STATE OF GUJARAT Vs. SHAH VELJIBHAI MOTICHAND LUNAWADA

JUDGEMENT

(1.) THE short question which has been referred to us is :- " Whether on the facts and in the circumstances of the case the sale of corrugated sheets by the opponent-firm was covered by entry 80 of Schedule B or entry 15 of Schedule B to the Bombay Sales Tax Act, 1953, prior to its amendment by Bombay Act 16 of 1957 ?"

(2.) THE short facts which have given rise to this reference are :- THE opponent-firm is a registered dealer dealing in iron and steel, gold and silver, vegetable ghee, corrugated iron sheets etc. It was assessed according to best judgment for the period from 1st April, 1956, to 31st March, 1957, by an order passed by the Sales Tax Officer, Godhra, on 30th June, 1962. THE assessee appealed to the Assistant Commissioner of Sales Tax which was dismissed and its revision was only partially allowed by the Deputy Commissioner of Sales Tax. THE Deputy Commissioner held that entry 15 of Schedule B relating to iron and steel only included primary products of the rolling mills which are not subjected to any process after rolling and, therefore, corrugated sheets were covered by entry 80 of Schedule B to the Act. In revision the Tribunal has however held that the corrugated sheets sold by the opponent would be "iron and steel" within the meaning of entry 15 of Schedule B to the Act. THE State has, therefore, required the Tribunal to make the aforesaid reference to this Court.

(3.) THE question before as relates to corrugated iron sheets. Corrugated only means wrinkled. It is still iron as it is only in wrinkled condition and the form which it has taken is the sheet form. THErefore, the corrugated iron sheets would be "iron", which has been given a treatment of corrugation and which is in the form of sheets. THE question before us is whether it can be said to be iron and steel within the meaning of entry 15. Entry 15 uses two words in close association, i. e. , iron and steel. Steel is made from iron by processing it. On a plain literal construction, this entry must cover iron and steel in all its forms. So long as the commodity continues to retain the character of iron and steel and it is only when it is manufactured into a different finished product or fabricated into a different article that it would cease to fall under this entry. THE question of interpretation of similar entries is now well settled. In Tungabhadra Industries Limited v. Commercial Tax Officer, ([1960] 11 S. T. C. 827.) the Supreme Court had to interpret the expression "groundnut oil" within the meaning of rule 18 (2) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, in the context of hydrogenated groundnut oil. It was contended that the hydrogenated oil was not "groundnut oil". At page 834 their Lordships pointed out that the physical state did not determine the identity of the commodity and so merely because Hydrogenated groundnut oil assumed a semi solid form, it did not cease to be groundnut oil. At page 835 their Lordships further pointed out that it was true that the change was both additive and inter-molecular and still it could hardly be said that rancid groundnut oil was not groundnut oil. It would undoubtedly be very bad groundnut oil but still it would be groundnut oil and if so it did not seem to accord with logic that when the quality of the oil was improved in that its resistance to the natural processes of deterioration through oxidation was increased, it should be held not to be oil. Thus, though the hydrogenated oil was refined groundnut oil after this process of hydrogenation, it was held that hydrogenated oil still continued to be groundnut oil notwithstanding the processing which was merely for the purposes of rendering the oil more stable, thus improving its keeping qualities for those who desire to consume groundnut oil. On a parity of reasoning, even if iron had been corrugated or put in there form of sheets it will still continue to be iron and shall corrugation or conversion into sheets to make it more acceptable to the customers would riot turn it into a different manufactured product of iron so lone as iron continues its essential character and the only change was one of corrugation or in shape, i. e. , of sheets. In State of Gujarat v. Sakarwala Bros. ([1967] 19 S. T. C. 24 at page 28.) this Court had to deal with entry 47 of Schedule A to the Bombay Sales Tax Act, 1959, which was "sugar in all its forms". THE Court hall to deal with patasa, harda and alchidana and to determine whether these commodities fell within the definition of "sugar" in entry 47. At page 28 this Court followed the decision of the Assam High Court in Kapildeoram Baijnath Prosad v. J. K. Das and Others, ([1954] 5 S. T. C. 365.) where the question had arisen regarding chira and muri as to whether they could be said to be covered by tile words "all cereals and pulses" including all forms of "rice". "muri" was parched, beaten rice, which involved the process of boiling paddy, its dehydration, frying and flattening. "muri" involved the process of soaking, boiling and dehydration of paddy and the removal of husks. As a result of these processes the article, rice, became edible and could the taken as food without any more cooking. Even the article, when so transformed, bore a different name and could not be commonly recognised as rice. Sarjoo Prosad, C. J. , observed that those commodities could be regarded more as forms of rice than products thereof and were, there fore, exempt from tax under the Assam Sales Tax Act, 1947. Relying upon this decision, this Court held that the word "form" would connote a visible aspect in which the thing existed or manifested itself. Sugar might manifest itself in the form of patasa as a result of certain simple processes being carried out. It might similarly manifest itself in the form of alchidana or small lumps of sugar or as harda. If sugar so manifests itself it could not be said that sugar had ceased to be sugar merely because it takes a particular shape or form which appeals to certain class of people on festive occasions. THE ratio of this decision of this Court was approved by their Lordships of the Supreme Court at page 33 in the decision in State of Gujarat v. Sakarwala Bros. , ([1967] 19 S. T. C. 24.) where their Lordships observed that the word "sugar" in item No. 47 was intended to include within its ambit all forms of sugar, that is to say, anger of any shape or texture, colour or density and by whatever name it is called. It was held that the view of this High Court was correct. While referring to the decision in Tungabhadra Industries ([1960] 11 S. T. C. 827) at page 34 their Lordships pointed out that notwithstanding the processing which was merely for the purpose of rendering the oil more stable, to be groundnut oil two conditions had to be satisfied, that it must be from groundnut and it must be "oil". THE hydrogenated oil was from groundnut and in its essential nature it remained an oil. It continued to be oil for use for the same purpose as groundnut oil which had not undergone the process, and the mere fact that hydrogenated oil was semi-solid did not alter its character as an oil. On a parity of reasoning when iron is corrugated to make it more acceptable to the customers or is put into the form of sheets, it still continues to retain the essential character of iron and we cannot hold that it would fall under the residuary entry 80 so long as it retained its essential character of "iron". We would also refer in this connection to the decision of the Supreme Court in State of Madhya Bharat v. Hiralal ([1966] 17 S. T. C. 313), where the question had arisen regarding scrap iron which was processed for convenience of sale. THE raw materials were only re-rolled to give them attractive and acceptable forms. THE question arose whether these bars, hats and plates sold were iron and steel exempted under the relevant notification. THEre was another entry, entry 39, relating to "goods prepared from any metal other than gold and silver" and it, therefore, included goods prepared from iron. At page 315 their Lordships pointed on that a comparison of the said two notifications brought out the distinction between raw materials of iron and steel and the goods prepared from iron and steel; while the former is exempted from tax, the latter is taxed. THErefore, iron and steel used as raw materials for manufacturing other goods were held to be exempted from taxation. So long as iron and steel continue to be raw materials, they enjoy the exemption. Scrap iron purchased was merely re-rolled into bars, hats and plates and they were processed only for convenience of sale. THE raw materials were only re-rolled to give them attractive and acceptable forms. THEy did not in the process lose their character as iron and steel. THE dealer sold "iron and steel" in the shape of bars, dots and plates and the customer purchased "iron and steel" in that shape and, therefore, it was held that the bars, hats and plates sold by the assessee were iron and steel exempted under the notification. This decision would completely clinch the issue as it in terms held that mere alteration of the shape is wholly immaterial or even the processing which makes the article attractive and acceptable to the customers would not matter. THE real test laid down by their Lordships is that so long as in any such processing the commodity does not lose the character as iron and steel, it must be held to be exempted. THE learned Advocate-General vehemently relied upon the fact that their Lordships had in the earlier line made a distinction between raw materials of iron and steel and the goods prepared from iron and steel, and iron and steel was exempted from tax while the latter were taxed. That distinction was drawn by their Lordships on the facts of that case as their Lordships were dealing with the relevant entries where such distinction had to be spelt out. THE test which their Lordships have relied is whether such processing, which is done to make the iron and steel attractive and acceptable to the customers by giving the shape of bars, flats and plates would make it lose the character of iron and steel. In fact relying on these conditions this very Division Bench in S. T. R. No. 19 of 1965 decided on 19th June, 1958, (Since reported as B. Das Laboratories v. THE state of Gujarat [1968] 22 S. T. C. 160.) held that "snuff" which was included in the definition of "tobacco" in all its forms, manufactured or not, did not lose its essential character when it was put in the form of a paste, viz. , creamy dental snuff, when the other ingredients were added, like flavouring agents, water and preservatives, to make the paste more marketable when the snuff was intended to be used for applying to the gums. It was in terms held that the said dental creamy snuff completely retained its essential character as snuff as flavoring agents, preservatives and water were added only to change its physical condition to make it more acceptable to the customers when intended for use as paste for application to the gums and there was no reason to hold that snuff had lost its essential character and a totally different article was produced which could not claim exemption. On a parity of reasoning we must hold that "iron" does not lose its essential character when it is put merely in the form of corrugated iron sheets, as it is merely an alteration of form or shape to make it more acceptable to the customer. It may be capable of independent use but that does not change it into a totally different manufactured product or a new fabricated article in which it can be said that iron and steel has lost its essential character.