Mani Mohan Saha and ors. Vs. Commercial Tax Officer, Malda - Court Judgment

Excerpt:
1. this is an application under section 8 of the west bengal taxation tribunal act, 1987, in which the applicant has challenged the orders dated june 28, 1988, april 10, 1991 and november 21, 1996 passed by the commercial tax officer, malda charge, the assistant commissioner, commercial taxes, siliguri circle and the west bengal commercial taxes appellate and revisional board, respectively. the applicant has prayed for an order quashing the three orders.2. the case of the applicants is that they, under the name and style of m. saha and co., carry on the business of selling mixture fertiliser.during the twelve months ending on the last day of chaitra 1390 b.s.the said firm purchased fertilisers of different varieties which are required for the purpose of cultivation and then sold them in mixture form after mixing them in the required proportion. to adjust the proportion, the use of fillers like sand or stone powder often became necessary. a mixture fertiliser popularly known as n.p.k. was sold by the firm after mixing the constituent fertilisers nitrogen, phosphate and potash in the proportion of 8 : 8 : 8 manually by means of shovels.the mixture fertiliser was marketed under the brand name "m.s.c. 8 : 8 : 8".3. the commercial tax officer, malda, by his order dated june 28, 1988, levied tax for the assessment period of 12 months ending on the last day of chaitra, 1390 b.s. on an estimated sale of rs. 3 lakhs and imposed a token penalty of rs. 50 only for alleged late filing of return for the preceding month. an appeal was preferred against the said assessment order. by his order dated april 10, 1991, the assistant commissioner, commercial taxes, siliguri circle was pleased to set aside the token penalty of rs. 50. however, he held that the levy of tax on the sale of fertiliser mixture amounting to rs. 3 lakhs was justified. he also remanded the case back to the commercial tax officer regarding the exemption granted by the c.t.o. on other sales worth rs. 10,95,361.75.4. being aggrieved by this appellate order, the applicants moved the west bengal commercial taxes appellate and revisional board ; but the board by its order dated november 21, 1996 refused to interfere with the order of the assistant commissioner, commercial taxes, siliguri circle. being aggrieved by this order, the applicant has approached this tribunal for quashing all the three orders passed by the respondents as indicated earlier.5. the respondents in their affidavit-in-opposition have submitted that it is an admitted case of the applicant that he mixes fertilisers of different varieties, with or without sand and/or any other filler and thereby produces a new variety of fertiliser. it is an admitted fact that to produce such new variety of fertiliser mixtures of different fertilisers in a particular proportion have to be prepared. such newly produced fertiliser has a distinct name in the market and its characteristics are also different from the constituent fertiliser and fillers consumed. the process of mixing undertaken by the applicant, though manually, is of such a nature that it produces a commodity altogether different from any and all of the raw materials consumed. it cannot be said that the commodity which emerges as a result of processes undertaken by the applicant is not a new commodity. the new commodity also may fall under the class of "fertiliser" but it is not the same variety of fertiliser which has gone into its making.it is further submitted by the respondents that the impugned assessment order having been set aside by the assistant commissioner, the assessing authority is required to pass fresh assessment order in accordance with the provision of law and while passing such fresh assessment order the assessing authority is competent to go into all aspects of transactions made by the applicant. it is also submitted that the impugned appellate and revisional orders were passed by the appellate and revisional authorities after duly appreciating the legal and factual position of the case and therefore there is no legal infirmity in their orders.in their affidavit-in-reply, the applicants have generally reiterated their case.6. in the course of the arguments, mr. j. sengupta and mr. m.l.bhattacharyya, learned advocates for the applicant, argued that the reference by the assistant commissioner, commercial taxes, in his order dated april 10, 1991 to the cases involving the tamil nadu general sales tax act, 1959, was irrelevant and non-applicable to the present case because the said act is not in pari materia with the west bengal sales tax act, 1954. the impugned order dated november 21, 1996 passed by the west bengal commercial taxes appellate and revisional board also, they argued, suffered from the same defects ; as the cases relied on by them involving the tamil nadu general sales tax act, 1959 should have no relevance whatsoever to a case arising under the west bengal sales tax act, 1954 (in short, "the 1954 act") particularly when the two acts are not in part materia when touching upon the points of dispute in the instant case. according to them "sale price" used in relation to a dealer in the 1954 act envisages the amount of money consideration for the sale of notified commodities manufactured, made or processed by him. but physically mixing fertilisers, with the help of shovels, could not fall within the ambit of manufacturing, making or processing. since the definition of "sale price" according to section 2(d) of the 1954 act is not applicable to such sale or rather resale of fertiliser mixture, the commodity sold by the applicants could not be taxed. they argued that the definition of "sale" as given in section 2(n) of the tamil nadu general sales tax act and item no. 21 of the first schedule to the tamil nadu general sales tax act being significantly different from the corresponding entries in the 1954 act, the decision of the supreme court in the tamil nadu cases was not applicable to the instant case.7. mr. k.k. sana, learned advocate for the respondents, on the other hand, argued that the decision of the supreme court in the case of shaw wallace & co. ltd, [1976] 37 stc 522 is directly relevant in this case.he has argued that the facts involved in that case were identical to the facts of the present case and that the ratio of the supreme court judgment in that case was squarely applicable to the instant case. mr.sana argued that the ingredients used for the preparation of mixture fertiliser were triple super phosphate, super phosphate, moosory phos, urea, ammonium sulphate, calcium ammonium nitrate and muriate of potash. all these are, he submitted, no doubt, chemical fertilisers but they are not used for identical purposes. thus ammonium sulphate and calcium ammonium nitrate and urea cannot supply potassium and phosphorus to the soil. similarly, muriate of potash will supply only potassium to the soil while triple super phosphate, super phosphate will be effective in supplying phosphorus to the soil. the type of chemical fertiliser to be applied to the soil will naturally depend upon the nature of the soil and the nutrient element in which such soil is deficient. the fertiliser mixture npk 8 : 8 : 8 is obviously capable of supplying to the soil all the three nutrient elements, viz,, nitrogen, phosphorus and potassium and therefore it is not the same article as the ingredients composing it. it is also a different commercial product as a person who needs urea only or muriate of potash only for his agricultural practices would not purchase the fertiliser mixture msc 8 : 8 : 8 for meeting his need. it is, therefore, commercially a different article from the ingredients used in preparing the mixture.8. both the sides have referred to the judgment of the supreme court in the shaw wallace & co. ltd. [1976] 37 stc 522. in that case the appellant prepared fertiliser mixture by dry mixing various chemical fertilisers [shown as sub-items (1) to (15) of item no. 21 of the first schedule to the tamil nadu general sales tax act, 1959] and fillers like china clay, gypsum, etc., at its mixing works manually by means of shovels according to a standard formula approved by the director of agriculture. the appellant claimed that as the fertiliser mixture prepared by it could not be said to be a commodity different from the ingredients composing the mixture and as the components of the mixture purchased within the state had suffered tax under section 3(2) read with item no. 21 of the first schedule to the act, the fertiliser mixture could not be taxed again. the high court disallowed the appellant's claim. on appeal to the supreme court, it was held that (i) it was only when a chemical fertiliser specified in sub-items (1) to (15) of item no. 21 of the first schedule was sold in the same condition in which it was purchased that it was not subject to a fresh levy ; (ii) the question whether there was any manufacturing process involved in the preparation of any fertiliser mixture or whether shovel mixing of the chemical fertilisers amounted to manufacture or not was wholly irrelevant for the purpose of the determination of the question in that case. the mixtures produced by the appellant were different from their component parts ; their properties and uses were also different and they were sold as different commercial products.therefore, the appellant was not entitled to the exemption claimed by it.9. it would be seen that the circumstances in the two cases are actually identical. in the instant case the taxable item is "fertilisers" (vide notification no. 1338-f.t. dated march 21, 1978) and fertilisers have not been defined in the west bengal sales tax act, 1954. according to the applicant, the fertiliser mixture prepared by the applicant is also a fertiliser and hence should not be liable to taxation once the component fertilisers have been subjected to tax.10. although the facts of the two cases are identical, the applicants have sought to distinguish this case from the case of shaw wallace & co. ltd. [1976] 37 stc 522 (sc), and other such cases decided by the supreme court on the ground that definition of "sale" given in the tamil nadu general sales tax act, 1959, and item no. 21 of the first schedule differ significantly from the corresponding items in the 1954 act. to appreciate the position the definition of "sale" as given in section 2(n) of the tamil nadu general sales tax act, 1959 is quoted below : " 'sale' with all its grammatical variations and cognate expressions means every transfer of the property in goods (other than by way of a mortgage, hypothecation, charge or pledge) by one person to another in the course of business for cash, deferred payment or other valuable consideration and includes........." in the 1954 act [section 2(1d)] " 'sale' means any transfer of property in notified commodities for cash or deferred payment or other valuable consideration, and includes............". the inclusive portions of the definitions in the two acts have not been reproduced here because they are not relevant to the issue. it would be apparent from the definitions given in the two acts that there is no difference between the two definitions of "sale" given in the two acts in so far as the transactions of sale considered in the instant case are concerned.11. again, the first schedule to the tamil nadu general sales tax act, 1959, is a list of the goods in respect of which single point tax is leviable under sub-section (3) of section 3. item 21 of that schedule is as follows : "item 21 of the first schedule : chemical fertilisers, that is to say-- (1) ammonium sulphate ; (2) ammonium nitrate ; (3) urea ; (4) ammonium chloride ; (5) sodium nitrate ; (6) calcium ammonium nitrate ; (7) super phosphate single ; (8) super phosphate triple ; (9) kotka phosphate ; (10) di-calcium phosphate ; (11) potassium chloride (muriate of potash) ; (12) sulphate of potash ; (13) mono-ammonium phosphate ; (14) di-ammonium phosphate ; (15) bone-meal ; (16) any mixture of one or more of the articles mentioned in items (1) to (15) and one or more of the organic manures. point of levy is at the point of first sale in the state, rate of tax is 3 1/2 per cent." in the 1954 act, the item which is notified is "fertilisers" and this has not been defined in the 1954 act.12. in view of the nature of item 21 of the tamil nadu general sales tax act, 1959 and the observations of the supreme court in the shaw wallace & co. ltd. case [1976] 37 stc 522 it would be clear that the ratio of the supreme court judgment in the shaw wallace case [1976] 37 stc 522, is quite general and is not particularly linked with the special identities of the chemical fertiliser as mentioned at sub-items (1) to (15) of item 21 of the first schedule to the tamil nadu act. the ratio of the supreme court in that case is clearly indicated in their decision that "fertiliser mixture, it would be noted, is not the same article as the ingredients composing it. it is sold as a different commercial product. it is put to a different use and has different chemical properties. as such, it has to be treated as a different article from its component parts. the question whether there is any manufacturing process involved in the preparation of any fertiliser mixture or whether shovel mixing of the chemical fertilisers amounts to manufacture or not is wholly irrelevant for the purpose of the determination of the question before us". the supreme court therefore observed that "it is only when a chemical fertiliser specified in sub-items (1) to (15) of item no. 21 of the first schedule is sold in the same condition in which it is purchased that it is not subject to a fresh levy".13. applying the ratio of the supreme court decision, in this case, a fertiliser can escape sales tax on the ground that it has already been taxed once only if the fertiliser is sold in the same condition in which it was purchased. in the instant case it is an admitted position that the fertilisers were mixed by the dealer and the fertiliser mixture was sold by him. it is true that in broad terms both the fertiliser mixture sold by the applicant as well as the specific ingredients used in preparing the mixture are classifiable as fertilisers but it must be held that the fertiliser mixture is not the same article as the ingredients out of which it is composed. it is needed for a different use and has different chemical properties and it is sold as a different commercial product. under the circumstances, the ratio of the decision of the supreme court judgment in shaw wallace & co. ltd. case [1976] 37 stc 522, applies with full force in the instant case in spite of fact that the items specified in sub-items (1) to (15) of item 21 of the first schedule to the tamil nadu act may not have been separately mentioned in the word "fertilisers" used in the notification issued under the 1954 act.14. in the light of what has been discussed above, we must hold that the decision of the appellate authority, viz., the assistant commissioner, commercial taxes, dated april 10, 1991 and the decision of the west bengal commercial taxes appellate and revisional board dated november 21, 1996 are legally valid and proper.the application is, accordingly, dismissed without any order as to costs.

Judgment:
1. This is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987, in which the applicant has challenged the orders dated June 28, 1988, April 10, 1991 and November 21, 1996 passed by the Commercial Tax Officer, Malda Charge, the Assistant Commissioner, Commercial Taxes, Siliguri Circle and the West Bengal Commercial Taxes Appellate and Revisional Board, respectively. The applicant has prayed for an order quashing the three orders.

2. The case of the applicants is that they, under the name and style of M. Saha and Co., carry on the business of selling mixture fertiliser.

During the twelve months ending on the last day of Chaitra 1390 B.S.the said firm purchased fertilisers of different varieties which are required for the purpose of cultivation and then sold them in mixture form after mixing them in the required proportion. To adjust the proportion, the use of fillers like sand or stone powder often became necessary. A mixture fertiliser popularly known as N.P.K. was sold by the firm after mixing the constituent fertilisers nitrogen, phosphate and potash in the proportion of 8 : 8 : 8 manually by means of shovels.

The mixture fertiliser was marketed under the brand name "M.S.C. 8 : 8 : 8".

3. The Commercial Tax Officer, Malda, by his order dated June 28, 1988, levied tax for the assessment period of 12 months ending on the last day of Chaitra, 1390 B.S. on an estimated sale of Rs. 3 lakhs and imposed a token penalty of Rs. 50 only for alleged late filing of return for the preceding month. An appeal was preferred against the said assessment order. By his order dated April 10, 1991, the Assistant Commissioner, Commercial Taxes, Siliguri Circle was pleased to set aside the token penalty of Rs. 50. However, he held that the levy of tax on the sale of fertiliser mixture amounting to Rs. 3 lakhs was justified. He also remanded the case back to the Commercial Tax Officer regarding the exemption granted by the C.T.O. on other sales worth Rs. 10,95,361.75.

4. Being aggrieved by this appellate order, the applicants moved the West Bengal Commercial Taxes Appellate and Revisional Board ; but the Board by its order dated November 21, 1996 refused to interfere with the order of the Assistant Commissioner, Commercial Taxes, Siliguri Circle. Being aggrieved by this order, the applicant has approached this Tribunal for quashing all the three orders passed by the respondents as indicated earlier.

5. The respondents in their affidavit-in-opposition have submitted that it is an admitted case of the applicant that he mixes fertilisers of different varieties, with or without sand and/or any other filler and thereby produces a new variety of fertiliser. It is an admitted fact that to produce such new variety of fertiliser mixtures of different fertilisers in a particular proportion have to be prepared. Such newly produced fertiliser has a distinct name in the market and its characteristics are also different from the constituent fertiliser and fillers consumed. The process of mixing undertaken by the applicant, though manually, is of such a nature that it produces a commodity altogether different from any and all of the raw materials consumed. It cannot be said that the commodity which emerges as a result of processes undertaken by the applicant is not a new commodity. The new commodity also may fall under the class of "fertiliser" but it is not the same variety of fertiliser which has gone into its making.

It is further submitted by the respondents that the impugned assessment order having been set aside by the Assistant Commissioner, the assessing authority is required to pass fresh assessment order in accordance with the provision of law and while passing such fresh assessment order the assessing authority is competent to go into all aspects of transactions made by the applicant. It is also submitted that the impugned appellate and revisional orders were passed by the appellate and revisional authorities after duly appreciating the legal and factual position of the case and therefore there is no legal infirmity in their orders.

In their affidavit-in-reply, the applicants have generally reiterated their case.

6. In the course of the arguments, Mr. J. Sengupta and Mr. M.L.

Bhattacharyya, learned advocates for the applicant, argued that the reference by the Assistant Commissioner, Commercial Taxes, in his order dated April 10, 1991 to the cases involving the Tamil Nadu General Sales Tax Act, 1959, was irrelevant and non-applicable to the present case because the said Act is not in pari materia with the West Bengal Sales Tax Act, 1954. The impugned order dated November 21, 1996 passed by the West Bengal Commercial Taxes Appellate and Revisional Board also, they argued, suffered from the same defects ; as the cases relied on by them involving the Tamil Nadu General Sales Tax Act, 1959 should have no relevance whatsoever to a case arising under the West Bengal Sales Tax Act, 1954 (in short, "the 1954 Act") particularly when the two Acts are not in part materia when touching upon the points of dispute in the instant case. According to them "sale price" used in relation to a dealer in the 1954 Act envisages the amount of money consideration for the sale of notified commodities manufactured, made or processed by him. But physically mixing fertilisers, with the help of shovels, could not fall within the ambit of manufacturing, making or processing. Since the definition of "sale price" according to Section 2(d) of the 1954 Act is not applicable to such sale or rather resale of fertiliser mixture, the commodity sold by the applicants could not be taxed. They argued that the definition of "sale" as given in Section 2(n) of the Tamil Nadu General Sales Tax Act and item No. 21 of the First Schedule to the Tamil Nadu General Sales Tax Act being significantly different from the corresponding entries in the 1954 Act, the decision of the Supreme Court in the Tamil Nadu cases was not applicable to the instant case.

7. Mr. K.K. Sana, learned advocate for the respondents, on the other hand, argued that the decision of the Supreme Court in the case of Shaw Wallace & Co. Ltd, [1976] 37 STC 522 is directly relevant in this case.

He has argued that the facts involved in that case were identical to the facts of the present case and that the ratio of the Supreme Court judgment in that case was squarely applicable to the instant case. Mr.

Sana argued that the ingredients used for the preparation of mixture fertiliser were triple super phosphate, super phosphate, moosory phos, urea, ammonium sulphate, calcium ammonium nitrate and muriate of potash. All these are, he submitted, no doubt, chemical fertilisers but they are not used for identical purposes. Thus ammonium sulphate and calcium ammonium nitrate and urea cannot supply potassium and phosphorus to the soil. Similarly, muriate of potash will supply only potassium to the soil while triple super phosphate, super phosphate will be effective in supplying phosphorus to the soil. The type of chemical fertiliser to be applied to the soil will naturally depend upon the nature of the soil and the nutrient element in which such soil is deficient. The fertiliser mixture NPK 8 : 8 : 8 is obviously capable of supplying to the soil all the three nutrient elements, viz,, nitrogen, phosphorus and potassium and therefore it is not the same article as the ingredients composing it. It is also a different commercial product as a person who needs urea only or muriate of potash only for his agricultural practices would not purchase the fertiliser mixture MSC 8 : 8 : 8 for meeting his need. It is, therefore, commercially a different article from the ingredients used in preparing the mixture.

8. Both the sides have referred to the judgment of the Supreme Court in the Shaw Wallace & Co. Ltd. [1976] 37 STC 522. In that case the appellant prepared fertiliser mixture by dry mixing various chemical fertilisers [shown as sub-items (1) to (15) of item No. 21 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959] and fillers like china clay, gypsum, etc., at its mixing works manually by means of shovels according to a standard formula approved by the Director of Agriculture. The appellant claimed that as the fertiliser mixture prepared by it could not be said to be a commodity different from the ingredients composing the mixture and as the components of the mixture purchased within the State had suffered tax under Section 3(2) read with item No. 21 of the First Schedule to the Act, the fertiliser mixture could not be taxed again. The High Court disallowed the appellant's claim. On appeal to the Supreme Court, it was held that (i) it was only when a chemical fertiliser specified in sub-items (1) to (15) of item No. 21 of the First Schedule was sold in the same condition in which it was purchased that it was not subject to a fresh levy ; (ii) the question whether there was any manufacturing process involved in the preparation of any fertiliser mixture or whether shovel mixing of the chemical fertilisers amounted to manufacture or not was wholly irrelevant for the purpose of the determination of the question in that case. The mixtures produced by the appellant were different from their component parts ; their properties and uses were also different and they were sold as different commercial products.

Therefore, the appellant was not entitled to the exemption claimed by it.

9. It would be seen that the circumstances in the two cases are actually identical. In the instant case the taxable item is "fertilisers" (vide Notification No. 1338-F.T. dated March 21, 1978) and fertilisers have not been defined in the West Bengal Sales Tax Act, 1954. According to the applicant, the fertiliser mixture prepared by the applicant is also a fertiliser and hence should not be liable to taxation once the component fertilisers have been subjected to tax.

10. Although the facts of the two cases are identical, the applicants have sought to distinguish this case from the case of Shaw Wallace & Co. Ltd. [1976] 37 STC 522 (SC), and other such cases decided by the Supreme Court on the ground that definition of "sale" given in the Tamil Nadu General Sales Tax Act, 1959, and item No. 21 of the First Schedule differ significantly from the corresponding items in the 1954 Act. To appreciate the position the definition of "sale" as given in Section 2(n) of the Tamil Nadu General Sales Tax Act, 1959 is quoted below : " 'Sale' with all its grammatical variations and cognate expressions means every transfer of the property in goods (other than by way of a mortgage, hypothecation, charge or pledge) by one person to another in the course of business for cash, deferred payment or other valuable consideration and includes........." In the 1954 Act [Section 2(1d)] " 'sale' means any transfer of property in notified commodities for cash or deferred payment or other valuable consideration, and includes............". The inclusive portions of the definitions in the two Acts have not been reproduced here because they are not relevant to the issue. It would be apparent from the definitions given in the two Acts that there is no difference between the two definitions of "sale" given in the two Acts in so far as the transactions of sale considered in the instant case are concerned.

11. Again, the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, is a list of the goods in respect of which single point tax is leviable under Sub-section (3) of Section 3. Item 21 of that Schedule is as follows : "Item 21 of the First Schedule : Chemical fertilisers, that is to say-- (1) Ammonium sulphate ; (2) ammonium nitrate ; (3) urea ; (4) ammonium chloride ; (5) sodium nitrate ; (6) calcium ammonium nitrate ; (7) super phosphate single ; (8) super phosphate triple ; (9) kotka phosphate ; (10) di-calcium phosphate ; (11) potassium chloride (muriate of potash) ; (12) sulphate of potash ; (13) mono-ammonium phosphate ; (14) di-ammonium phosphate ; (15) bone-meal ; (16) any mixture of one or more of the articles mentioned in items (1) to (15) and one or more of the organic manures. Point of levy is at the point of first sale in the State, rate of tax is 3 1/2 per cent." In the 1954 Act, the item which is notified is "fertilisers" and this has not been defined in the 1954 Act.

12. In view of the nature of item 21 of the Tamil Nadu General Sales Tax Act, 1959 and the observations of the Supreme Court in the Shaw Wallace & Co. Ltd. case [1976] 37 STC 522 it would be clear that the ratio of the Supreme Court judgment in the Shaw Wallace case [1976] 37 STC 522, is quite general and is not particularly linked with the special identities of the chemical fertiliser as mentioned at sub-items (1) to (15) of item 21 of the First Schedule to the Tamil Nadu Act. The ratio of the Supreme Court in that case is clearly indicated in their decision that "fertiliser mixture, it would be noted, is not the same article as the ingredients composing it. It is sold as a different commercial product. It is put to a different use and has different chemical properties. As such, it has to be treated as a different article from its component parts. The question whether there is any manufacturing process involved in the preparation of any fertiliser mixture or whether shovel mixing of the chemical fertilisers amounts to manufacture or not is wholly irrelevant for the purpose of the determination of the question before us". The Supreme Court therefore observed that "it is only when a chemical fertiliser specified in sub-items (1) to (15) of item No. 21 of the First Schedule is sold in the same condition in which it is purchased that it is not subject to a fresh levy".

13. Applying the ratio of the Supreme Court decision, in this case, a fertiliser can escape sales tax on the ground that it has already been taxed once only if the fertiliser is sold in the same condition in which it was purchased. In the instant case it is an admitted position that the fertilisers were mixed by the dealer and the fertiliser mixture was sold by him. It is true that in broad terms both the fertiliser mixture sold by the applicant as well as the specific ingredients used in preparing the mixture are classifiable as fertilisers but it must be held that the fertiliser mixture is not the same article as the ingredients out of which it is composed. It is needed for a different use and has different chemical properties and it is sold as a different commercial product. Under the circumstances, the ratio of the decision of the Supreme Court judgment in Shaw Wallace & Co. Ltd. case [1976] 37 STC 522, applies with full force in the instant case in spite of fact that the items specified in sub-items (1) to (15) of item 21 of the First Schedule to the Tamil Nadu Act may not have been separately mentioned in the word "fertilisers" used in the notification issued under the 1954 Act.

14. In the light of what has been discussed above, we must hold that the decision of the appellate authority, viz., the Assistant Commissioner, Commercial Taxes, dated April 10, 1991 and the decision of the West Bengal Commercial Taxes Appellate and Revisional Board dated November 21, 1996 are legally valid and proper.

The application is, accordingly, dismissed without any order as to costs.