THE HON’BLE SRI JUSTICE P.SAM KOSHY AND THE HON’BLE SRI JUSTICE NARSING RAO NANDIKONDA TAX REVISION CASES NOS.35, 37, 38 AND 39 OF 2004

COMMON ORDER

(per Hon’ble Sri Justice Narsing Rao Nandikonda)

Since the parties and the issue involved in these Tax Revision cases are common, which were filed being aggrieved by the order passed by the learned Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad, in various appeals pertaining to different Assessment orders, all these cases to be heard together and decided by way of this common order.

2. These Tax Revision Cases are filed by the petitioner-

assessee against the common order, dated 05.08.2002, in T.A.Nos.388, 387, 385, 384 of 2001 passed by the learned Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad, for the Assessment Years 1997-1998, 1996-1997, 1994-1995 and 1993-1994 under the Andhra Pradesh General Sales Tax Act, 1957 (for short, ‘the Act, 1957’).

3. Petitioner herein is engaged in the business of manufacturing of ‘aerated water’ and ‘fruit juice’ in the name of ‘Pepsi’ in the brand name of ‘Slice.’ Petitioner-company is a registered dealer on the rolls of the Commercial Tax Officer, Jubilee Hills Circle, Hyderabad. During the Assessment Years 1993 - 1998, the petitioner had affected sales of ‘aerated waters’ and ‘fruit juice’ to various distributors within and outside the State of Andhra Pradesh. The Assessing Authority granted exemption for a period of seven years on sale of ‘fruit pulp’ and ‘fruit juice’ sold in the brand name of ‘slice’ in view of the Final Eligibility Certificate issued by the competent authority in terms of G.O.Ms.No.108, Industries & Commerce (IP)

Department, dated 20.05.1996.

4. The petitioner used to sell ‘aerated water’ in the bottles by investing huge amount. The bottles bear the brand name of the petitioner. The bottles were recycled and again used for filling up of ‘aerated water’ and ‘soft drinks.’ It is stated that the petitioner used to incur expenditure for transportation of empty bottles from various destinations and back to the factory premises for refilling. Petitioner also incurred expenditure for sorting and arranging the empty bottles for flavour-wise and back to the factory premises for refilling and it also incurs expenditure for cleaning and other work on the bottles so returned from the market by the distributors. According to the petitioner, these charges are post-

sale expenditure incurred by the petitioner and the petitioner used to recover the said expenditure in the form of ‘container charges’ from the distributors in addition to the sale price of the aerated water/soft drink.

5. It is further case of the petitioner that in view of Certificate issued by the competent authority as per the G.O. the Assessing Authority cannot collect tax on ‘container charges’ but the Assessing Authority while passing final Assessment Order, levied tax towards ‘container charges’ under Section 5E of the APGST Act. It is further case of the petitioner that ‘fruit juice’ is eligible for ‘tax holiday’ and ‘container charges’ is in ineligible list of items and accordingly, the Assessing Authority passed order.

6. As against the order of the Assessing Authority as to levying of tax on the ‘container charges’ under Section 5E of the APGST Act, the petitioner preferred appeals before the Appellate Deputy Commissioner (CT), Punjagutta, who in turn after assessing the same held that the Assessing Authority is not correct in levying tax under Section 5E of the APGST Act. The Appellate Authority after examining the issue in detail, elaborately passed an order allowing the appeal and holding that the Assessing Authority was not correct in levying tax under Section 5E of the APGST Act in respect of the ‘container charges’ received by the petitioner from the distributors.

7. Against the said orders, the revenue has preferred a revision before the Additional Commissioner (Revisional Authority) wherein a show-cause notice was issued proposing to revise the o