Decided on May 20,1998

Sri Vijaya Durga Mini Modern Rice Mill Appellant


M. Ramakrishna, Chairman - (1.) THE appellant M/s. Sri Vijayadurga Mini Modern Rice Mill, Vizianagaram has come up with the present appeal aggrieved against the orders passed by the Appellate Deputy Commissioner (CT) Kakinada in Appeal No. VZM. 21/95 -96, Dated 9.11.1995 whereby he confirmed the orders passed by the Commercial Tax Officer, Farvathipuram in G.I. No. 4931/93 -94, Dated 20.3.1995 as regards the disputed turnover of Rs. 2,63,100/ - relating to the hire charges for the lorry hired. The appellants are assessees on the rolls of the Commercial Tax Officer, Farvathipuram for the year 1993 -94 and during the assessment year they filed form A2 returns disclosing the following turnovers: On verifying the accounts, the assessing authority in respect of the disputed turnovers referred to above, which relate to the freight charges held that it is taxable under Section 5 -E of the APGST Act, 1957 and therefore he added the amount to the turnover reported in the returns and assessed it to tax. Aggrieved against the said assessment orders, the appellant preferred appeal before the Appellate Deputy Commissioner (CT) Kakinada and the same was confirmed. Hence, the assessee has come up with the present appeal before us.
(2.) REITERATING the contentions urged before the lower authorities, it is contended by the learned authorised representative that the appellant is engaged in the milling and sale of rice and its products. The appellant also owns a lorry and is also engaged in the business of transporting the goods for others by such lorry. It is his submission that under Sec. 5 -E tax is leviable on transfer of right to use any goods. But in the present case, there is no such transfer of right to use the lorry. The appellant always held the right to use the lorry, and he did not transfer that right to anybody. Merely because the appellant transported goods belonging to others in his lorry for remuneration, it cannot be treated as lease of the lorry itself. He contends that it is only a service of transportation provided by the appellant for which he was paid service or transportation charges. The charges received are not for hire of lorry but for service of transportation. The learned Authorised Representative has relied upon the following decisions: M/s. Rashtriya Ispat Nigam Ltd. Vs. C.T.O.. Company Circle, Visakhapatnam : (1990) 10 APSTJ 16 (A.P.); M/s. DST Site Office Vs. Saipem India Project Office Vs. State of Andhra Pradesh, (1991) 12 APSTJ 187) (STAT); State Bank of India & Others Vs. State of A.P. : (1988) 70 STC 215 (A.P.) 20th Century Finance Corporation Ltd., Vs. State, (1989) 75 STC 217 (Bom.) M/s. ITC Classic Finance & Services Ltd. Vs. State of A.P., (1995) 20 APSTJ 150 (AP). On the other hand the learned State Representative has relied upon the orders passed by the lower authorities and the following decisions: M/s. Krishna Chandra Bhera and Another Vs. State of Orissa & Others, (1991) 83 STC 325; M/s. Harbans Lal & Another Vs. State of Haryana : (1993) 88 STC 357.
(3.) THE point for consideration is whether the disputed turnover is not liable for tax.;

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