ORDER
P. Venkatarama Reddi, J
1. The conflicting decisions of the Supreme Court on the point at issue has given rise to this Full Bench reference. The primary question that has to be resolved by this Full Bench is whether the old and discarded newspapers sold from time to time by the appellant, who is a newspaper publisher, attract tax under the A.P. General Sales Tax Act (hereinafter referred to as the”Act’). Newspapers as such are not liable to be taxed under the Act in view of the exclusionary provision contained in Entry 54
of List II of the VII schedule. The controversy, however, is whether the old and accumulated newspapers which, when sold, are not utilised for reading purpose, but used for packing and other purposes could still be regarded as ‘newspapers’ within the meaning of Entry 54 of List II. As against the direct authority of the Supreme Court in the case of Indian Express (P) Ltd. v. State of Tamilnadu, 67 STC 474 to the effect that old newspapers cannot be treated as ‘Newspapers’ to enjoy the immunity from tax, we have the later decision of the Supreme Court in Sait Rikhaji Furtarnal v. State of Andhra Pradesh, 85 STC 1 which merely followed the purported reasoning adopted in A.I.R. Karamchari Sangh v. A.I.R Ltd, 70 STC 349 though it determined an altogether different point concerning a labour welfare legislation. Faced with these divergent decisions, the Division Bench consisting of M.N. Rao, J. (as he then was) and Rangarajan, J. felt that it is a fit case to be decided by a larger Bench. That is how this appeal is before us.
2. Before we take up the point for consideration, we would like to state a few relevant facts. This appeal under Section 23 of the A.P.G.S.T. Act arises out of the order of the Commissioner of Commercial Taxes passed in exercise of his revisional power under Section 20(1) of the Act. For the assessment year 1989-90, the petitioner which is a Newspaper publisher and a registered dealer under the Act was subjected to tax on a turnover of Rs.38,05,317/-. This turnover represents sales of old and discarded newspapers and some other waste paper and waste materials. On appeal, the Appellate Deputy Commissioner set aside the assessment on the disputed turnover of Rs.36,58,290/-. The sales of old newspapers were held to be not liable to tax, following the decision of the Supreme Court in Salt Rikhaji case (supra). As far as the sales of waste paper is concerned, the appellate authority held that by virtue of G.O.Ms.No.130 (Revenue) dated 14-2-1989, the turnover was exempt from tax. The Commissioner of Commercial Taxes, by the impugned order bearing the date 20-11-1995. set aside the order passed by the appellate
authority and restored the original assessment order passed by the Commercial Tax Officer. The Commissioner followed the decision of Supreme Court in Indian Express case (supra) which, according to him, was a more direct case. As regards the waste paper, the Commissioner held that the exemption G.O. had no application. It is this order of the Commissioner which is challenged in this Special Appeal.
3. In Indian Express case (supra) an identical question arose for consideration before the Bench of Supreme Court consisting of R. S. Pathak and Sabyasachi Mukharji, J J. On the same day, another Division Bench of the Supreme Court comprising R.S. Pathak. C.J. and Venkatachalaiah, J. followed the said judgment and confirmed the Madras High Court’s decision reported in 41 STC 105 (vide The Hindu v. State of Tamilnadu. 67 STC 477.
4. In Indian Express case (supra) their Lordships observed :
“In this appeal, learned Counsel for the appellant contends that when the surplus copies of the newspapers were sold they possessed the character of newspapers and were, therefore, exempt from sales tax. It seems to us clear that when newspapers are sold to the reading public they are sold as a medium containing information regarded as news. They are purchased by members of the public to acquaint themselves with the current news. Information is news when it is fresh and new. With the lapse of time it ceases to be news. So when newspapers become old, they carry information which is no longer news, and therefore they lose their character as newspapers. When they are disposed of as waste paper, their sale cannot be regarded as the sale of newspapers. They are not sold for the purpose of reading the news printed in them. It will be noted that the surplus copies are sold by weight and not per copy. What is exempt from sales tax is the turnover of newspapers and not the turnover of old newspapers or waste paper.”
5. It the above decision of the Supreme Court stood alone, there would have been no case for the appellant to claim tax immunity. But, a few years later, another two-Judge Bench of the Supreme Court, without noticing the Indian Express case (supra), drew the conclusion that old newspapers are also ‘newspapers’ and are therefore exempt from tax. This conclusion was solely based on the principle said to have been laid down in AIR Ltd case (supra). At this stage, it may be noted that there was no express reference to the said decision. But, as the Editor of STC has rightly mentioned in the foot-note, the obvious reference made by their lordships was to the case of AIR (supra). This is what Ranganath Misra, J. (as he then was) speaking for the Supreme Court observed :
“In regard to old newspapers, it is the submission of Counsel that even if the newspapers are not of the same date or of a current period, their contents had news value and thus they continued to be the newspapers and the mere fact that they were out of date did not take away the news clement therefrom. This Court in a recent judgment held a law journal to come within the meaning of newspaper though not carrying news of contemporary period. On the ratio of that decision the contention of the appellant that old newspapers arc also “newspapers” and would be entitled to the exemption provided under the Constitution is acceptable. We accordingly uphold the contention of the appellant and direct that old newspapers when sold as such would be covered by the exemption provided in the Constitution and sale thereof would not be liable to sales tax.”
6. The case of Sait Rikhaji (supra) is a case in which a general merchant dealing in Kirana and other goods sought exemption on the sales of old and waste newspapers sold by him. That claim was upheld by the Supreme Court. In AIR Ltd case (supra), the question was whether the benefits allowed to working Journalists employed in newspaper establishments were applicable as well to the employees of All India Reporter which is a
well-known Law Publisher. ‘Newspaper’ was defined in Newspaper Employees (Conditions of Service) and Misc Provisions Act as “any printed periodical work containing other public news or comment on public news and includes such other class of printed periodical work as may, from time to time be notified….,”
7. The Supreme Court held that law
reports could also come within the definition
of ‘newspapers’ under the said Act. Having
regard to the nature of the legislation, the
Supreme Court was inclined to place a wide
and liberal construction on the term
“newspaper’ so as to cover law journals. In
this context, the following observations made
by the Supreme Court deserve notice :
“The Act in question is a beneficent legislation which is enacted for the purpose of improving the conditions of service of the employees of the newspaper establishments and hence even if it is possible to have two opinions on the construction of the provisions of the act, the one which advances the object of the Act and is in favour of the employees for whose benefit the Act is passed has to be accepted.”
8. It may be seen that the ratio of the above decision is that the Law Reports insofar as they disseminate information regarding recent cases decided by the Supreme Court and the High Courts and other information concerning legislation, latest book reviews, Experts, Speeches made at seminars etc. legitimately fit into the description of ‘newspapers’ as they contain news in which the public are interested. At the same time, the following significant observations were made by their Lordships :
“We find it also difficult to agree with the submission made on behalf of the 1st respondent that since the law reports are going to be preserved by the lawyers as reference books after getting them rebound subsequently they should be treated as books. It may be that the decisions contained in these law reports may cease to be items of news after some time but
when they are received by the subscribers they do possess the character of works containing news.”
The observations at page 359 also deserve notice :
“Law reports also contain, newly enacted Acts, Rules and Regulations, book reviews and advertisements relating to law books, handwriting and finger print experts, etc., speeches made at conferences in which the legal fraternity is interested, etc. Though the publication of these items by itself may not occupy a substantial part of a law report to make it a newspaper, the publication of the recent judgments itself is sufficient to make a law report a newspaper which may after sometime cease to be a newspaper and become a book of reference.”
9. But, with great respect to their Lordships of Supreme Court, we must say that the aforementioned observations in AIR case (supra) were not taken note of. Again, with great respect to their Lordships, we are constrained to observe that Sait Rikhaji case (supra) proceeds on a wrong premise that in AIR Ltd. case (supra), the Supreme Court took the view that law journals even though they do not report contemporary events were still newspapers. There is no such observation in AIR Ltd case (supra). It was pointed out in no uncertain terms in AIR case (supra) that with the passage of time, the Law Journals would cease to be newspapers and become books of reference. It appears that the actual decision was not placed before their Lordships as the citation is not given in the judgment. The question whether the old law journals are newspapers and if they are sold as discarded or waste material, they still retain their character as newspaper was not considered nor was it necessary to consider in AIR case. On the other hand, as already pointed out, there are clear observations to the effect that the law journals shed their characteristics as newspapers in course of time. As already noted, the question considered in AIR case (supra) is
whether journals are newspapers within the meaning of Newspaper Employees (Conditions of Service) Act. If they are newspapers on the date of publication and/or on the date of release out of the press, that is enough to regard the printing and publishing establishment as newspaper establishment for the purposes of the said Act. It is immaterial that in due course of time, the journals lose their characteristics as newspapers. The actual point that arose for consideration and the ratio decidendi is thus vastly different. As far as sales tax is concerned, the taxable event is sale. It is on that date, we have to see whether the old paper still retains the character of newspaper. The answer can only be in negative as per the law enunciated by the Supreme Court in Indian Express case (supra) arising under Tamilnadu Sales Tax Act. The ruling in AIR case (supra) docs not go counter to this view; on the other hand, it reinforces the view-point that the law-journals as they become old, cease to be newspapers.
10. In this state of things, should we follow the decision in Sait Rikhaji case (supra) merely because it is a later decision ? The learned Counsel for the appellant Mr. Sarveswara Rao cited the Full Bench decisions , , , , and to persuade us to follow the later decision of the Supreme Court in preference to the earlier decision of equal number of Judges.
11. In alt these cases, it was held that in case of conflict between earlier and later decision of the Supreme Court rendered by benches consisting of equal number of Judges, the later decision should prevail. The view expressed by the majority of Judges in AIR 1980 Karnataka was approved and followed by Allahabad and Gujarat High Courts in the decisions aforementioned. However, we must point out that there is a weighty dissenting opinion of Jagannatha Shetty, J. speaking for himself and Venkatesh, J. We quote the words of Shetty, J. who in turn cited a passage in English case with approval :
“But the difficulty may still arise for the High Court when confronted with two inconsistent decisions of the Supreme Court by Benches consisting of equal number of Judges. Both cannot be said to be binding on Courts. But the choice is still more difficult as there is no firm general rule on the principle of precedent. The learned Chief Justice has opined that in such a case, the later of the two decisions should be followed by the High Court and other Courts. This practice, according to us, is neither a rule of propriety nor a rule to promote justice. It may be a convenient rule to promote consistency and avoid uncertainty. If it is meant to promote consistency in the administration of justice, we may as well ask the question, why not the High Court follow the former of the two rulings when both of them are of equal sanctity. Why alone the later carries the obligation and not the former ? The adherence to one practice would be as good or as bad as adherence to the other.
In our view, a conservative approach to any of these, may deny justice in a given case or series of cases and those clients may not be in a position to approach the Supreme Court for the redressal of their grievances. When confronted with two inconsistent co-ordinate authorities, Key, J., in Miles v. Jarvis, (1883) 24 Ch D 633 at p.636 said :
“….. The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law.”
Jessel M.R. in a like circumstance said in Baker v. White, (1877) 5 Ch D 183 at p. 190 that he was left with liberty to say which was not sound law. It seems to us, therefore, the High Court would be well advised to consider which of two conflicting decisions it will follow in the interest of the administration of justice and it ought to follow that which is better in point of law than in point of time.”
12. We may also notice a Full Bench decision of the Punjab & Haryana High Court in Indo Swiss Time Limited v. Umrao, in which the majority Judges took the view similar to the one expressed by Jagannatha Shetty, 3. It was observed :
“When judgments of the superior Court are of co-equal Benches and therefore of matching authority, then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. …. On principle it appears to me that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the superior Court are earlier or later is a consideration which appears to me as hardly relevant.”
13. Exhorting us to adopt the view taken by most of the High Courts and to give effect to the later decision of the Supreme Court in Sait Rikhaji case (supra), the learned Counsel for the appellant, in an apparent bid to ward off the possible argument based on the principle of ‘per incuriam’ has relied on the following observations of the Allahabad Full Bench in Gopal Krishna v. 5th Additional District Judge, Kanpur, :
“To us, it appears that it is only in cases of decision of concurrent Courts that the doctrine of per incuriam can be applied. Thus, the law declared by the Supreme Court cannot be ignored on that basis. A failure to cite authority of the earlier decision of the Supreme Court before it is not sufficient to render its latter decision per incuriam. Overruling a similar argument made in Ambika Prasad Misra v. State of U.P., AIR 1980 SC 1762, Krishna Iyer, J., agreed with the following observations made in Salmond ‘Jurisprudence’ page 215 (11th Edition) :
“A decision does not lose its authority merely because it was badly argued.
inadequately considered and fallaciously measured”
14. Pausing here for a moment, we may note that the above passage in Salmond’s ‘Jurisprudence’ was not quoted by Krishna Iyer, J. in the context of any argument of per incuriam. The question was whether the earlier decisions including the Full Bench decision in the famous Keshavananda Barathi’s case requires reconsideration on the ostensible ground that certain aspects were not considered.
15. The Full Bench of Allahabad High Court then went to the extent of saying that the later decision has impliedly over-ruled the earlier one.
16. The concept of ‘per incuriam’ which is allied to the doctrine of judicial precedents has been explained by Safari, J. in State of U.P. v. Synthetics and Chemicals Ltd., in the following words:
” ‘Incuria’ literally means ‘carelessness’. hi practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.) Same has been accepted approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. In Jaisri Sahu v. Rajdewan Dubey, , this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage from Halsbury’s Laws of England incorporating one of the exceptions when the decision of an appellate Court is not binding.”
In Punjab Land Development Corporation v. Presiding Officer, Labour Court, 1990 (3) SCC 682, Saikia, J. speaking for the Constitution Bench explained the principle on similar lines as Halsbury stated. The learned Judge observed :
“In England a decision is said to be given ‘per incuriam’ when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the house of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords. ”
Earlier, it was observed :
“The latin expression ‘per incuriam’ means through inadvertence. A decision can be said generally to be given per incuriam when Court has acted in ignorance of previous decision of its own or when the High Court has acted in ignorance of a decision of this Court.”
17. Though not relevant to the issue on hand, as a matter of clarification, we may add that a decision given in ignorance of the terms of a statute or of a rule having the force of a statute is also treated as given ‘per incuriam’ (vide the observation at paragraph 11 in Municipal Corporation, Delhi v. Gurnam Kaur .
18. Applying the test laid down in Punjab Land Development case (supra) it can ” be said that the decision in Sait Rikhaji case (supra) was given ‘per incuriam’, the Court not being made aware of the earlier decision on the point. That the pronouncement of law by a Division Bench of the Supreme Court is binding on another Division Bench has been laid down in no uncertain terms by the Constitution Bench in Union of India v. Raghubir Singh, . But then, the question is, as pointed out by the Allahabad Full Bench, whether the High Court can ignore the decision of the Supreme Court by treating it as ‘per incuriam’ . In this context, apart from the view expressed by the Full Bench of Allahabad, the learned Counsel for the appellant has drawn our attention to the speech of Lord Diplock in Cassel v. Broome (1972 AC 1027) which was quoted and tacitly approved by the Supreme Court in
Assistant Collector of C.E. v. Dunlop India Ltd., .
“The Court of appeal found themselves able to disregard the decision of this House in Rookes v. Barnard by applying to it the label per incuriam. That label is relevant only to the right of an appellate Court to decline to follow one of its own previous decisions, not to its rights to disregard a decision of a higher appellate Court or to the right of a Judge of the High Court to disregard a decision of the Court of Appeal.”
Before quoting this passage, Chinnappa Reddy, J. remarked :
“The better wisdom of the Court below must yield to the higher wisdom of the Court above. That is the strength of the
hierarchical judicial system.”
19. Relying on these observations, the learned Counsel for the appellant virtually tells us that the High Court should unreservedly accept the conclusion reached in Sait Rikhaji case (supra) without questioning the soundness of the reasoning or conclusion, irrespective of the fact whether it is a decision rendered ‘per incuriam’ or not.
20. We have given our anxious consideration to this part of the submission made by the learned Counsel. While we have no second thoughts on the principle that the High Court should abide by the decision of the Apex Court in a spirit of loyalty, we are unable to follow Sait Rikhaji case (though a later decision it is), which did not notice the decision of a co-ordinate bench of the Supreme Court in Indian Express case (supra). For the time being, we shall leave apart from consideration the question whether later decision is bound to be followed and whether it is open to the High Court to disregard the decision of the Supreme Court on the ground of the said decision being ‘per incuriam’.
21. But, the question still is whether we should treat the Sait Rikhaji case (supra) as a binding precedent on the crucial point and
whether we should take it that the law declared by the Supreme Court under Article 141 is that old and discarded newspapers sold for purposes other than reading should be regarded as newspapers within the meaning of Entry 54, List II of VII Schedule to the Constitution. With great respect, after a deep consideration, we cannot but answer this question in the negative. As already noticed, the only reasoning contained in Sait Rikhaji case is that in AIR case, a law journal was held to be a newspaper though it does not carry news of contemporary period. The decision on which the Supreme Court purported to place sole reliance does not say so. What the Supreme Court held in AIR case (supra) was not correctly quoted by their Lordships. The express and specific observations to the contra contained in Indian Express case (supra) were not noticed by their Lordships. Be it noted that there is no independent reasoning apart from placing reliance on the alleged observations in AIR case (supra), which are in fact not there. Inspite of this, (a) can it be said that the decision of the Supreme Court would have precedential value and represent the law declared by the Supreme Court ? (b) should it be mechanically followed by the High Court on the mere ground that it records a definite conclusion and that it is later in point of time-? (c) In a situation of this nature, is it not open to the High Court to follow the earlier direct decision of the Supreme Court containing elaborate reasons and the very decision (AIR case) on which Sait Rikhaji case placed reliance wholly and solely ? The answer to questions (a) and (b) in our considered view, should be in the negative and the answer to question (c) in the affirmative.
22. Without making inroads into the settled principles governing the binding force of a decision of the Supreme Court either by virtue of its precedential value or the mandate of Article 141, we can safely evolve the principle that in a case of conflict arising from the decisions of co-equal benches of the Supreme Court, the High Court is free to disregard the decision which is based on an obvious mistake of fact or the one which purports to follow the ratio of an earlier decision
though such ratio is found to be non-existent. The High Court can legitimately decline to follow such decision and follow the earlier decision which is backed by reasoning-whether it is acceptable to the High Court or not, and which is free from any such apparent flaw. We are unable to pursuade ourselves to subscribe to the view that the later decision should be automatically followed despite the fact that it rests on a conclusion based on an erroneous impression that an earlier decision took a particular view which in fact it has not taken. By doing so, we are neither questioning the hierarchical superiority of the Supreme Court nor the higher wisdom of the Hon’ble Judges of the Supreme Court. We are preferring one decision to the other – both rendered by Division Benches, for obvious reasons so as to avoid an incongruity leading to travesty of justice.
23. In this context, we would like to derive support from the dicta of the Supreme Court explaining the ratio decidendi, the precedential value to be attached to a Judgment and the declaration of law under Article 141.
24. It was pointed out in Syamrao v. Union Territory of Pondichery, AIR 1967 SC 1480 :
“It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein.”
In Delhi Municipal Corporation v. Gurnam Kaur (supra), A.P. Sen, J. after reiterating the principle that “Precedents subsilentio” and without argument are of no moment observed thus :-
“The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex-cathedra statement, having the weight of authority.”
Sahai, J. in Synthetics & Chemicals case (supra) :
“Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.”
There is another pertinent observation of Sahai, J. which deserves notice. His Lordship observed :
“In absence of any discussion or any argument the order was founded on a mistake or feet and therefore it could not be held to be law declared.”
25. Reinforced by the dicta and observations quoted above, we have no doubt in our mind that we should follow and give effect to the law declared by the decision in Indian Express case in preference to the conclusion reached in Sait Rikhaji’s case, notwithstanding the fact that the decision in Sait Rikhaji case is later in point of time.
26. We decline to follow the judgment in Sait Rikhaji case not so much because it is in conflict with the earlier decision in Indian express case which is directly in point but because the very judgment which their Lordships purported to follow (i.e. the decision -in AIR Ltd) does not lay down the principle which their Lordships say it has laid down. With great respect and humility we are constrained to point out that the conclusion in Sait Rikhaji case was founded on a mistaken impression that in AIR Ltd case, the Supreme Court took the view that law reports are newspapers though they do not report contemporary news.
27. Applying, therefore, the decision in Indian Express case, the first point urged by the appellant cannot be upheld. Though we do not accept the reasoning given by the commissioner is distinguishing Sait Rikhaji case, nevertheless, we hold that the Commissioner is justified in subjecting the turnover representing sales of old newspapers to tax by revising the appellate order in this regard.
28. Viewed from a broader constitutional perspective too, it is difficult to reach the conclusion that the Constitution intended to extend the immunity from state taxation to old and obsolete newspapers which are not meant for reading or of no value to the readers. The idea behind excluding the state’s power to levy sales tax on newspapers while reserving the exclusive power to the parliament in that behalf is to spare the most effective and cheapest media of communication from undue tax burden and to preserve the freedom of press. We do not think that the Constitution-makers had in view the obsolete and discarded newspapers to be used for packing and allied purposes when they used the expression ‘newspapers’ in Entry 54 of List II or Entry 92 and 92-A of List-I.
29. The next question that has been argued before us is the issue of limitation. The impugned order of the Commissioner bears the date 20-11-1995. It purports to revise the order dated 25-11-1991 passed by the Appellate Deputy Commissioner, Kakinada. That order was served on the petitioner on 27-1-1992. For setting aside that order in exercise of revisional powers under Section 20(1), a limitation of 4 years from the date of service of notice is prescribed. It is not in dispute that the last date for passing a final order in exercise of revisional power under Section 20(1) is 27-1-1996 i.e., four years from the date of service of the appellate order. Though the impugned revisional order of the Commissioner bears the date 20-11-1995, admittedly, it was served on the appellant on 3-8-1996. We find from the record that the said order reached the Commercial Tax Office concerned on 27-7-1996, as the stamp on the top of the order bears out and thereafter it was sent for service to the appellant who received the same on 3-8-1996. Thus, there is a time lag of more than 8 months between the purported date on which the impugned revisional order was passed and the date on which it was served on the assessee. The reason for such inordinate delay remains unexplained. Even after perusal of the relevant record, the
learned Government Pleader is not in a position to tell us as to what caused such extraordinary delay. In these circumstances, the ratio of the decision in State of Andhra Pradesh v. Ramakishtaiah and Co., 93 STC 406 is attracted and it must be presumed that the order was not passed on the date on which it was purportedly, passed. In an identical situation, the Supreme Court held:
“We are of the opinion that this appeal has to be dismissed on the ground urged by the assessee himself. As stated above, the order of the Deputy Commissioner is said to have been made on January 6, 1973, but it was served upon the assessee on November 21, 1973, i.e., precisely 10 1/2 months later. There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years’ period. The civil appeal is accordingly dismissed.”
30. Applying the principle laid down in the above case, we must held that the revision was done beyond the period of limitation prescribed by Section 20(1) of the Act. The Division Bench decision in Oriental Enterprises v. Commissioner of Commercial Taxes, (1997) 25 APSTJ 109 cited by the learned Government Pleader does not come to his aid for the reason that the learned Judges accepted the explanation for the delay in service, as given in the counter-affidavit.
31. Before we close the case, there is one more point which we have to touch, though in view of our finding on the second point, it is strictly unnecessary to deal with it. It is seen from the Commissioner’s order that he cancelled the relief granted by the appellate authority, even with regard to the turnover of waste paper and materials which may or may not be newspaper waste. The Commissioner observed that G.O.Ms.No.130, Revenue, dated
14-2-1989 exempting waste paper excludes from its purview old newspapers and newspaper waste. It is for this reason that the relief granted by Appellate Deputy Commissioner has been set aside. In the snow-cause notice, there was no proposal to set aside the appellate order on this part of the turnover. The issue of exigibility of tax on the turnover representing waste papers was never put in issue. It was for the first time in the final order passed by the Commissioner that the relief given was withdrawn. We are, therefore, of the view that the order of the Commissioner insofar as he withdrew the exemption granted on the turnover of waste-paper and materials to the tune of Rs.33,27,370/- is violative of principles of natural justice and therefore becomes illegal.
32. In the result, though we answer the main point arising in the appeal against the assessee, we set aside the impugned order of revision passed by the Commissioner of Commercial Taxes on other grounds.
33. Accordingly, the appeal is allowed without costs.