Mathur, J.
1. This revision petition at the instance of the Department under Section 86(2) of the Rajasthan Sales Tax Act, 1994 is directed against the judgment of the Rajasthan Tax Board dated 22nd February, 1999, whereby the Board while allowing the appeal has set aside the order of the District Level Screening Committee and directed to issue the eligibility certificate to the respondent M/s. Meera Granites Pvt. Ltd. under the provisions of the Rajasthan Sales Tax New Incentive Scheme for the Industries, 1989.
2. The facts giving rise to the instant revision petition are that the respondent Unit moved an application to the District Level Screening Committee, Rajsamand(hereinafter referred to as the D.L.S.C.) for the grant of eligibility certificate under the Rajasthan Sales Tax Incentive Scheme, 1989 (hereinafter referred to as the Scheme of 1989) as an expansion Unit. The D.L.S.C. rejected the application on the ground that the Unit was not doing manufacturing work but job work of marble tiles. Accordingly rejected the application. The respondent preferred an appeal against the decision of the D.L.S.C. before the Tax Board, Ajmer. During the pendency of the appeal in identical matter of M/s. Zohara Marbles & Tiles Pvt. Ltd.., the State Level Screening Committee (hereinafter referred to as S.L.S.C.) directed to grant eligibility certificate to the said Unit. The case of the respondent Company was also considered in the meeting of the S.L.S.C on 18.3.98. The relevant extract of the meeting is placed on record as Annexure-4. The Committee took the decision as follows:-
'The Committee keeping in view the decision taken in the S.L.S.C. meeting held on 18.3.98 in the case of Zohara Marble and Tiles Pvt. Ltd. Village Amberi, Tehsil, Girwa, District, Udaipur decided that this case falls under the category of expansion and the D.L.S.C., Ra-jsamand may be advised accordingly. The Committee further decided that a general circular may be issued to all D.L.S.C.s in that regard.'
3. In the appeal filed by the respondent Unit, the Tax Board by judgment dated 20.2.99 held that the appellant Unit before installing a Gang Saw Machine on job work basis used to produce marble slabs and tiles, which was at a small scale. The Unit was expanded by installing the Gang Saw Machine. Thus, in the opinion of the Tax Board, the appellant Unit clearly held in the category of expansion. In view of the finding, the Board allowed the appeal and directed the D.L.S.C. to grant eligibility certificate.
4. The core question, which springs up for consideration is as to 'whether the respondent Unit is entitled to the eligibility certificate for availing the sales tax exemption and whether its activities falls within the definition of manufacture under Section 2(f) of the Rajasthan Sales Tax Act' learned arguments have been advanced on the said question by Mr. Sanjeev Johari learned counsel for the Department and Mr. N.L. Pokharna learned counsel for the assessee. Before i avert to the contentions raised by the learned counsel for the parties, it will be convenient to acquaint with the relevant provisions of the Rajasthan Sales Tax Act and the Incentive Scheme of 1989.
5. The Rajasthan Sales Tax Act, 1994 has been enacted to consolidate and amend the law relating to levy of tax on sale and purchase of goods in the State of Rajasthan. Section 2 is the dictionary provision. Sub-section (27) of Section 2 defines 'manufacture' as follows:-
'manufacture includes every processing of goods which bring into existence a commercially different and distinct commodity but shall not include such processing as may be notified by the State Government.'
Section 15 (Section 4 of the old Act) makes provisions for exemption of tax which reads as follows:-
'Exemption of tax- Notwithstanding anything contained in the Act, where the State Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette, exempt fully or partially, whether prospectively or retrospectively from tax the sale or purchase of any goods or class of goods or any person or class of persons, without any condition or with such condition as may be specified in the notification'
The State of Rajasthan in exercise of power conferred by Section 4(2) of the Rajasthan Sales Tax act, 1954 corresponding to Section 15 of the Rajasthan Sales Tax Act, 1994 notified the Sales Tax Incentive Scheme for the Industries, 1989 and exemptedthe individual Unit from payment of tax on the sale of goods 'Manufactured' by them within the State. Sub-clause (a) of Clause (2) defines New Industrial Unit as follows:-
'New Industrial Unit' means an Industrial Unit which commences commercial production during the operative period of the New Incentive Scheme but will not include-
(i) an Industrial Unit established by transferring or shifting or dismantling an existing industry; and
(ii) an Industrial Unit established on the site of an existing Unit manufacturing similar goods.
Sub-clause (f) of Clause (2) defines 'Expansion', which reads as under:
'Expansion' means increase in the value of fixed capital investment by not less than 25% of the net fixed assets of the existing project and accompanied by an increase in the production to the extent of at least 25% of the original licensed/registered capacity.
Explanation-The benefits of sales tax incentive for expansion shall be admissible to the eligible units only after they have achieved at least 85% of their licensed/registered capacity before expansion.
Clause 3 deals with the 'Applicability of the New Incentive Scheme', which reads as under:-
Applicability of the New Incentive Scheme-The new Incentive Scheme will be applicable (1) to New Industrial Units; (2) to Industrial Units going in for expansion or diversification; and (3) to Sick Units.
6. In order to avail benefit of Incentive Scheme by Expansion Unit, it must be established that it is a manufacturing Unit. The definition of the 'manufacture' under Section 2(27) of the Sales Tax Act as extracted above, clearly indicates that where any commodity is subjected to a processing for treatment with a view to its 'development or preparation for the market', it would amount to processing of commodity. The word manufacture is generally understood to mean as bringing into existence a new substance and does not mean merely a produce some change in substance. It appears from the Annexure-R/2 a decision of the Rajasthan Tax Board in M/s. Zohara Marbles & Tiles Pvt. Ltd. that the Commercial Taxes Department by Circular dated 9.1.95 has made clarification with respect to the manufacturing activity with reference to marble. The Circular as extracted in the said order is re-extracted as follows:-
'It clarifies that after excavation of marble from mines, the activity of cutting blocks into slabs and tiles falls within the ambit of manufacture but mere edge cutting and/of polishing of stone not be treated manufacturing activity.'
7. In the instant case, the job work with reference to marble does not involve any processing to bring into existence itself to a new substance for market, thus the activity of the respondent cannot be construed as 'manufacture' for the purpose of exemption from the sales tax under the Incentive Scheme of 1989. My view is buttressed from the decision of the Apex Court in Prestige Engineering (India) Ltd. and Ors. v. Collector of Central Excise, Meerut and Ors. (1), wherein it is held that the manufacture must be of those goods, which could be sold by it and not a manufacture of goods for others.
8. Recently the Apex Court in the case of Ashirwad Ispat Udyog v. State Level Committee (2), while dealing with the definition of manufacture given in the Madhya Pradesh General Sales Tax Act held that:-
'In the special definition of 'manufacture' given in Section 2(j) of the M.P. General Sales Tax Act, 1958 'manufacture' has been defined asincluding a process or manner of producing, collecting, extracting, preparing or making any goods, there can be no doubt whatsoever that 'collecting' goods does not result in producing of a new article. There is, therefore, inherent evidence in the definition itself, that the narrow meaning of the word 'manufacture' was not intended to be applied in the said Act. Again, the definition speaks of the process of lopping the branch of trees, cutting the trunk. The lopping of branches and cutting of trunks of trees also, self evidently, does not produce the new article. The clear words of the definition, therefore, must be given due weight and cannot be overlooked merely because in other contexts the word 'manufacture' has been judicially held to refer to the process of manufacture of new articles and it has been further held that the trading of iron and steel scrap by cutting it down by mechanical process into pieces there may be conventionally utilised in rolling mills and foundries such treatment makes saleable goods would in our opinion fall within the wide definition of 'manufacture' under Section 2(j) of the said Act.'
Thus, D.L.S.C., Rajsamand rightly held that the respondent assessee was not entitled to benefit of Incentive Scheme under the head of Expansion Unit.
9. The Rajasthan Tax Board has directed to issue an eligibility certificate under the Incentive Scheme considering the 'Unit as a new Unit.' In my view, the Tax Board was in obvious error in considering a new case of the assessee which was not before the D.L.S.C. A person who claims exemption from tax, it is for him to set up and establish that his case falls within the four corners of the statutory provisions providing exemption. The exemption provision must be construed strictly. In case of doubt or ambiguity, the benefit must go to the State. It is always on the person invoking the provision of exemption to establish factually and legally that it is covered by such exemption provision, because such exemption increases the tax burden on the other citizens of the State. My view is fortified by a decision of the Apex Court rendered by a Bench of three Judges in Novopanindia Ltd. Hyderabad v. Collector of Central Excise & Customs, Hyderabad (3). The Court held:-
'We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicals-and in Union of India v. Wood Papers referred therein - represents the correct view of law. The principle that in case of ambiguity, a taxir g statute should be construed in favour of the assessee-assuming that the said principle is goods and sound - does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must to the State. This is for the reason explained in Mangalore Chemicals and other decisions, viz., each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansrai Gordhandas v. H.H. Dave that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the Notification, i.e., by the plain terms of the exemption.'
10. As the respondent assessee did not claim benefit of the Incentive Scheme under the head New Industrial Unit before D.L.S.C., it was not open for the Rajasthan Tax Tribunal to entertain a new case of the assessee and direct the taxing authorities to give benefit of the Incentive Scheme under the head of New Industrial Unit.
11. It is lastly contended by Mr. Pokharna learned counsel that the case of the respondent assessee is covered by the decision of the Rajasthan Tax Board, Ajmer in M/s. Zohara Marbles case, which has been annexed with the reply as Annexure-R/2. At the first instance a decision of the Tax Board is not of binding nature. Similarly question of discrimination does not arise in following a decision, as if an illegality has come to the notice of this Court, the same cannot be allowed to perpetuate. Be that as, it may, I have read the judgment Annexure-R/2. In the said case, the assessee had set up his case for benefit of the Incentive Scheme under heading of New Unit before the D.L.S.C.. Thus, this case does not advance the case of the respondent. As to whether the respondent Unit is a New Unit or not, is purely a question of fact, as such Tribunal should not have permitted to raise such question being raised before the Tax Tribunal for the first time. Thus, I find no substance in the last contention as well advanced by Mr. Pokharna. The contention is rejected.
12. Consequently, this revision petition is allowed and order of the Rajasthan Tax Board Annexure-5 dated 22.2.1999 is quashed and set aside. The decision of the D.L.S.C., Rajsamand is restored.