THE HON’BLE SRI JUSTICE T. VINOD KUMAR AND THE HON’BLE SMT. JUSTICE P.SREE SUDHA TRC No.235 of 2003 ORDER:(per Hon’ble Sri Justice T.Vinod Kumar)

This Tax Revision Case is directed against the order dt.13.05.2003 in T.A.No.505 of 1998 passed by the Sales Tax Appellate Tribunal, Andhra Pradesh, Hyderabad (for short, ‘the Tribunal’) for the assessment year 1993-94 under the provisions of the Andhra Pradesh General Sales Tax Act, 1957 (for short, ‘the Act’).

2. The revision petitioner – assessee is a registered dealer in liquor and beer on the rolls of Commercial Tax Officer, M.G.Road Circle, Secunderabad, and was assessed to tax, vide assessment order dt.31.03.1997 by the jurisdictional assessing authority.

3. The revision petitioner – assessee aggrieved by the aforesaid assessment order, whereby the assessing authority had levied tax on sale of bottles and cartons at the rate applicable to the contents and also levy of turnover tax on the sale of liquor for the period from 18.07.1993 to 31.03.1994, had filed appeal before the 1^st appellate authority in terms of Section 19 of the Act and on the appellate authority dismissing the appeal, vide its order dt.01.11.1997, the revision petitioner – assessee had availed the further remedy of appeal before the Tribunal, vide T.A.No.505 of 1998.

4. The Tribunal, by its order dt.13.05.2003, insofar as the appeal relating to sale of bottles is concerned, had allowed the appeal, and insofar levy of turnover tax under Section 5-A of the Act on the turnover of the dealer relating to second sales of liquor and beer is concerned, had dismissed the same.

5. Aggrieved by the aforesaid order of the Tribunal, this revision petition under Section 22 of the Act is filed, on the ground that the levy of turnover tax under Section 5-A of the Act on the turnover relating to second sale of liquor and beer is contrary to the Act.

6. Heard learned counsel for the petitioner and learned Special Standing Counsel appearing for the respondent and perused the record.

7. On behalf of the revision petitioner – assessee, it is contended that since the petitioner is second seller in respect of sale of liquor and beer, which are liable to tax under Sixth Schedule to the Act, no turnover tax in terms of Section 5-A of the Act can be levied on the turnover scored by the revision petitioner – assessee.

8. It is also contended by the petitioner – assessee that in terms of proviso to Section 5-A of the Act, since, the subject goods purchased and sold by the petitioner – assessee are subjected to tax under Sixth Schedule, the petitioner – assessee cannot be subjected to levy of turnover tax under the provisions of Section 5-A of the Act.

9. Per contra, learned Special Standing Counsel appearing on behalf of the respondent would contend that levy of turnover tax on the turn over scored by the petitioner – assessee for the assessment year and being second seller, cannot claim of it not being liable to pay turnover tax on its turnover for the year 1993-94 and thus, the learned Special Standing Counsel supports the order of the Tribunal.

10. We have taken note of the respective contentions urged.

11. Though on behalf of the revision petitioner – assessee, it is contended that sale of liquor and beer by the petitioner – assessee is second sale and since the same liable to tax under Sixth Schedule and as such it is not liable to turnover tax being second seller, a perusal of the order of assessment would show that the petitioner – assessee was neither the first seller nor the last seller of beer and liquor during the relevant assessment year.

12. During the relevant assessment period, the sale of liquor other than toddy and arrack was liable to tax at every point of sale other than at the point of last sale in the State, at 0.25 paise in the rupee, and insofar last sale in the State, the same was subjected to tax at

0.05 paise.

13. Since, the assessment order records the petitioner to be not undertaking last sale of liquor and beer, the turno