IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THIS THE 17th DAY OF FEBRUARY, 2010 PRESENT: THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE R.KANTHA RAO TAX REVISION CASE No.119 of 1998 BETWEEN: M/S. Kavitha Wines, Vizianagaram, rep. by its Managing Partner Mr. Sitharamaiah … PETITIONER(S) AND The State of Andhra Pradesh represented by the State Representative before the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad. …RESPONDENT(S) THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE R.KANTHA RAO TAX REVISION CASE No.119 of 1998 ORDER: (Per the Hon’ble Sri Justice B.Prakash Rao) This tax revision case arises under Section 22(1) of the Andhra Pradesh General Sales Tax Act, 1957, at the instance of the petitioner, who is an assessee, aggrieved by the common order dated 29.11.1996 passed in T.A.No.589 of 1993, along with other appeals, on the file of the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad. Heard Sri S.Dwarakanath, learned counsel for the petitioner, and the learned Special Government Pleader for Commercial Taxes appearing for the respondent. Perused the material available on record. Briefly stated, the facts of the case are that the petitioner was a whole sale dealer in Indian Made Foreign Liquor and Beer; the relevant assessment year for the disputed tax was 1990-91; as per the assessment order dated 31.03.1992, the claim of the petitioner for exemption of tax on a turnover of Rs.2,18,232/- allegedly representing the gross profit derived on packing materials and glassware sold along with liquor as the said commodities were purchased by them along with liquor which was rejected initially by the assessing authority on the ground that the petitioner could not prove that the value of packing material was separately charged at the point of sale. When the matter was carried in appeal, the same was dismissed by the Appellate Tribunal by a common order dated 29.11.1996 along with the other connected appeals on the ground that there was no separate sales of bottles and packing material independently of liquor. Though in the connected appeals which were taken up before the Appellate Tribunal several other contentions were urged, all those matters were carried to this Court by way of revisions and ultimately those revisions have been disposed of rejecting the same, as reported in SRI SATYA WINERY & DISTRILLERY PVT. LTD., NAGOLE & ORS. vs. STATE OF A.P. & ORS.[1] wherein it has been held that “The Bench considered the legal principles emerging from a catena of cases and concluded that the issue has to be considered more on the facts as to the existence of an agreement, express or implied for the sale of packing materials viz., bottles and cartons. After examining the facts of each case the Bench found that “no finding was recorded by any of the authorities that there was an agreement express or implied, for the separate sale of bottles or cartons”. Accordingly held: “From the above facts, it is clear that though the learned counsel for the dealers contended that there was separate sale of packing material, the findings recorded by the authorities are otherwise. In the light of the specific findings recorded by the authorities, the dealers are not entitled for the benefit of taxing the turnover representing the bottles at the rates provided in the First Schedule to the Act. But, the turnover relating to cartons are to be taxed as secondary packing material at the rate provided in the First Schedule to the Act in the light of the decisions of this Court referred to earlier. In view of the above, the Dealers are not entitled to any relief in the Special Appeals as well as TRCs to the extent of the bottles, but, however, they are entitled to the relief in respect of the cartons.” ” Coming to the present case, the plea which is sought to be urged by the petitioner is that they claimed exemption only on the gross profit derived on packing material and glassware sold along with the liquor, but not on the entire value, and, in any event, the bottles and packing material should be charged as per the rates applicable to the relevant entries in the first schedule. The Tribunal has rejected the said plea mainly on the ground that the petitioner, once having accepted to pay the tax at 25% for both bottles and packing material as well as liquor, without claiming any exemption, cannot now seek division between the bottles and packing material as well as the liquor and claim exemption on the gross profits and it cannot be said that the petitioner had entered into separate sales of bottles and packing material independently of liquor. Therefore, it cannot be said that the liability can be divisible in respect of any goods. Hence, in agreement with the findings of the Appellate Tribunal and there being no reasons to interfere with the same, the tax revision case is dismissed. However, in the circumstances of the case, without costs. ______________________ (B. PRAKASH RAO, J) ____________________ (R.KANTHA RAO, J) 17th February, 2010 CVRK [1] (2005) 41 APSTJ 111