G. Jaishree, J. - (1.) THIS appeal is preferred by the assessee M/s. Shivalingam Beedi Works, Cuddapah aggrieved by the revision of final assessment for the year 1991 -92 under APGST Act made by the Dy. Commissioner (CT), Chittoor vide his order dated. 14.11.1994 in exercise of the powers U/s. 20(2) of APGST Act. The appellant is a dealer in beedi leaves. The Commercial Tax Officer, Cuddapah made final assessment for the year 1991 -92 vide his order dated. 30.3.1993 in Asst. No. 20123/91 -92 finding the gross turnover of Rs. 35,57,839/ -. He exempted this entire turnover from the levy of Sales Tax including a turnover of Rs. 12,59,150/ - relating to purchase of beedi leaves from Forest Department which is taxable at the point of last purchase in the state. The Commercial Tax Officer granted exemption on this disputed turnover relying upon the judgment of A.P. High Court in the case of State of A.P. Vs. M/s. Sirpur Paper Mills Limited, Hyderabad reported in, 12 APSTJ 110 which is given following the judgment of the Hon'ble Supreme Court in the case of State of Orissa Vs. Titagur Paper Mills Company Limited ( : 60 STC 213) holding that in such a case there is no element of sale and the royalty is not liable to tax under the provisions of APGST Act. The Commercial Tax Officer accepted the contention raised by the dealer that the bid amount (royalty) paid to the Forest Department for cutting, collecting and removing beedi leaves from certain specified area for certain period is not purchase turnover in as much as the government neither effects sales nor the transaction constitutes purchase, and accordingly exempted this turnover from Sales Tax.
(2.) THE Dy. Commissioner revised the assessment holding that the exemption granted by the Commercial Tax Officer is irregular and prejudicial to the interests of State revenue. He issued revision notice dated. 3.9.1994 proposing to levy tax on this disputed turnover stating that beedi leaves are taxable at the point of last purchase in the State according to Item No. 18 to the IInd Schedule. He called for objections from the assessee but as he did not receive objections he finalised the revision by passing the impugned orders levying tax on this disputed turnover @ 6%. While making the revision, the revisional authority relied upon the judgment of A.P. High Court in the case of Sri Venkateswara Beedi Leaves Contractors and Others Vs. The State of Andhra Pradesh reported in : 54 STC 182 holding that the collection charges and royalty form part of the purchase amount. The Dy. Commissioner observed that by whatever name the amount paid to the Forest Department is called for collection of beedi leaves, the same is taxable. Regarding the cases relied upon by the Commercial Tax Officer, he observes that those cases have no relevance to this case as in both the cases the commodity involved is bamboos which are taxable at sale point whereas beedi leaves are taxable at purchase point. The assessee preferred this appeal contending that the C.T.O., rightly exempted this turnover from tax relying upon the Hon'ble Supreme Court judgment reported in : 60 STC 213 and that of A.P. High Court in, 12 APSTJ 110 and the Dy. Commissioner grossly erred in distinguishing the said decisions on untenable grounds. It is pleaded that the Dy. Commissioner should have seen that there is no element of sale or purchase and royalty amount paid cannot be treated as sale price or purchase price whether goods are bamboos or beedi leaves. It is further pleaded that the Dy. Commissioner grossly erred in invoking the decision of A.P. High Court reported in : 54 STC 182 which is distinguishable. In the said case, the counsel conceded that royalty was taxable in view of decision of Hon'ble Supreme Court reported in : 40 STC 603. But, this decision was over ruled by the Hon'ble Supreme Court in State of Orissa Vs. Titaghur Paper Mills Co., Ltd. ( : 60 STC 213) which is followed by the Commercial Tax Officer in this case. It is pleaded that in the said case there were specific agreements for sales and in fact the Government sold beedi leaves to purchasers at a price which included components of royalty and collection charges. It is contended that in the present case, the tender was for awarding right to collect beedi leaves during the specific period and it has no relation to the quantities or quality of beedi leaves to be collected by the appellants. It is pleaded that the decision of the Hon'ble Supreme Court in Titaghur Paper Mills case directly applies to the case of the appellant and the Dy. Commissioner ought not to have revised the assessment made by the Commercial Tax Officer. It is lastly pleaded that the revision made by the Dy. Commissioner is illegal and contrary to the decision of the Hon'ble Supreme Court in Titaghur Paper Mills Co. Ltd. case and therefore it is a fit case for refund of institution fee to the appellant.
(3.) THIS case was heard by this Tribunal earlier and Tribunal dismissed the appeal vide its order dated 20.8.1999 following the judgment of A.P. High Court reported in : 54 STC 182 and the judgment of the Supreme Court reported in : 40 STC 603 in the case of State of Madhya Pradesh Vs. Orient Paper Mills Ltd. This Tribunal held that when the appellant had paid the royalty towards beedi leaves, he acquired an interest in beedi leaves which are movable property and therefore they are liable for tax and not entitled for exemption. It was held that the transfer of interest in beedi leaves covered by the contract in favour of the appellant is sale and the amount paid in consideration for the same would amount to sale price whether it was paid in the name of royalty or otherwise and therefore the disputed turnover is liable for tax.;