N.K. Jain, J.
1. This revision Under Section 15(2) of the Rajasthan Sales Tax Act against the judgment of learned Sales Tax Tribunal, Ajmer dated 4.7.1986 in Sales tax special appeal No. 85/82.
2. Brief facts of the case are that the non-petitioner M/s. Chhogalal Akodia is a registered dealer leading in 'mica' cutting who is now being represented by his L.Rs. The assessee for the assessment year 1972-73 for the period 1.1.72 to 31.12.72 filed return. The assessee had purchased certain 'mica' for the purpose of resale on the strength of declaration in form ST-17. Some 'mica' was sold after cutting its edges and dressing the 'mica' blocks. The assessing authority treating this process as a process of manufacture of 'mica' and charged tax @ 1% on 'mica' purchased by the assessee. The assessee filed an appeal before the Dy. Commissioner (Appeals) which was partly allowed on 1.3.1977. Being aggrieved by the order of Dy. Commissioner (Appeals), the assessee has moved an appeal before the Board of Revenue for Rajasthan. The learned Single Member rejected the same on 28.6.82 treating 'mica' cutting as a process of manufacture. The assessee preferred a special appeal before the Division Bench and the same, was allowed holding that cutting crude 'mica' is not a process of manufacture as it is not covered by Section 2(K) of the RST Act. Hence, the Department has preferred this revision, raising following questions of law:
1. Whether the process of cutting of crude mica amounts to 'manufacture' Under Section 2(k) of the Rajasthan Sales Tax Act, 1954?
2. Whether Tribunal rightly set aside tax levied by lower authorities Under Section 5C read with Section 5A of the Act?
3. Mr. B.C. Mehta, learned Counsel for the Revenue submits that process of cutting of crude 'mica' is manufacture process and placed reliance on C.T.O. Pali v. Umed Sizing Factory S.B. Sales Tax Revision Petition No. 188/87 decided on 29.11.1988 along with the connected matters and Ujagar Prints v. UOI : [1987]167ITR904(SC) .
4. On the other hand Mr. Vineet Kothari has not disputed the proposition of law of above uses but submitted that the process of cutting of edges and dressing of mica blocks does not amount to 'manufacture' and placed reliance on Dy. C.S.T. v. Pio Food Packers : 1980(6)ELT343(SC) , Sterling Food and Ors. v. State of Karnataka (1986) 19 S.T.L. 80 (S.C.), CST v. Paper Process Works (1986) 18 S.T.L. 102 (Bom.), School Boys Industry v. CST (1987) 23 S.T.L. 149 (All.), Slate of Orissa v. Satyanarayan Ramshankar (1987) 65 S.T.C. 269 (Ori.), State of Oriasa v. Titaghur Paper Mills Co. Ltd (1985) 14 STL BO(SC). He has also placed reliance or order No. 465/80 of the Govt. of India dr. 5.5.80 and the Notification dt. 3.4.1971 published in Raj. Gaz. 4(ga)(I) dt. 1.7.71.
5. In C.T.O. v. Umed Sizing Factory S.B. Sales Tax Revision No. 188/87 decided on 29.11.1988, it has been observed that in sizing the yarn materials like starch, gum and cellulose is required for sizing of the plain cotton yarn. In the registration certificate no mention has been made that what goods are going to form part of the manufacturing process of the sized yarn. It has also been observed that the items are used for processing of the yarn and the result is the sized yarn, therefore, there is not hesitation in saying that the assessee is entitled to the benefit Under Section 5C(1) of the Act. The learned Judge has also observed that in fact the department should insist that whoever wants to get the benefit of ST-17, the applicant must rill in all column of ST-3 and mention that what are the raw materials for manufacturing of the goods for sale on which the assessee wants to claim any benefit, if any.
6. In Ujagar Pirints v. UOI : [1987]167ITR904(SC) it has been held that the process of bleaching, mercerising, dyeing printing, water proofing, etc., carried out by the processors on job work basis amount to manufacture both under the Act as it stood prior to the amendment as also under the Act subsequent to the amendment and the processed fabrics are liable to be assessed to excise duty in the hands of what may be called 'jobbers'. In this case the process of dyeing, processing and printing of clothes was considered by the Constitutional Bench reported in (1988) 27 STL 207 (SC) has not answered the same, observing that indeed, on this point the Referring Bench did not disagree or haven any reservations either.
7. In Dy. CST v. Plo Food Packers : 1980(6)ELT343(SC) it has been observed that when pineapple fruit is processed into pineapple slices for the purposes of being sold in sealed cane there is no consumption of the original pineapple fruit for the purpose of manufacture and the case does not fall within Section 5A(1)(a) of the Kerala General Sales Tax Act, 1963. Although a degree of processing is involved in preparing pineapple slices from the original fruit, the commodity continues to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it. It has also been observed that where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it has undergone, degree of processing, it must be regarded as still retaining its original identity.
8. In Sterling Food and Ors. v. State of Karnataka (1986) 18 S.T.L. 80 (S.C.) it has been observed that when raw shrimps, pawns and lobsters are subjected to the process of cutting of heads and tails, peeling, diveining, cleaning and freezing, they do not cease to be shrimps, prawns and lobsters and become another distinct commodity.
9. In CST v. Paper Process Works (1986) 18 S.T.L. 120 (Bom.) it has been observed that Clause (17) of Section 2 of the said Act gives an extensive definition of the term 'manufacture' so as to include within its scope even the processing or treating or adapting of any goods. Rule 2 of the Bombay St Rules, 1959 sets out the processes which are not included in 'manufacture'. It would be sufficient to notice that the process of slitting larger reels of paper into smaller reels, such as was carried on by the assessee, has not been excluded from the definition of 'Manufacture' under this rule. It has also been observed that in any event, it was for the revenue to establish before the Tribunal by leading sufficient evidence that reels of paper produced by the assessee were regarded as a different commercial commodity from the larger reels of paper purchased by them. In fact on the evidence before the Tribunal, the Tribunal has come to the conclusion that the two articles in question are commercially the same commodity. There is no warrant to interfere with that finding in this reference.
10. In School Boy Industry v. CST (1987) 23 S.T.L. 149 (All.) it has been held that puffed wheat is not a commodity different from wheat grown by the assessee on its land. Simply because the wheat is processed to make it puffed wheat, it cannot be said that the character of wheat grown by the assessee substantially changed and long as minimal processing is done by the agriculturist himself the agricultural produce even after processing will not become a different commodity and that could not be subjected to tax within the meaning of the proviso to Clause (c) of Section 2 of UP Act, 1948.
11. In State of Orissa v. Satyanarayan Ramshankar (1987) 65 S.T.C. 268 (Ori.) it has been held that by applying the process of cleaning and separating the chope from the Dhania, there was no material change in the nature of the commodity which could deprive the dealer of the benefit of purchasing the same on declaration for resale under the certificate of registration. There was no material change in the nature of the commodity which could deprive the dealer from the form the benefit of purchasing the same on declarations for resale under the certificate of registration.
12. In State of Orissa v. Titaghur Paper Mills Co. Ltd. (1985) 14 S.T.L. 60 (S.C.) it has been held that sale of dressed or sized logs by the respondent firm which are same thing as 'timber' having already been assessed to sales-tax, the sales to the first respondent firm of timber by the State Government from which logs were made by the respondent firm cannot be made liable to sales-tax as it would amount to levying tax at two points in the same series of sales.
13. Term 'manufacture' has been defined in Section 2(k) of the Rajasthan Sales Tax Act, which reads as under:
2(k) - Manufacture includes any process or manner of producing, collecting, extracting, preparing or making any goods out does not include such manufactures/or manufacturing process as may be notices by the state Government.
14. The definition of 'manufacture' is very wide.
'Crude mica', 'manufactured mica ' and 'mica ' have been defined in the Notification dt. 3.4.1971 which reads as under:
(d) 'Crude mica' means mica in its rough state before it has been trimmed or subjected to any process;
(h) 'manufactured mica' means mica in any form other than the form of crude mica, block mica, chillas or splittings;
(i) 'mica ' includes crude mica:
15. It is not out of place to mention here that the Appellate Collector of Central Exice, Calcutta dt. 9.5.77 though in a case of excise has observed in appeal No. 132/BR/1977 that the Govt. of India thus observed that mica is generally sold in the market in block form commonly known as block mica. It does not change its character, quality and properties when it is cleaned cut or graded. The Govt. consider that this treatment for purposes of marketing does not constitute a process of 'manufacture' as no new produce as such thereby comes into existence. The case of fabricated mica which paid customs duty of export is, however, different as it involves some process of fabrication and/or of punching which would constitute 'manufacture'. In the cases referred above, the different High Courts as well as the Apex Court has discussed in different context as to what process amounts to manufacture. The cutting of crude mica has not been considered in any of these cases. But these opinions, are, of course, relevant and would be amongst the various factors to be taken into account in deciding the question. The test is whether in the eyes of those dealing in the commodity is regarded as distinct in character and identity from the original commodity. In the instant case the Learned Tribunal after considering the relevant record and the case law observed that cutting of crude mica does not amount to 'manufacture', in view of C.S.T. v. Hari Vallabh and Ors. (1968) 21 S.T.C. 17 and Dy. C.S.T. v. Pio Food Packers (1980) 46 S.T.C. 63 and moreso the Department has not been able to establish by leading evidence that the process of cutting of crude mica is not done for transportation and by subtantial change it has become a distinct commodity, when amounts to manufacture. After applying the aforesaid test to the facts of the present case, to my mind crude mica excavated from mines and to sale it the process of cutting and dressing known as knife dressed block is necessary which is done for transportation, does not amount to manufacture as there is no difference in the commodity between crude mica and the processed article 'knife dressed block.' The cases cited by the learned Counsel for the petitioner are not applicable as in the case of Ujagar Prints v. UOI (supra) it has been observed that 'grey fabric' after undergoing finishing, emerges a commercially different commodity with its own price structure, custom and other commercial incidents. Similarly in ACTO v. Umed Sizing the question was whether the respondent assessee is entitled to benefit Under Section 5C(1) or not even if he has not mentioned in the Registration Form the Raw Material used in the process all sizing yarn, it is also not directly in issue. As stated above, in the present case as no new and different commodity emerges out of the said process of cutting and the process is carried out just to make the block of crude nica conveniently transaportable and marketable, in my opinion, the process of cutting of edges and dressing of mica blocks does not amount to manufactured as defined in Section 2(K). Therefore, the view taken by the learned Tribunal under the facts and circumstances of the case does not call for any interference, and the question raised by the Department are answered in negative.
16. In the result, this revision petition stands disposed of with the above observations.