale of bottle cannot be interfered, the company's only collect container charges towards recovery of the post-sale items as transportation charges of empty bottles, container charges paid to the company staff or cleaning of that is transportation charges of empty bottles, wages, public salaries, wages workers, staff for sorting, cleaning, washing of empty bottles, which come in unsorted and dirty condition from the market.
26. In Hindustan Coco Cola Beverages'a case at paragraph Nos. 29, 30, 31 and 32 and 42, the Hon'ble Supreme Court held as follows:
29. The petitioners are manufacturers of beverages and in the course of their business, they purchase and used crates and bottles with their respective brand names ; they put the soft drinks in the standard bottles of 200 ml, 300 ml and 350 ml and transport the same to the wholesale dealers in the crates housing 24 bottles in each crate ; the wholesale dealers in turn sell the same to the retailers ; the retail dealers sell the same to the consumers who after consuming the soft drinks, return the bottles to the retailers ; the retailers return the same to the wholesalers who in turn return the same to the manufacturers and this circle continues until the bottles and crates become useless ; the manufacturers collect deposits/rentals towards these bottles and crates as security which is refundable.19
PSKJ & NNRJ Trevc_35_2004&batch
30. The issue to be decided is whether the rental charges collected by the manufacturer from the distributors/wholesalers for bottles and crates is to be treated as part of the sale price of the soft drinks or is to be treated as a compensation for transfer of possession thereof for a limited period assessable under section 5E of the Andhra Pradesh General Sales tax Act, 1957.
31. It is important to note that the Tribunal has held in paragraph 28 of its order that bottles are returned by the end-customer to the retailers, that bottles and crates are returned by the retailers to the wholesalers and by the wholesalers to the manufacturers.
32. In view of the said finding by the Tribunal, we are of the view that when an end-customer purchases a soft drink in a bottle, the bottle is not also sold to the end-customer. If there is such a sale of the bottle also, the question of the customer returning the bottle to his vendor/retailer, the retailer in turn returning the bottle in the crate to the wholesaler and the wholesaler to the manufacturer would not arise. While the Tribunal does not say in so many words that there is a sale by the manufacturer of the bottle and crates also to the wholesaler, it relies upon the language in entry 21 of Schedule VI of the Andhra Pradesh General Sales tax Act, 1957 to hold that the said entry uses the words "bottled soft drinks sold under a brand name" and not "soft drinks" only ; that the soft drinks cannot reach the end-customer without bottle ; that the end-customer is neither using the bottle nor the crate and he simply consumes the soft drink and returns the bottles; that therefore what is paid by the end-customer is the consideration for the soft drink and not for getting any bottles or crates and consequently the manufacturers are not justified in splitting the price into cost of soft drinks and rental value of crates and bottles (collected by them from distributors) and that it is a colourable device adopted by the manufacturers to avoid the payment of tax.
42. Section 6C of the Andhra Pradesh General Sales tax Act, 1957 states as follows:
20
PSKJ & NNRJ Trevc_35_2004&batch "6C. Levy of tax on packing material.--Notwithstanding anything contained in section 5, section 5F, section 6 and section 6A, the rate of tax on packing material sold with the goods shall be the same as that of the goods packed or filled, whether or not there is separate sale or agreement for sale for the packing material and the goods packed or filled."
27. The High Court of Andhra Pradesh relying on the judgment of Commissioner of Sales Tax v. Gill & Company Ltd, it was held thus:
"In the absence of any other material, recitals in invoices will furnish good proof of the intention of the parties relating to the terms of the agreement and that by themselves, they will be inclusive piece of evidence. The Revenue, in the present case, has not adduced any evidence to rebut the contents of the invoices filed by the manufacturers nor did the Revenue dispute the correctness of the contents of the invoices by pleading that they are fabricated and not genuine. Therefore, in our opinion, the invoices filed by the manufacturers, which show clearly the separate charge on the sale of soft drinks and rental charges on crate and bottles indicate a contract between the parties to treat both as separate categories (to be charged at the rate of 12 per cent (under section 5 of the Act) and under five per cent (under section 5E of the Act) respectively) have to be accepted and tax levied accordingly. The statement in the grounds of appeal before the STAT that there is a written contract between the manufacturers and the distributors appears to be erroneously made by the manufacturers as admittedly there is no such written contract between them and none was filed even by the distributors. The Tribunal, therefore, in the facts and circumstances of the case, erred in drawing an adverse inference against the manufacturers for not filing the alleged written contract between them and the distributors and holding against the manufacturers on the said count."21
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28. The contention of the petitioner is that there is transfer of right to use of bottles to wholesale dealers under Section 5E of the APGST Act. This Court is of the opinion that there is strength in the contention of the petitioner on the said aspect.
29. The other aspect which is raised by the petitioner is that the inspection report made by the Commercial Tax Officer pursuant to the inspection, dated 20.07.1998 dehors the record which was made subsequent to report and there is no material on record at time of Assessment Order is made by the asessee. Therefore, the said report cannot be made basis for review under Section 20 of the APGST Act. The other contention is that the Joint Commissioner can only test the order passed by the lower Authority with reference to the material on record when the orders are passed by the lower authority but cannot refute the material at the time of passing of orders by the lower authority and the Joint Commissioner mainly the Inspection report of Inspecting officer as a basis for passing of revision order, as illegal which is against to the principles of natural justice.
22
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30. In view of the aforementioned reasons and circumstances which are mentioned above and considering the entire material placed before this Bench and also considering the decision of the Hon'ble Supreme Court and the High Court of Andhra Pradesh. This Bench is of the opinion that the order passed by the learned Sale Tax Appellate Tribunal is liable to be set aside and consequently the revision filed the petitioner is liable to be allowed confirming the order passed by the revisional authority and thereby the petitioner is eligible for exemption in respect of 'fruit juice' under the provisions of APGST Act.
31. Hence, for the said reasons, this Bench hold that the order of the Tribunal rejecting the contentions of the petitioner that the 'container charges' cannot be taken as part of the sale price of the 'soft drink' and it ought to have taken it as post -sale expenditure reimbursed by the distributor in respect of the bottles returned back to the petitioner for refilling and further the learned Tribunal was not correct in rejecting the contention of the petitioner to collect the 'container charges' under Section 5-E of the APGST Act.
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32. For the said reasons, these revisions cases are deserves to be and accordingly allowed setting aside the order, dated 05.08.2002, in T.A.Nos.388, 387, 385, 384 of 2001 passed by the learned Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad, for the Assessment Years 1997-1998, 1996-1997, 1994-1995 and 1993-1994 under the Andhra Pradesh General Sales Tax Act, 1957. There shall be no order s to costs.
Miscellaneous petitions, if any, pending in these Tax Revision Cases shall stand closed .
_________________________ JUSTICE P.SAM KOSHY ________________________________________ JUSTICE NARSING RAO NANDIKONDA Date:26.09.2025 YVL