JUPITER CASHEW COMPANY RAJAHMUNDRY Vs. COMMISSIONER OF COMMERCIAL TAXES HYDERABAD

JUDGEMENT

(1.) This Special Appeal is directed against the order of the Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad dated 15-10-1993 passed in Ref. LV(3)/138/89. The petitioner-firm was finally assessed for the assessment year 1979-80 by the Commercial Tax Officer, Rajahmundry on a total and net turnover of Rs. 35,59,950/- vide his order No. 8845/79-80 dated 16-7-1981. Out of this total turnover, Rs. 35,37,370/- related to purchase of cashew nuts and the balance, turnover of gunnies and preferred an appeal before the the petitioner disputed the assessement of the entire turnover Appellate Deputy Commissioner, Kakinada. The Appellate Deputy Commissioner, Kakinada, by his Order No. 427/91-82 dated 30-6-1982 allowed the appeal filed by the petitioner-assessee and ordered exemption of the entire turnover. Thereafterwards, the Joint Commissioner (Legal) revised the order of the Appellate Deputy Commissioner relating to turnover of Rs.35,37,370/- on cashew nuts and passed orders confirming the assessment to tax on a turnover of Rs. 7,23,639/- and permitted exemption on the remaining turnover by his order dated 30-9-1996. The petitioner being aggrieved by the said order preferred Special Appeal No. 26 of 1998 and this Court by its order dated 22-6-1990 set aside the order of the Commissioner and remanded the proceedings to the Commissioner with a direction to give opportunity to the petitioner and decide the dispute afresh. After remand, the Commissioner by his order dt. 15-10-1993 set aside the order of the Appellate Deputy Commissioner as confirmed by the Joint Commissioner (legal) and held that the exempted turnover of Rs. 28,13,725.51 is liable to tax under Section 5 (3) of the CST Act read with Section 20 (1) of the APGST Act, thus restoring the original assessment order of the Commercial Tax Officer. Hence this Special Appeal.

(2.) In our considered opinion, apart from the points raised in this Special Appeal, this special Appeal should fail in the light of the Judgment of the Apex Court in Vijayalakshmi Cashew Company v. Commercial Tax Officer, Srikakulam, In the said Judgment, the Apex Court has declared and opined that cashew kernels and raw cashew nuts are two different commercial commodities and they are not the same goods. While holding so, the Apex Court observed -

(3.) In Consolidated Coffee Limited v. Coffee Board, Bangalore, the Supreme Court laid down the conditions precedent for applying Section 5 (3) of the CST Act. They are - (1) There must have been a preexisting agreement or order to sell specific goods to a foreign buyer; (2) The last purchase or sale referred to in section 3 must have taken place after the said agreement or order with the foreign buyers was entered into; (3) The sale or purchase must have been for the purpose of complying with such pre-existing agreement or order.