Nissan Ferro Cast Ltd. and anr. Vs. Deputy Commissioner of - Court Judgment

Excerpt:
1. this is an application under section 8 of the west bengal taxation tribunal act, 1987 in the nature of one under articles 226 and 227 of the constitution of india. the question raised in this application is whether the authorities below were justified in rejecting the prayer for renewal of eligibility certificate (e.c.) for the period from july 30, 1997 to july 29, 1998 under section 41 of the west bengal sales tax act, 1994 (the 1994 act). the question involves two points, namely, whether the applicant no. 1 (company) can be said to manufacture rolled bars, and whether it has violated the relevant rules framed under the 1994 act by not maintaining separate accounts in respect of manufactured goods in its unit, by not maintaining serially numbered bills or cash memos, etc., in respect of sales of goods manufactured in its newly set up industrial unit and also by not maintaining production and stock registers. the relevant rules are rule 151(2)(a), 151(2)(b) and 161(2)(d) of the west bengal sales tax rules, 1995 (the 1995 rules).2. the prayer for renewal of e.c. under section 41 was rejected by respondent no. 2, the assistant commissioner of commercial taxes, special cell by order dated november 12, 1997. he held that rules 151(2)(a) and (b) of 1995 rules were violated for non-maintenance of separate accounts and separate serially numbered bills, cash memos, delivery notes or challans in respect of sales of goods manufactured in its newly set up industrial unit. he also held that rule 151(2)(d) was violated for non-production of production and stock registers, thereby making it impossible to check or verify the manufacturing activity.according to him, applicant-company did not maintain separate registers for stock of goods purchased for direct use in manufacture of goods and for stock of manufactured goods. in the absence of such registers the quantity of ingots manufactured could not be checked or verified. he held that rolled bars or steel bars were not manufactured in the unit of the applicant-company, because the company manufactured ingots in its unit but got the bars manufactured in other units. moreover, the company maintained a single set of serially numbered bills for sales of ingots manufactured in its unit and steel bars or rolled bars which were not manufactured in its unit. the assistant commissioner also held that the balance sheet as on march 31, 1997 showed fixed assets of rs. 3,07,17,455,95, but the applicant furnished details of fixed assets worth rs. 3,02,69,312.73 in connection with prayer for e.g. for the period from july 30, 1996 to july 29, 1997. no details about the difference of rs. 4,48,143.22 had been furnished. the assistant commissioner did not find on october 6, 1997 any manufacturing activity or operation of plant and machinery. hence, he rejected the prayer for e.c.3. being aggrieved by this order, the company preferred a revision before the deputy commissioner, respondent no. 1. it was contended before respondent no. 1 on behalf of the company that the job of conversion of steel ingots to steel bars (rolled bars) was done outside the company's own unit on payment of labour charges, but the company conducted the activities of sizing, straightening and colouring of the bars in its own unit. the contention was that under the central excise rules the company was not permitted to maintain separate accounts and registers for steel ingots and steel bars and was required to maintain a single set of accounts, books and registers for those items. thus, on behalf of the company, it was contended that there was no violation of rules 151(2)(a) and (b). similar contention was made that the company maintained separate stock registers in the factory according to central excise rules. this argument was made in relation of rule 151(2)(d).even though the ingots were converted to bars in other units, it was contended before respondent no. 1 that despite such conversion, the company was manufacturing the bars. respondent no. 1 held that the applicant-company was not manufacturing rolled bars or steel bars.hence, he agreed with the findings of respondent no. 2 that the aforesaid rules and specific conditions had been violated and that no separate accounts in respect of its own manufactured products, namely, steel ingots, were maintained according to the rules. therefore, respondent no. 1 confirmed the order of respondent no. 2. hence, this application. respondent no. 1 did not give his finding on the points taken by respondent no. 2 to the effect that (i) the discrepancy between the figure of fixed assets shown in the balance sheet and the figure supported by details in connection with issuance of e.c. for the earlier period has not been explained, and (ii) that on october 6, 1997 respondent no. 2 did not find manufacturing activity or operation of plant and machinery at the time of his visit to the unit. these two points were also not agitated by either side before us at the time of hearing. the points urged by the learned advocate, mr. g.c. mookerji on behalf of the applicant-company are (i) that the rolled bars were manufactured products of the company's own unit, although the ingots were converted to bars in other units, and (ii) no separate registers, accounts or sale bills, cash memos, etc., could be maintained for steel ingots in view of rule 52a of the central excise rules, 1944. he also maintained in that connection that stock registers were maintained according to the central excise rules. according to mr. mookerji, there is a conflict between central excise rules and the rules framed under 1994 act, and hence the applicant-company cannot be held to have violated rules 151(2)(a), (b) and (d). mr. m.c. mukhopadhyay, learned state representative appearing for the respondents, defended the orders of respondents 2 and 1 respectively and submitted that the bars were not the manufactured products of the applicant's unit, and there was violation of the aforesaid rules.4. under section 41 remission of tax is available to a registered dealer who manufactures goods (other than those which may be prescribed by rules) in a newly set up industrial unit established by him or in an expanded portion of an existing industrial unit in west bengal subject to such conditions and restrictions as may be prescribed by rules.there is no dispute that the applicant-company is a manufacturer of goods in its newly set up small-scale industrial unit located at village vadua, p.o. dankuni, district hooghly. there is also no dispute that the company has been manufacturing steel ingots in that unit. the controversy relates to manufacture of rolled bars or steel bars. if it has not manufactured rolled bars, it will not be entitled to remission of tax under section 41 for sales of such rolled bars. and, in that case, it will have a chain effect. if rolled bars are not manufactured by the applicant-company, in that case for the purpose of availing of the advantage of remission of tax, the company is required to maintain (a) separate accounts in respect of sales of steel ingots manufactured in its newly set up unit, (b) separate serially numbered bills or cash memos, delivery notes or challans in respect of sales of such manufactured goods, (c) purchase bills or cash memos in respect of purchase of the said goods including plant and machinery for direct use in manufacture of goods in that unit, and (d) separate registers for stock of goods purchased for direct use in manufacture of goods and for stock of goods manufactured in its newly set up unit. these requirements have been prescribed in rule 151(2). the assistant commissioner, respondent no. 2, referred to non-compliance of rule 151(2)(a), (b) and (d). the remission of tax available under section 41 is not an unconditional entitlement. it is subject to conditions and restrictions as may be prescribed by rules. those rules are rules 146 to 151. rule 146 requires that an e.c. is necessary to claim remission under section 41. under rule 148(2) an e.c. will be valid for a period not exceeding twelve months from the commencement of eligibility period. in the instant case, e.c. was granted for the first twelve months. the present dispute is regarding e.c. for the next period of twelve months. according to rule 148(3), if the competent authority is satisfied, inter alia, that the dealer has not complied with the requirements of the provisions of the act and the rules for the purpose of sub-section (1) of section 41, he shall reject the application for reason recorded in writing after giving the dealer a reasonable opportunity of being heard. regarding renewal of e.c., rule 149(3) lays down that the competent authority shall reject the application for renewal for reason recorded in writing, when he is not satisfied that the dealer is eligible for remission of tax under section 41(1). some of the conditions and restrictions mentioned in section 41(1) are prescribed in rule 151(2), already referred to. therefore, if the rolled bars are not manufactured by the applicant-company in its newly set up industrial unit, and if it has not maintained separate accounts in respect of sales of steel ingots which are goods manufactured in its unit, or it has not maintained separate serially numbered bills or cash memos, delivery notes or challans in respect of sales of aforesaid steel ingots, or it has not maintained separate registers for stock of goods purchased for use directly in manufacture of steel ingots and for stock of steel ingots manufactured in its unit, it has contravened the conditions and restrictions, and therefore, it is not entitled to remission of tax. it is undisputed that the company has not maintained separate accounts or separate serially numbered bills or cash memos, etc., or separate stock registers for purchases and also manufactured goods in respect of steel ingots alone. in other words, it is undisputed that the company has maintained common accounts, common serially numbered bills, cash memos, etc., and common stock registers in respect of steel ingots as well as rolled bars. there is a dispute regarding maintenance of stock registers which we will discuss later.5. the important question, therefore, is whether the rolled bars have been manufactured by the applicant-company in its own newly set up industrial unit. it is the case of the applicant that only 88 per cent (less than one per cent) of manufactured steel ingots are converted to rolled bars. this will be found in paragraph 7 of the application and mr. g.c. mookerji, applicant's advocate also orally submitted accordingly. it is admitted in paragraph 7 that the conversion of ingots into bars is made in different industrial units owned by different dealers. the applicant, however, claims that it "ultimately finished the same by further processing like sizing, polishing, etc.".the expression "manufacture" has been defined in 1994 act in section 2(17). "manufacture" means producing, making, extracting or blending any goods or such processing in goods as may be prescribed, but it does not include a works contract or such manufactures or manufacturing as may be prescribed. it does not appear that any rules have been framed under section 2(17). the activity claimed to have been done by the applicant-company for finishing the rolled bars does not, in our opinion, amount to "producing, making, extracting or blending". the only question is whether such activity amounts to "processing". the definition apart, we may refer to collector of central excise, madras v. kutty flush doors & furniture co. (p) ltd. [1988] 70 stc 314 (sc) where it was held that "manufacture" implies a change, but every change is not manufacture. a new and different article must emerge having a distinct name, character or use. it is undisputed that the applicant-company sends steel ingots manufactured by it to different units for conversion thereof to rolled bars, and it is claimed that after receiving back the rolled bars, it does some finishing work to the same and sells them as rolled bars. that being the position, we must agree with respondents 2 and 1 respectively that the applicant-company did not manufacture in its own newly set up unit the rolled bars, even if the finishing work claimed by it was actually done. before such finishing work the goods were rolled bars and after the activity claimed to have been done by the applicant-company, the goods remained rolled bars. there has been no change whatsoever in the name or character or use of the goods. both are same commercial commodities. hence, we have no reason to disagree with the finding of respondents 2 and 1 on the above point.6. while the applicant has claimed before us that it has done some finishing job in respect of rolled bars, respondent no. 2 held in his order dated november 12, 1997 that : "the entire and final manufacturing process for steel bar is done outside the factory, that no processing or manufacturing activity for steel bar is made in his unit." respondent no. 2 further observed that the authorised representative of the applicant-company submitted before him that the company sent ingots through delivery challans to indoor steel forge (p) ltd., poddar udyog ltd., alloy steel rolling mill, saraf iron foundry and rolling, etc., and got the job of manufacturing activity done by them on payment of labour charges. this observation further strengthens the finding of respondent no. 2 that no processing activity was done by the applicant-company in its own unit in respect of steel bars or rolled bars. in the grounds of revision before respondent no, 1 at annexure pages 8 and 9, there is no statement about processing activity, if any, done by the applicant-company in respect of steel bars. from the revisional order dated april 16, 1998 passed by respondent no. 1, it appears that it was argued on behalf of the company before respondent no. 1 that the "finishing touch, i.e., sizing, polishing, etc." was done in the applicant's unit. respondent no. 1 did not discuss whether he was satisfied that even such finishing touch was given in the unit of the applicant, but (assuming that the claim was true) he observed that "the end-product remains rolled bar or steel bar, a product of another unit". as already stated, we agree with this finding. we also agree with respondent no. 1 that the decision of this tribunal in the case of meena jhunjhunwala v. additional commissioner of commercial taxes [1993] 91 stc 427 ; (1994) 27 sta 475, is not applicable to the present case.7. thus the rolled bars were not manufactured by the applicant-company.hence, the applicant-company merely sold the same. therefore, by maintaining common accounts and common serially numbered sale bills, cash memos, etc., for steel ingots as well as rolled bars, the applicant clearly violated clauses (a) and (b) of sub-rule (2) of rule 151. mr. g.c. mookerji, learned advocate for the applicant, argued only one point in this respect. by referring to rule 52a of the central excise rules, 1944 he argued that the applicant-company was obliged under that rule to maintain common accounts and common sale bills, cash memos, etc., mr. m.c. mukhopadhyay, learned state representative appearing for the respondents opposed this contention. it is well-known that the central excises and salt act, 1944 and the rules framed thereunder deal with manufacture or production of goods and excise duty thereon and they have no applicability to sales of goods or sales tax.he referred to the following portion of rule 52a of the central excise rules, 1944 : "goods to be delivered on an invoice.--(1) no excisable goods shall be delivered from a factory or a warehouse except under an invoice signed by the owner of the factory or his authorised agent : provided that when the excisable goods, other than those to which the provisions of chapter vii-a apply are removed on payment of duty, such invoice shall require to be countersigned by the proper officer. explanation.--in this rule and in any other rule, where the term invoice or gate pass, as the case may be, is used, it shall mean-- (i) assessee's own document such as invoice, challans, advice or other document of similar nature generally used for sale or removal of excisable goods and it shall contain all the particulars as required under the said act or in these rules ; or (ii) such other form as the central board of excise and customs may notify." moreover, according to sub-rule (2) of rule 52a, the invoice shall be made out in quadruplicate, according to sub-rule (5) of rule 52a, invoice shall be maintained in two sets--(i) one for clearance for home consumption and (ii) the other for clearance for export. as already noticed, rule 52a(1) requires that the invoice or gate pass shall be signed by the owner of the factory or his authorised agent. but sales tax law does not require that an invoice for sale must be signed by the owner of the factory or his authorised agent- it may be noted that the authorised agent of the owner of the factory is synonymous with the owner of the factory. for the purpose of sales tax laws no such document is required to be signed by the owner of the factory (his authorised agent acting also as such). what is the object of rule 52a its object is to prevent unauthorised delivery of manufactured goods from a factory or a warehouse by not paying excise duty. it has no concern with sale. mr. mookerji, applicant's advocate, submitted that there is a conflict between rule 52a of the central excise rules, 1944 and rule 151 of the west bengal sales tax rules, 1995. for one thing, there is not really any such conflict. an invoice is nothing but a gate pass. it is not required by central excise rule 52a that the goods delivered from a factory or a warehouse must be sold. if rule 52a has talked about sale or buyer, it has taken into cognizance the ground realities of trade. but the purpose of invoice or gate pass under central excise rule 52a is completely different from an invoice for sale. moreover, rule 52a does not require that there will be a common invoice or gate pass for excisable goods as well as non-excisable goods. only manufactured goods are excisable goods, for which invoice or gate pass is required for delivery from a factory or a warehouse.goods which are only sold (and not manufactured) are not excisable goods. excise duty is not levied thereon. no invoice or gate pass is required under rule 52a for such goods. therefore, rule 52a does not envisage those goods. since rolled bars have not been manufactured by the applicant-company and are not excisable goods, it was not required under central excise rule 52a to issue or sign invoice or gate pass for rolled bars.8. moreover, assuming that there is some kind of conflict between central excise rule 52a and rule 151 of 1995 rules, it must be realised that the two laws and the two sets of rules operate on completely separate fields, with no chance of overlapping. therefore, even if an invoice or gate pass is to be issued under central excise rule 52a, by applying the rule of harmonious construction, the apparent conflict should be resolved and the applicant-company will be required to maintain separate accounts and separate sale bills, cash memos, delivery notes or challans for the purpose of sales of goods manufactured in its own unit, namely, steel ingots, to fulfil the requirements of section 41(1) of 1994 act read with rule 151(2)(a) and (b). the applicant-company cannot be allowed to take the plea of central excise rule 52a, for violating rule 151(2} of 1995 rules. if it wants to take advantage of remission of tax under section 41, it must comply with rule 151 of 1995 rules. such being the position, we have no reason to differ with the findings in this respect of respondents 2 and 1 respectively.9. there is a small controversy about maintenance of separate stock registers of two kinds under rule 151(2)(d). respondent no. 2 recorded in his order dated november 12, 1997 that no such separate stock register was produced. mr. g.c. mookerji submitted that the observation of respondent no. 2 was not true in this respect. in paragraph 5 of the application applicant-company has stated that it maintains stock of goods purchased for manufacturing ingots and also for goods manufactured in its newly set up industrial unit. that statement goes counter to observation of respondent no. 2. there is no allegation that respondent no. 2 has any hostile relation with applicant-company.therefore, merely because a statement has been made by the applicant-company in the application, it is not possible for us to hold that the observation of respondent no. 2 was not true. the observation should be presumed to be true, because it has been recorded by a responsible quasi-judicial authority in regular course of his official act. nothing has been produced before us to establish that such separate stock registers were actually produced before respondent no.2. at pages 8 and 9 (the application for revision and grounds thereof) we find nothing relating to this contention. before respondent no. 1 at the revisional stage, it was contended on behalf of the applicant-company that there was no violation of rule 151(2)(d), because it was claimed that the company maintained separate stock registers in the factory according to excise rules, but we do not find any discussion on this point in the revisional order of respondent no.1. but what was the plea taken by respondent no. 1 the plea was that the applicant maintains separate stock registers in the factory according to excise rules (i.e., central excise rules). assuming that stock registers were maintained under these rules, it does not improve the applicant's case. firstly, the applicant is obliged to maintain separate stock registers for goods purchased for direct use in manufacture and for goods manufactured in its own unit under rule 151(2)(d). such stock registers may or may not be identical with stock registers to be maintained under central excise rules. respondent no. 2 and respondent no. 1 were examining whether applicant had complied with rule 151(2)(d) and not the central excise rules. therefore, non-production of such separate stock registers naturally compelled respondent no. 2 to hold that such stock registers as required under rule 151(2)(d) were not maintained, and there is nothing wrong in it.so, we do not understand why there is an allegation that the observation of respondent no. 2 in this respect is not true or not correct. it was the obligation on the part of the applicant-company to satisfy respondent no. 2 in this respect. he clearly failed to discharge the obligation.10. hence, we have no reason to interfere with the finding of respon-.dent no. 2 on this point, confirmed without discussion by respondent no. 1, that applicant-company violated rule 151(2)(d). mr. mookerji submitted that stock registers separately maintained under rule 151(2)(d) were, however, produced before respondent no. 1, but from his revisional order dated april 16, 1998 we do not find any such indication.11. in the result, the application is dismissed without any order for costs.

Judgment:
1. This is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 in the nature of one under articles 226 and 227 of the Constitution of India. The question raised in this application is whether the authorities below were justified in rejecting the prayer for renewal of eligibility certificate (E.C.) for the period from July 30, 1997 to July 29, 1998 under Section 41 of the West Bengal Sales Tax Act, 1994 (the 1994 Act). The question involves two points, namely, whether the applicant No. 1 (company) can be said to manufacture rolled bars, and whether it has violated the relevant rules framed under the 1994 Act by not maintaining separate accounts in respect of manufactured goods in its unit, by not maintaining serially numbered bills or cash memos, etc., in respect of sales of goods manufactured in its newly set up industrial unit and also by not maintaining production and stock registers. The relevant rules are Rule 151(2)(a), 151(2)(b) and 161(2)(d) of the West Bengal Sales Tax Rules, 1995 (the 1995 Rules).

2. The prayer for renewal of E.C. under Section 41 was rejected by respondent No. 2, the Assistant Commissioner of Commercial Taxes, Special Cell by order dated November 12, 1997. He held that rules 151(2)(a) and (b) of 1995 Rules were violated for non-maintenance of separate accounts and separate serially numbered bills, cash memos, delivery notes or challans in respect of sales of goods manufactured in its newly set up industrial unit. He also held that Rule 151(2)(d) was violated for non-production of production and stock registers, thereby making it impossible to check or verify the manufacturing activity.

According to him, applicant-company did not maintain separate registers for stock of goods purchased for direct use in manufacture of goods and for stock of manufactured goods. In the absence of such registers the quantity of ingots manufactured could not be checked or verified. He held that rolled bars or steel bars were not manufactured in the unit of the applicant-company, because the company manufactured ingots in its unit but got the bars manufactured in other units. Moreover, the company maintained a single set of serially numbered bills for sales of ingots manufactured in its unit and steel bars or rolled bars which were not manufactured in its unit. The Assistant Commissioner also held that the balance sheet as on March 31, 1997 showed fixed assets of Rs. 3,07,17,455,95, but the applicant furnished details of fixed assets worth Rs. 3,02,69,312.73 in connection with prayer for E.G. for the period from July 30, 1996 to July 29, 1997. No details about the difference of Rs. 4,48,143.22 had been furnished. The Assistant Commissioner did not find on October 6, 1997 any manufacturing activity or operation of plant and machinery. Hence, he rejected the prayer for E.C.3. Being aggrieved by this order, the company preferred a revision before the Deputy Commissioner, respondent No. 1. It was contended before respondent No. 1 on behalf of the company that the job of conversion of steel ingots to steel bars (rolled bars) was done outside the company's own unit on payment of labour charges, but the company conducted the activities of sizing, straightening and colouring of the bars in its own unit. The contention was that under the Central Excise Rules the company was not permitted to maintain separate accounts and registers for steel ingots and steel bars and was required to maintain a single set of accounts, books and registers for those items. Thus, on behalf of the company, it was contended that there was no violation of rules 151(2)(a) and (b). Similar contention was made that the company maintained separate stock registers in the factory according to Central Excise Rules. This argument was made in relation of Rule 151(2)(d).

Even though the ingots were converted to bars in other units, it was contended before respondent No. 1 that despite such conversion, the company was manufacturing the bars. Respondent No. 1 held that the applicant-company was not manufacturing rolled bars or steel bars.

Hence, he agreed with the findings of respondent No. 2 that the aforesaid rules and specific conditions had been violated and that no separate accounts in respect of its own manufactured products, namely, steel ingots, were maintained according to the rules. Therefore, respondent No. 1 confirmed the order of respondent No. 2. Hence, this application. Respondent No. 1 did not give his finding on the points taken by respondent No. 2 to the effect that (i) the discrepancy between the figure of fixed assets shown in the balance sheet and the figure supported by details in connection with issuance of E.C. for the earlier period has not been explained, and (ii) that on October 6, 1997 respondent No. 2 did not find manufacturing activity or operation of plant and machinery at the time of his visit to the unit. These two points were also not agitated by either side before us at the time of hearing. The points urged by the learned Advocate, Mr. G.C. Mookerji on behalf of the applicant-company are (i) that the rolled bars were manufactured products of the company's own unit, although the ingots were converted to bars in other units, and (ii) no separate registers, accounts or sale bills, cash memos, etc., could be maintained for steel ingots in view of Rule 52A of the Central Excise Rules, 1944. He also maintained in that connection that stock registers were maintained according to the Central Excise Rules. According to Mr. Mookerji, there is a conflict between Central Excise Rules and the rules framed under 1994 Act, and hence the applicant-company cannot be held to have violated rules 151(2)(a), (b) and (d). Mr. M.C. Mukhopadhyay, learned State Representative appearing for the respondents, defended the orders of respondents 2 and 1 respectively and submitted that the bars were not the manufactured products of the applicant's unit, and there was violation of the aforesaid rules.

4. Under Section 41 remission of tax is available to a registered dealer who manufactures goods (other than those which may be prescribed by rules) in a newly set up industrial unit established by him or in an expanded portion of an existing industrial unit in West Bengal subject to such conditions and restrictions as may be prescribed by rules.

There is no dispute that the applicant-company is a manufacturer of goods in its newly set up small-scale industrial unit located at village Vadua, P.O. Dankuni, District Hooghly. There is also no dispute that the company has been manufacturing steel ingots in that unit. The controversy relates to manufacture of rolled bars or steel bars. If it has not manufactured rolled bars, it will not be entitled to remission of tax under Section 41 for sales of such rolled bars. And, in that case, it will have a chain effect. If rolled bars are not manufactured by the applicant-company, in that case for the purpose of availing of the advantage of remission of tax, the company is required to maintain (a) separate accounts in respect of sales of steel ingots manufactured in its newly set up unit, (b) separate serially numbered bills or cash memos, delivery notes or challans in respect of sales of such manufactured goods, (c) purchase bills or cash memos in respect of purchase of the said goods including plant and machinery for direct use in manufacture of goods in that unit, and (d) separate registers for stock of goods purchased for direct use in manufacture of goods and for stock of goods manufactured in its newly set up unit. These requirements have been prescribed in Rule 151(2). The Assistant Commissioner, respondent No. 2, referred to non-compliance of Rule 151(2)(a), (b) and (d). The remission of tax available under Section 41 is not an unconditional entitlement. It is subject to conditions and restrictions as may be prescribed by rules. Those rules are rules 146 to 151. Rule 146 requires that an E.C. is necessary to claim remission under Section 41. Under Rule 148(2) an E.C. will be valid for a period not exceeding twelve months from the commencement of eligibility period. In the instant case, E.C. was granted for the first twelve months. The present dispute is regarding E.C. for the next period of twelve months. According to Rule 148(3), if the competent authority is satisfied, inter alia, that the dealer has not complied with the requirements of the provisions of the Act and the Rules for the purpose of Sub-section (1) of Section 41, he shall reject the application for reason recorded in writing after giving the dealer a reasonable opportunity of being heard. Regarding renewal of E.C., Rule 149(3) lays down that the competent authority shall reject the application for renewal for reason recorded in writing, when he is not satisfied that the dealer is eligible for remission of tax under Section 41(1). Some of the conditions and restrictions mentioned in Section 41(1) are prescribed in Rule 151(2), already referred to. Therefore, if the rolled bars are not manufactured by the applicant-company in its newly set up industrial unit, and if it has not maintained separate accounts in respect of sales of steel ingots which are goods manufactured in its unit, or it has not maintained separate serially numbered bills or cash memos, delivery notes or challans in respect of sales of aforesaid steel ingots, or it has not maintained separate registers for stock of goods purchased for use directly in manufacture of steel ingots and for stock of steel ingots manufactured in its unit, it has contravened the conditions and restrictions, and therefore, it is not entitled to remission of tax. It is undisputed that the company has not maintained separate accounts or separate serially numbered bills or cash memos, etc., or separate stock registers for purchases and also manufactured goods in respect of steel ingots alone. In other words, it is undisputed that the company has maintained common accounts, common serially numbered bills, cash memos, etc., and common stock registers in respect of steel ingots as well as rolled bars. There is a dispute regarding maintenance of stock registers which we will discuss later.

5. The important question, therefore, is whether the rolled bars have been manufactured by the applicant-company in its own newly set up industrial unit. It is the case of the applicant that only 88 per cent (less than one per cent) of manufactured steel ingots are converted to rolled bars. This will be found in paragraph 7 of the application and Mr. G.C. Mookerji, applicant's Advocate also orally submitted accordingly. It is admitted in paragraph 7 that the conversion of ingots into bars is made in different industrial units owned by different dealers. The applicant, however, claims that it "ultimately finished the same by further processing like sizing, polishing, etc.".

The expression "manufacture" has been defined in 1994 Act in Section 2(17). "Manufacture" means producing, making, extracting or blending any goods or such processing in goods as may be prescribed, but it does not include a works contract or such manufactures or manufacturing as may be prescribed. It does not appear that any rules have been framed under Section 2(17). The activity claimed to have been done by the applicant-company for finishing the rolled bars does not, in our opinion, amount to "producing, making, extracting or blending". The only question is whether such activity amounts to "processing". The definition apart, we may refer to Collector of Central Excise, Madras v. Kutty Flush Doors & Furniture Co. (P) Ltd. [1988] 70 STC 314 (SC) where it was held that "manufacture" implies a change, but every change is not manufacture. A new and different article must emerge having a distinct name, character or use. It is undisputed that the applicant-company sends steel ingots manufactured by it to different units for conversion thereof to rolled bars, and it is claimed that after receiving back the rolled bars, it does some finishing work to the same and sells them as rolled bars. That being the position, we must agree with respondents 2 and 1 respectively that the applicant-company did not manufacture in its own newly set up unit the rolled bars, even if the finishing work claimed by it was actually done. Before such finishing work the goods were rolled bars and after the activity claimed to have been done by the applicant-company, the goods remained rolled bars. There has been no change whatsoever in the name or character or use of the goods. Both are same commercial commodities. Hence, we have no reason to disagree with the finding of respondents 2 and 1 on the above point.

6. While the applicant has claimed before us that it has done some finishing job in respect of rolled bars, respondent No. 2 held in his order dated November 12, 1997 that : "The entire and final manufacturing process for steel bar is done outside the factory, that no processing or manufacturing activity for steel bar is made in his unit." Respondent No. 2 further observed that the authorised representative of the applicant-company submitted before him that the company sent ingots through delivery challans to Indoor Steel Forge (P) Ltd., Poddar Udyog Ltd., Alloy Steel Rolling Mill, Saraf Iron Foundry and Rolling, etc., and got the job of manufacturing activity done by them on payment of labour charges. This observation further strengthens the finding of respondent No. 2 that no processing activity was done by the applicant-company in its own unit in respect of steel bars or rolled bars. In the grounds of revision before respondent No, 1 at annexure pages 8 and 9, there is no statement about processing activity, if any, done by the applicant-company in respect of steel bars. From the revisional order dated April 16, 1998 passed by respondent No. 1, it appears that it was argued on behalf of the company before respondent No. 1 that the "finishing touch, i.e., sizing, polishing, etc." was done in the applicant's unit. Respondent No. 1 did not discuss whether he was satisfied that even such finishing touch was given in the unit of the applicant, but (assuming that the claim was true) he observed that "the end-product remains rolled bar or steel bar, a product of another unit". As already stated, we agree with this finding. We also agree with respondent No. 1 that the decision of this Tribunal in the case of Meena Jhunjhunwala v. Additional Commissioner of Commercial Taxes [1993] 91 STC 427 ; (1994) 27 STA 475, is not applicable to the present case.

7. Thus the rolled bars were not manufactured by the applicant-company.

Hence, the applicant-company merely sold the same. Therefore, by maintaining common accounts and common serially numbered sale bills, cash memos, etc., for steel ingots as well as rolled bars, the applicant clearly violated clauses (a) and (b) of sub-rule (2) of Rule 151. Mr. G.C. Mookerji, learned Advocate for the applicant, argued only one point in this respect. By referring to Rule 52A of the Central Excise Rules, 1944 he argued that the applicant-company was obliged under that rule to maintain common accounts and common sale bills, cash memos, etc., Mr. M.C. Mukhopadhyay, learned State Representative appearing for the respondents opposed this contention. It is well-known that the Central Excises and Salt Act, 1944 and the rules framed thereunder deal with manufacture or production of goods and excise duty thereon and they have no applicability to sales of goods or sales tax.

He referred to the following portion of Rule 52A of the Central Excise Rules, 1944 : "Goods to be delivered on an invoice.--(1) No excisable goods shall be delivered from a factory or a warehouse except under an invoice signed by the owner of the factory or his authorised agent : Provided that when the excisable goods, other than those to which the provisions of Chapter VII-A apply are removed on payment of duty, such invoice shall require to be countersigned by the proper officer.

Explanation.--In this rule and in any other rule, where the term invoice or gate pass, as the case may be, is used, it shall mean-- (i) assessee's own document such as invoice, challans, advice or other document of similar nature generally used for sale or removal of excisable goods and it shall contain all the particulars as required under the said Act or in these rules ; or (ii) Such other form as the Central Board of Excise and Customs may notify." Moreover, according to sub-rule (2) of Rule 52A, the invoice shall be made out in quadruplicate, According to sub-rule (5) of Rule 52A, invoice shall be maintained in two sets--(i) one for clearance for home consumption and (ii) the other for clearance for export. As already noticed, Rule 52A(1) requires that the invoice or gate pass shall be signed by the owner of the factory or his authorised agent. But sales tax law does not require that an invoice for sale must be signed by the owner of the factory or his authorised agent- It may be noted that the authorised agent of the owner of the factory is synonymous with the owner of the factory. For the purpose of sales tax laws no such document is required to be signed by the owner of the factory (his authorised agent acting also as such). What is the object of Rule 52A Its object is to prevent unauthorised delivery of manufactured goods from a factory or a warehouse by not paying excise duty. It has no concern with sale. Mr. Mookerji, applicant's Advocate, submitted that there is a conflict between Rule 52A of the Central Excise Rules, 1944 and Rule 151 of the West Bengal Sales Tax Rules, 1995. For one thing, there is not really any such conflict. An invoice is nothing but a gate pass. It is not required by Central Excise Rule 52A that the goods delivered from a factory or a warehouse must be sold. If Rule 52A has talked about sale or buyer, it has taken into cognizance the ground realities of trade. But the purpose of invoice or gate pass under Central Excise Rule 52A is completely different from an invoice for sale. Moreover, Rule 52A does not require that there will be a common invoice or gate pass for excisable goods as well as non-excisable goods. Only manufactured goods are excisable goods, for which invoice or gate pass is required for delivery from a factory or a warehouse.

Goods which are only sold (and not manufactured) are not excisable goods. Excise duty is not levied thereon. No invoice or gate pass is required under Rule 52A for such goods. Therefore, Rule 52A does not envisage those goods. Since rolled bars have not been manufactured by the applicant-company and are not excisable goods, it was not required under Central Excise Rule 52A to issue or sign invoice or gate pass for rolled bars.

8. Moreover, assuming that there is some kind of conflict between Central Excise Rule 52A and Rule 151 of 1995 Rules, it must be realised that the two laws and the two sets of rules operate on completely separate fields, with no chance of overlapping. Therefore, even if an invoice or gate pass is to be issued under Central Excise Rule 52A, by applying the rule of harmonious construction, the apparent conflict should be resolved and the applicant-company will be required to maintain separate accounts and separate sale bills, cash memos, delivery notes or challans for the purpose of sales of goods manufactured in its own unit, namely, steel ingots, to fulfil the requirements of Section 41(1) of 1994 Act read with Rule 151(2)(a) and (b). The applicant-company cannot be allowed to take the plea of Central Excise Rule 52A, for violating Rule 151(2} of 1995 Rules. If it wants to take advantage of remission of tax under Section 41, it must comply with Rule 151 of 1995 Rules. Such being the position, we have no reason to differ with the findings in this respect of respondents 2 and 1 respectively.

9. There is a small controversy about maintenance of separate stock registers of two kinds under Rule 151(2)(d). Respondent No. 2 recorded in his order dated November 12, 1997 that no such separate stock register was produced. Mr. G.C. Mookerji submitted that the observation of respondent No. 2 was not true in this respect. In paragraph 5 of the application applicant-company has stated that it maintains stock of goods purchased for manufacturing ingots and also for goods manufactured in its newly set up industrial unit. That statement goes counter to observation of respondent No. 2. There is no allegation that respondent No. 2 has any hostile relation with applicant-company.

Therefore, merely because a statement has been made by the applicant-company in the application, it is not possible for us to hold that the observation of respondent No. 2 was not true. The observation should be presumed to be true, because it has been recorded by a responsible quasi-judicial authority in regular course of his official act. Nothing has been produced before us to establish that such separate stock registers were actually produced before respondent No.2. At pages 8 and 9 (the application for revision and grounds thereof) we find nothing relating to this contention. Before respondent No. 1 at the revisional stage, it was contended on behalf of the applicant-company that there was no violation of Rule 151(2)(d), because it was claimed that the company maintained separate stock registers in the factory according to Excise Rules, but we do not find any discussion on this point in the revisional order of respondent No.1. But what was the plea taken by respondent No. 1 The plea was that the applicant maintains separate stock registers in the factory according to Excise Rules (i.e., Central Excise Rules). Assuming that stock registers were maintained under these rules, it does not improve the applicant's case. Firstly, the applicant is obliged to maintain separate stock registers for goods purchased for direct use in manufacture and for goods manufactured in its own unit under Rule 151(2)(d). Such stock registers may or may not be identical with stock registers to be maintained under Central Excise Rules. Respondent No. 2 and respondent No. 1 were examining whether applicant had complied with Rule 151(2)(d) and not the Central Excise Rules. Therefore, non-production of such separate stock registers naturally compelled respondent No. 2 to hold that such stock registers as required under Rule 151(2)(d) were not maintained, and there is nothing wrong in it.

So, we do not understand why there is an allegation that the observation of respondent No. 2 in this respect is not true or not correct. It was the obligation on the part of the applicant-company to satisfy respondent No. 2 in this respect. He clearly failed to discharge the obligation.

10. Hence, we have no reason to interfere with the finding of respon-.

dent No. 2 on this point, confirmed without discussion by respondent No. 1, that applicant-company violated Rule 151(2)(d). Mr. Mookerji submitted that stock registers separately maintained under Rule 151(2)(d) were, however, produced before respondent No. 1, but from his revisional order dated April 16, 1998 we do not find any such indication.

11. In the result, the application is dismissed without any order for costs.