IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE MRS. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 4 9 6 3 of 2010 Between: M/s. Bismillah Oil Industries, 13/82, Near Chinna Kamela street, Yemmiganur, Kurnool district. Represented by its Proprietor, Sri TK Khaja Hussain. ..... PETITIONER V/s. The Commercial Tax Officer, No.I, Adoni, Kurnool district, Andhra Pradesh & 3-Ors. .....RESPONDENTS Counsel for the Petitioner : Sri G. Narendra Chetty Counsel for the Respondents: Sri Balaji Verma Spl. S.C. for C.T. The Division Bench made the following Order : (Order follows 2nd page) THE HON'BLE SMT. JUSTICE T.MEENA KUMARI AND THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No. 4963 of 2010 ORAL ORDER : (Per THE HON’BLE MRS. JUSTICE T.MEENA KUMARI) Seeking mandamus to declare the impugned order dated 02-02-2010 of AP Sales Tax Appellate Tribunal, Hyderabad, in TMP.No. 402 of 2009 in TA.No.625 of 2009 dismissing the same as illegal, contrary to the judgment of this Hon’ble Court in State of AP V/s. Vasavi Traders reported in 35-APSTJ 189 (AP) and to set aside the same and consequently to grant stay of collection of the disputed tax of Rs.7,17,095-00 for the assessment year 2001-2002 under APGST pending disposal of TA.No.625 of 2009 before the AP Sales Tax Appellate Tribunal, the present writ petition is filed by the petitioner. 2. The petitioner is a registered dealer on the rolls of the first respondent and dealing business in groundnut seeds and sunflower seeds. During the assessment year 2001-2002, the petitioner purchased groundnut in the local market yard and after decorticating them into seeds, sold the same by way of inter-state sales to exporters who are residing outside the State of Andhra Pradesh, who in turn exported the seeds to outside India. During the relevant period groundnuts were classified under Entry 6 of the Third Schedule to AP GST Act, 1957 liable to tax, when purchased by an oil miller other than a decorticating miller in the State, at the point of purchase by such miller and in all other cases at the point of purchase by such miller and in all other cases at the point of purchase by the last dealer who buys in the State. As the petitioner has sold the groundnut seeds by way of inter state sales to exporters in other states, the petitioner became the last dealer who purchased in the State of AP liable to tax under the said entry. However, the Government in exercise of its powers under section 9(1) of the said Act issued GO.Ms.Nol.537 Revenue dated 24-3-1984, 3. It is stated that on 12-2--2003 the first respondent passed the assessment order for the assessment year 2001-2002 by granting exemption on the disputed turnover following the judgment in 35 APSTJ 189 (AP). Thereafter on 08-3-2004 the first respondent passed revised assessment order withdrawing the exemption. Aggrieved thereby, an appeal was filed before the first appellate authority following the judgment of this court and also another judgment of the Tribunal on 12-7-2005. On 14-7-2009 the second respondent passed revision order setting aside the appellate order, restoring the re-assessment order. Aggrieved thereby, the petitioner filed an appeal along with stay application on 14-10-2009 before the Sales Tax Appellate Tribunal. Thereafter on 02-2-2010 the Tribunal dismissed the stay application. Aggrieved thereby, the present writ petition has been filed. 4. It is submitted by the learned counsel for the petitioner that though several contentions were raised before the Sales Tax Appellate Tribunal but the Sales Tax Appellate Tribunal incorrect held that the issue in the present case was not resolved in the said judgment of this court. Further the Tribunal held that the explanation to GO.Ms.No.537 makes it very clear that the dealer shall be entitled for exemption only when the tax has been actually paid on the inter- state sales and such exemption shall not be allowed in case where the inter-state sales are exempt from tax for any reason by any of the provisions of CST Act, 1956 or the notifications, if any, issued thereunder, apparently referring to the amendment explanation which is not applicable to the present case. The learned counsel for the petitioner further stated that the above part of the order of the Tribunal is totally in dis-agreement with the judgment of this court in the aforesaid case. It is further stated that the Sales Tax Appellate Tribunal is bound by the judgment of this court and it cannot take a different view from the view taken by this Court. The impugned order of the Tribunal amounts to judicial indiscipline. Further the judgment in State of Karnataka V/s./ MB Arshraf and Company reported in 107 STC 571 (SC) relied on by the State has absolutely no bearing on the issue involved in the present case and cannot be relied upon in the face of the judgment of this court was confirmed by the Hon’ble Supreme Court. 4. Heard the learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes. 5. In the facts and circumstances of the case, we are of the opinion that the writ petition can be disposed of at the stage of admission directing the petitioner to deposit 1/3rd (one-third) of the disputed tax, as per the impugned order in addition to the amount already paid, preferably within a period of four weeks from today i.e., 05-03-2010 and the respondents are directed not to take coercive step for recovery of the balance disputed tax, pending finalisation of the appeal by the third respondent. It is made clear that the amount paid, if any, shall be given credit to the above stipulated sum. 6. With the above directions, the writ petition is disposed of at the stage of admission. No order as to costs. _____________________ Justice T.Meena Kumari ___________________________________ Justice Nooty Ramamohana Rao March 5, 2010. I s L NB: Furnish CC. in two days. B/o. I s L THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE NOORTY RAMAMOHANA RAO WRIT PETITION No. 4963 OF 2010 Judgment of the Division Bench delivered by the Hon'ble Smt. Justice T. Meenakumari) Circulation Entry No. 1 0 0 Date: 05-03-2010 COMPUTER No. 43 Court Master: I s L