Supreme Court of India
CHOWGULE & CO. PVT. LTD. & ANR.versusUNION OF INDIA & OTHERS (AND VICE VERSA)
- Citation
- 1980 INSC 226
- Decided
- 25 November 1980
- Disposal
- Disposed off
- Bench
- P N BHAGWATI
Holding
Blending of ore during loading is "processing" (though not manufacture) under Section 8(3)(b) and Rule 13, and the transport operations form an integral part of the processing, making the related goods eligible for inclusion in the Certificate of Registration.
Summary
Chowgule & Co. Pvt. Ltd., a mining company, sought inclusion of 36 items of goods in its Certificate of Registration under Section 8(3)(b) of the Central Sales Tax Act, claiming they were used in mining and processing of ore for export. The Sales Tax Officer allowed only 11 items, and subsequent revisions and the Judicial Commissioner allowed a few more, leaving 14 items disputed. The Supreme Court examined whether (1) blending ore during loading via a Mechanical Ore Handling Plant amounted to "manufacture or processing" within the meaning of the Act, and (2) whether the entire chain of mining, transport, and blending constituted an integrated process such that goods used throughout could be treated as used in processing. Applying the test from Mis. Pio Food Packers, the Court held that blending does not create a new commodity (hence not manufacture) but does constitute "processing" because the ore’s physical and chemical composition changes. It further held that transport of ore from the mine to the harbour is an essential part of the processing operation, so goods used in that transport qualify for inclusion. Consequently, the Court allowed Chowgule's appeal, dismissed the Union's appeal, and remitted the matter to the tax authorities to assess the remaining 14 items.
Issues considered
- Whether blending of ore during loading through the Mechanical Ore Handling Plant constitutes "manufacture or processing" of ore for sale under Section 8(3)(b) and Rule 13 of the Central Sales Tax Act.
- Whether the combined activities of mining, conveying ore to the river side, barging to the harbour, and blending/loading constitute an integrated process of mining and processing such that goods used in all phases are eligible for inclusion in the Certificate of Registration.
Legislation cited
- Central Sales Tax Act, 1956s. 13, s. 6, s. 7, s. 8
- Central Sales Tax Ruless. Rule 13
Subjects
central sales taxsection 8(3)(b)processingblendingore handling plantcertificate of registrationintegrated processminingtax exemption
Judgment
27 1
CHOWGULE & CO. PVT. LTD. & ANR.
t v.
UNION OF INDIA & OTHERS
(AND VICE VERSA)
November 25, 1980 B
(P, N. BHAGWATI, V. D. TULZAPURKAR AND R. S. PATHAK, JJ. ]
Central Sales Tax Act, 1956, section 8(3) (b) and rule 13-Whether the
blending of ore whilst loading it in the ship by means of the Mechanical Ore
Handling Plant corufl'tuted manufacture or processing of ore for sale within
the meaning of section 8(3)(b) of the Act and Rule 13-Whether the process c
of mining, conveying the mine ore from the mining site to the river side
carrying out by barges to the harbour and then blending and loading it into the
ship through the Mechanical Ore Handling Plant con�tituted one integrated
process of mining and manufacture or process of ore for sale, io that that
items of goods purchased for use in every phase of these integrated operations
could be said to be goods purchased for use in mining and manufacturing or
processing of ore for sale falling within the Scope and ambit of section 8(3) (b) D
and Rule 13.
The assessee is a Private Limited Company, carrying on business of mining
iron ore and selling it in the export market after dressing, washing, screening
· a!ld blending it. The extraction of iron ore in some of the mines is carried
on by mechanised process and at others by manual labour. The entire activity
of the assessee consisted of seven different operations, one following upOn
E
the other, namely, (i) extraction of ore from the mine; (ii) conveying the
ore to the dressing plant; (iii) washing, screening and dressing the ore; (iv)
conveying of the ore from the mine site to the river side; (v) transport of.
the ore from the river side to the harbour by means of barges; (vi) stacking
of the ore at the harbour in different stock piles according to its physical and
chemical composition; and (vii) blending of the ore from different stock piles
with a view to producing ore of the required specifications and loading it into
F
the ship by means of the Mechanised Ore Handling Plant.
Under Section 8 (! ) (b) of the Central Sales Tax Act, 1956 the assessee
would be liable to pay, in respect of goods purchased for use "in the maunfac
ture or processing of goods for sale in mining", a lower rate of sales tax at
3% of his turnover, if it is granted, under section 7 ( 3 ) , a Certificate of Regis·
tration by Sales Tax Officer specifying the class or classes of goods for the G
purpose of sub-section (1) of section 8 read with Rule 13.
The assessee, therefore, made an application to the Sales Tax Officer for
inclusion of 36 items of goods in the certificate of registration on the ground
that these items of goods were being purchased by it for use in mining ore and
processing it for sale in the export market, and hence they were goods falling
within section 8 (3 ) (b) of the Act and Rule 13. The Sales Tax Officer granted
H
mtiticate only in respect of 1 1 items and disallowed 25 items. In revision, the
Assistant Commissioner, Sales Tax, took the same view of the Sales Tax
272 SUPREME COURT REPORTS [1981] 2 S.C.R.
A Officer, reviewed all the 25 items disallowed and found that six more items
to be eligible for certification. The further revision before the Government
carried by the assessee failed. Thereupon the assessee filed a writ petition
in the court of Judicial Commissioner, Goa. The Judicial Commissioner
agreed \Vitb the views of the Sales Tax Authorities but on his scrutiny found
that 4 more items, out of 19 items rejected, to be eligible for certification.
Hence, the appeals by special leave, one by the assessee in respect of all the
a 15 items and another by the Union of India regarding the 4 items found to be
in order by the Judicial Commissioner.
Allowing the appeal of the assessee, dismissing the appeal of Union of
India and remitting the matter to the Tax Authorities for further scrutiny of
the 14 items pressed by the assessee, the Court
c HELD: (I) Applying the test laid down in Mis. Pio Food Packers [1980)
3 SCR p. 1271, namely, "Does the processing of the original commodity bring
into existence a commercially different and distinct commodity?", it is clear
that the blending of different qualities of ore possessing different chemical
and physical composition so as to produce ore of the contractual specifica-
tions cannot be said to involve the process of manufacture, since the ore that
is produced cannot be regarded as a commercially new and distinct commo-
D dity from the ore of different specifications blended together. What is pro-
duced as a result of blending is commercially the same article, namely, ore,
though with different specifications than the ore which is blended and hence
it cannot be said that any process of manufacture is involved in blending
of ore. [279G, 280B-D]
The Deputy Commissioner of Sales Tax v. Mis. Pio Food Packers, [1980]
E 3 SCR p. 1271, applied.
(2) Where any commodity is subjected to a process or treatment with a
view to its ''development of preparation for the market". it would amount to
processing of the commodity within the meaning of sec. 8(3)(b) and Rule 13.
The nature and extent of processing may vary from case to case; in one
case the processing may be slight and in another it may be extensive; but with
F each process suffered, the commodity wQuld experience a change. What is
neces.sary in order characterise an operation as "pr<>Ce$ing'' is that the commo-
dity must, as a result of the operation, experience some change. In this sense
word "processing" in section 8(3) (b) and Rule 13 should be understood as
it has not been defined in the Act. [280E, G-H, 281A-BJ
Om Prakash Gupta v. Commissioner of Commercial Tax~s, 16 Sales Tax
G Cases 935 (Cal.), approved.
(3) The blending of ore in the course of loading through the Mechanical
Ore Handling Plant amounted to "processing" of ore within the meaning of
section 8(3)(b) and Rule 13 and the Mechanical Ore Handling Plant fell
within the description of "machinery, plant, equipment" used in the processing
of ore for sale. Therefore, if any items of goods were purchased by the
assessee as being intended for use as "machinery, plant, equipment, tools,
H spare-parts, stores, accessories, fuel or lubricants" for the Mechanical Ore
Handling 'Plant, they would be eligible for inclusion in the Certificate of
Registration of the assessee. [282H, 283A-B]
CHOWGULE & CO. V. UNION 273
Diverse quantities of ore possessing different chemical and physical com- A
positions are blended together to produce ore of the requisite chemical and
physical composition demanded by the foreign purchaser and obviously as a
result of this blending, the quantities of ore mixed together in the course of
loading through the Mechanical Ore Handling Plant experience change in their
respective chemical and physical compositions, because what is poduced by such
bleading is ore of a different chemical and physical composition. When the
chemical and physical composition of each kind of ore which goes into the B
blending is changed, there can be no doubt that the operation of blending
would amount to "processing" of ore within the meaning of sec. 8 ( 3 ) (b} and
Rule 13. It is no doubt true that the blending of ore of diverse physical
and chemical composition is carried out by the simple act of physically mix-
ing different quantities of such ore on the conveyor belt of the Mechanical
Ore Handling Plant. But it is immaterial as to how the blending is done
and what process is utilised for the purpose of blending. What is material C
to consider is whether the different quantities of ore which are blended to
gether in the course of loading through the Mechanical Ore Handling Plant
undergo <1ny change in their physical and chemical composition as a result
of blending. Whatever be the means employed for the purpose of carrying
out the operation, it is the effect of the operation on the commodity that is
material for the purpose of determining whether the operation constitutes
"processing". I28!B-E, 282G-HJ D
Nilgiri Ceylon Tea Supplying Co. v. State of Bo1nbay, 10 Sales Tax Cases
500 (Born.) overruled.
(4). The machinery, vehicles, barges and other items of goods purchased
by the assessee for use in carrying the mined ore from the mining site to the
river side and fro·m the river side to the Marmagoa harbour fall within the E
description of goods intended for use in processing of ore for sale within the
meaning of sec. 8 ( 3 ) (b) aqd Rule 1 3 . If any of these items of goods are
purchased by the assessee as being intended for use as "machinery, plant,
equipment, tools, spare-parts, stores, accessories, fuel or lubricants" in
carrying the mined ore from the mining site to the river side and from the
river side to the Marmagoa harbour, they would qualify for inclusion in the
Certificate of Registration. [285D-B] F
The process of mining comes to an end when ore is extracted from the
mines, washed, screened and dressed in the dressing plant and stacked at the
mining site and the goods purchased by the assessee for use in the subsequent
operations could not therefore be regarded as goods purchased for use "in
mining". The requirement of sec. 8 ( 3 ) (b) and Rule 1 3 is that the goods
must be purchased for use ''in mining" and not use "in the business of
G
mining". It is only the items of goods purchased by the assessee for use in
the actual mining operation which are eligible for inclusion in the certificate
of registration under this head and these would not include goods purchased
by the assessee for use in the operations subsequent to the stacking of the
ore at the mining site. [283C-E]
Where a dealer is engaged both in mining operation as also in processing D
the mined ore for sale, the two processes being inter-dependent, it would
be e�i,ent!al {or carrying on the operation of processing that the ore should
II
274 SUPREME COURT REPORTS [1981J 2 S.C.R.
A ~e carried from. the mining site, mined ore for sale, the two processes being
~ter-dependent, it would be essential for carrying on the operation of proces-
smg t~at the ore should be carried from the mining site where the 1nining
operation comes to an end to the place where the processing is carried on and
that would clearly be an integral part of the operation of processing and
if any machinery, vehicles, barges and other items of goods are used for
carrying the ore from the mining site to the place of processing, they would
B clearly be goods used in processing of ore for sale. In the present case, the
mining of ore is done by the assessee with a view to processing the mined ore
through the Mechanical Ore Handling Plant at the Marmagoo harbour and
the entire operation of mining ore and processing the mined ore is one integ~
rated process of which transportation of the mined ore from the mining site
to the Marmagoa harbour is an essential part. [284A-D]
c Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes,
15 STC 259 (SC), followed.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1632 of
1973 and 167 of 1974.
D From the Judgment and Order dated 29th April, 1972 of the
Judicial Commissioner, Goa, Daman and Din at Panaji in Special
Civil Application No. 60 of 1970.
R. V. Pat~! and Mrs. Ali Verma for the Appellants in CA No.
1632/73 and for the Respondent in CA 107 /74.
E V. S. Desai, B. B. Ahuja and M. N. Shroff for the Appellants in
CA 10'//74 and for the Respondent in CA. 1632/73.
The Judgment of the Court was delivered by
BHAGWATI, J. These two appeals by special leave are directed
against a judgment of the Judicial Commissioner, Goa, Daman and
F Din, partly aUowing a writ petition filed by Chowgule & Co. Pvt. Ltd.
(hereinafter referred to as the assessee) for quashing an order of
the Lieutenant Governor, Goa, Daman and Din dated 22nd August ..
1970. The question which arises for determination in these two
appeals is a short one but in order to appreciate the arguments bear-
ing upon it, it is necessary to state a few facts giving rise to the contro.
G
versy between the parties.
The assessee is a private limited company carrying on business
•
of mining iron ore and selling it in the export market after dressing,
washing, screeni!llg and blending it. The assessee owns mines at
Sirigao, Pale and various other places in the territory of Goa. The
B extraction of ore from the mines at Sirigao and Pale is carried on by
mechanised process while the extraction of ore from the other mines is
done by manual labour. When the ore is extracted from the mi!lles it
CHOWGULE & co. v. UNION (Bhagwati, J.) 275
is carried to the dressing plant where it is washed, screened and dres- A
ICd and then it is stacked at the mining site from where it is carried by
conveyor belts to the river side for being carried by barges to the
Marmagoa harbour. Before the ore is carried from the mining site
to the river side, its chemical as well as physirnl composition is as-
certained by taking samples and testing them in the laboratories at
B
each major mine and this process is carried on every day roUBd the
clock in order to ascertain the chemirnl and physical composition of
the ore which comes to Marrnagoa, harbour. Since the chemical and
physical composition of the ore varies from mine to mine and even
within the same mine itself, intra mine blending of the ore is carried
out at the mining site with a view to arriving at a certain specifie<l c
chemical and physical composition. When the ore ca,rried by barges
. arrives at the Marmagoa harbour, it is stacked in diffierent stock-
piles according to its chemical and physical composition. Since
the assessee sells the ore only in the export market, it has to suppl,y
ore· to the foreign buyers in accordance with the specifications required
by them and therefore it is required to carry out blending of the ore D
· lllined by it in such a manner as to produce ore of the required che-
. mi.cal and physical composition. This operation of blending is carried
but by the assessee, not before the loading of the ore into the ship,
... but in the process of loading itself through the mechanical ore hand-
ling plant. What is done is to draw different quantities of ore from
·different stock piles and put them together in the mechanical ore E
. handling plant so that they get blooded in the process of loading and
the blended ore which is actually loaded into the ship i6 ore of the
~·
contractual chemical and physical composition. The mechanical ore
"
·:-.
handling plant thus performs a dual function, namely, blending of
ore from different stock piles containing ore of different chemical
and physical composition and loading of the blended ore into the ship
for delivery to the foreign buyers. It will thus be seen that the entire
activity of the assessee is broadly divisible into seven different opera-
tions, one following upon the other, namely, (i) extraction of ore
from the mine; (H) conveying the ore to the dressing plant; (iii)
washing, screening a,nd dressing the ore; (iv) conveying of the ore
G
from the mine site to the river side; (v) transport of the ore from
Ille river side to the harbour by means of barges; (vi) stacking
'tlf the ore at the harbour in different st6ck piles according to its
physical and chemirnl composition, and (vii) blending of the ore
~m differ~nt s!ock piles with a view to producing ore of the re-
qDU'ed specifications and loading it into the ship by means of the H
:mechanised ore handling plant. The question is whether goods pur-
cliased by the assessee for use in the above operations could be said
276 SUPREME COURT REPORTS [1981) 2 S.C.R.
A to be goods purchased for use "in the manufacture or processing of
goods for sale or in mining" so as to attract the lower rate of sales
tax under section 8 ( 1)(b) of the Central Sales Tax Act, 1956.
It would be convenient at this stage to set out the relevant provi-
sions of the Central Sales Tax Act, 1956 (hereinafter referred to as
B the Act) which have a bearing on the question before us. Section 6
provides that, ~ubject to the other provisions contained in the Act,
every dealer shitll be liable to pay tax under the Act on all sales of
goods other than electrical energy effected by him in the course of
interstate trade or commerce during any year. Section 7 provides for
registration of dealers and sub-section (1) of this section states that
C every dealer liable to pay tax under the Act shall make an application
for registration to such authority in the appropriate State as the
Central Government may specify and every such application shall con-
tain such particulars as may be prescribed. Sub-section (3) of sec-
tion 7 enacts that if the authority !O whom an application under sub-
section ( 1) is made is satisfied that the application is in conformity
D with the provisions of the Act and the Rules made thereunder, he
shall register the applicant and gmnt to him a certificate of registra-
tion in the prescribed form which shall specify the class or classes of
goods for the purposes of sub-section ( 1) of section 8. Section 8
provides inter alia as under and we are setting out here the relevant
E part of the section as it stood at the material time :
"Sec. 8(1} : Every dealer, who is in the course of inter-
state trade or commerce--
(a) s~lls to the Government any goods; or
(b) sells to a registered dealer other than the Govem-
F me!_lt goods of the description referred to in sub-
section (3),
shall be liable to pay tax under this Act, which shall
be 3 per cent of his tum-over.
( 3) The goods referred to in clause (b) of sub-sec.
G (1)-
(b) x x x are goods of the class or classes
specified in the certificate of registration of the
registered dealer purchasing the goods as being in-
B tended for re-sale by him or subject to any rules
made by the Central Government in this behalf,
for use by him in the manufacture or processing of
CHOWGULE & CO. v. UNION (Bhagwati, /,) 277
goods for sale or in mining or in the generation or A
distribution of electricity or any other form of
power.
Section 13 confers rule making authority on the Central Government
and by clause ( e) of sub-section ( 1) of that section, the Centr~l
Government is authorised to make rules providing for "the enumera-
tion of goods or class of goods used in the manufacture or processing
of goods for sa}e or in mining or in the generation or distr;bution of
electricity or any other form of power." Pursmmt to the authority
conferred by this provision, the Central Government has made Rule
13 which at tbe material time was in the following terms :
"Rule 13 : The goods referred to in clause (b) of sub- c
sec. ( 3) of section 8, which a registered dealer may purchase,
shall be goods intended for use by him as raw materials,
processing materials, machinery plant, equipment, tools,
stores, spare parts, accessories, fuel or lubricants, in the
manufacture or processing of goods for sale or in mining, or
in the generation of distribution of electricity or any other D
form of power."
The assessee made an application to the Sales Tax Officer on 14th
September 1967 for inclusion of 36 itenis of goods in the certificate
of registration on the ground that these items of goods were being
purchased by it for use in mining ore and processing it for sale in the
E
export market, and hence they were goods falling within secti'On 8(3)
(b) and Rule 13. It is obvious that if this application were granted
and the items of goods mentioned in the application were specified
in the certificate of registration, the dealer selling these goods to the
asscssee in the course of inter-State trade or commerce would be
liable to pay sales tax only at the rate of 3 per cent of the turnover
of those sales and the assessee in its turn would have to reimburse
the selling dealer only at the rate of 3 per cent of the sale price,
whereas otherwise the amount payable would be at a much higher
rat•o. The assessee therefore pressed this application before the Sales
Tax Omcer with a certain amount of vehemence, but the Sales Tax
Officer by his order dated 4th March 1968 granted specification only G
in respect of 11 items and disallowed the remaining 25 items. The
view taken by the Sales Tax Officer was that the blending of ore which
was done in the course of loading through the Mechanical Ore Hand-
ling Plant did not amount to manufacture or processing of ore and.
therefore, the only goods in respect of which specification could be
~_!aimed by the assessee in the certificate of registration were goods R
purchased for use in mining and since the process of mining ~ame
to an end when ore was extracted from the mines and washed screened
2-57 SCI/81 '
278 SUPREME COURT REPORTS [1981] 2 S.C.R.
A
and dressed in the dreS6ing plant and stacked at the mining site, the
goods purchased by the assessce for nse only in these operations· were
eligible for being specified in the Certificate of Registration and not
the goods purchased for use in any of the subsequent operations in-
cluding blending and loading through the Mechanical Ore Handling
Plant. The Sales Tax Officer held that only I 1 items o_f goods could
be regarded as goods purchased for use in mining and the remainin~
25 items of goods did not fall within this description and h~µce were
not includible in the Certificate of Registration. The assesscc preferred
a revision appl}_c~tion, but the Assistant Commissioner of s·ales Tax
who heard the revision application, took the same view as the Sales
c Tax Officer in regard to the nature of the operations can-ied on by
the assessee and holding that the assessee was entitled to inclusion in
the Certificate of Registration of only those items of goods which were
purchased for use in the process of mining (which ended with · the
stacking of the ore at the mining site after extraction, washing, screen-
ing and dressing), he examined the 25 items disallowed by the Sales
D Tax Officer with reference to this criterion and came to the conclu-
sion that 6 out of these 25 items were eligible for inclusion in tl1c
Certificate of Registration and he accordingly allowed the revision
application in respect of these 6 items and rejected it in respect of
the remaining 19 items. The assessce thereupon carried the matter
further in revision to the Government of Goa, Daman and Diu, but
E the Lieutenant Governor on behalf of the Government agreed with the
view taken by the Assistant Commissioner of Sales Tax and rejected
the revision applicativn by an order dated 22nd August 1970. This
led to the filing of a writ petition by the asscssee in the Court of the
Judicial Commissioner for quashing the Order of the Government and
F directing inclusion of the remaining 19 items in the Certificate of
Registration. The Judicial Commissioner took the same view as the
Sales Tax Authorities in regard to the nature of the operations carried
on by the assessee, but gave relief to the assessee in respect of 4
items of goods on the ground that they were goods purchased for use
in the process of mining and were therefore liable to be included in
G the Certificate of Registration. The result was that 15 items of
goods ultimately remained unincluded in the Certificate of Registration.
It is not necessary to reproduce here these 15 items of good in respect
of which the application of the asscssee was disallowed, but it is
sufficient to state that they were items Nos. 1, 2, 3, 5, 6, 8, 9, 10, 12,
14' 15 ' 16' 17' 19 and 20 in the list Ex. No. 6. The assessee being
H aggrieved by the disallowance of these 15 items preferred Appeal No.
1632 of 1973 after obtaining certificate from the Court of the Judicial
Commissioner. Item 9 which consisted of "Safety Boards and
• CHOWGULE & co. v: UNION (Bhagwati, !.) 279
Posters" was not pressed at the hearing of the appeal and hence the A
controversy between the parties before us centred round the remaining
14 items of goods only and the question ill whether these 14 items
of goods were eligible for inclusion in the Certificate of Registration.
The Union of India also felt aggrieved by the Order of the Judicial
·Commissioner allowing 4 items of goods to be included in the Certi-
ficate of Registration and hence it preferred Appeal No. 107 of 1974 B
.against the Order of the Judicial Commissioner to the extent to which
.it was adverse against it.
-
'
.'\ There are two questions which primarily arise for consideration in
these appeals. One is whether the blending of ore whilst loading it in c
the ship by means of the Mechanical Ore Handling Plant constituted
.manufacture or processing of ore for sale within the meaning of
-sec.8(3) (b) and Rule 13 and the other is whether the process of
mining, conveying the mined ore from the mining site to the river
side, carrying it by barges to the Marmagoa harbour and then blend-
ing and loading it into the ship through the Mechanical Ore Handling D
.Plant constituted one integrated process of mining and manufacture or
·processing of ore for sale, so that the items of goods purchased for
use in every phase of this integrated operations could be said to be
goods purchased for use in mining and manufacturing or processing
of ore for sale falling within the scope and ambit of section 8 ( 3) ( b)
E
and Rule 13, We sha,Jl begin with the consideration of the first ques-
tion, not because it has been formulated as a first question by us, but
because on the answer to it depends to a large extent the decision of
the second question.
The point which arises for consideration under the first question F
is as to whether blending o~ ore in the course of loading it into the
~hip through the Mechanical Ore Handling Plant constituted manufac-
ture or processing of ore. Now it is well settled as a result of several
•• decisions of this Court, the latest being the decision given on 9th May,
1980 in Civil Appeal No. 2398 of 1978-The Deputy Commissioner
G
of Soles Tax v. Mis Pio Food Packers(!) that the test for determining
whether manufacture can be said to have taken place is whether the
• commodity which is subjected to the process of manufacture can no
longer be regarded as the original commodity, but is recognised in the
tra<le as a new and distinct commodity. This Court speaking through
one of us (Pathak, J.) pointed out: "Commonly manufacture is the H
end result of one or more processes through which the original com-
(ll 11980) 3 S.C,R. 1271
280 SUPREME COURT REPORTS [1981] 2 S.C.R. •
A modity is made to pass. The nature and extent of processing may
vary from one case to another, and indeed there may be several stages
of processing and perhaps a different kind of processing at each stage.
With each process suffered, the original commodity experiences a
change. But it is only when the change, or a series of changes, take
the commodity to the point where commercially it can no longer be
B regarded as the original co!llmodity but instead is recognised as a new
and distinct article that a manufacture can be said to take place."
The test that is required to be applied is; does the processing of the
original commodity bring into existence a commercially different and
distinct commodity? On an application of this test, it is clear that
}.
the blending of different qualities of ore possessing differing chemical
c and physical composition so as to produce ore of tbs contractual speci-
fications cannot be said to involve the process of manufacture, since
the ore that is produced cannot be regarded as a commercially new
and distinct commodity from the ore of different specifications blended
together. What is produced as a result of blending is commercially
D the same article, namely, ore, though with different specifications than
the ore which is blended and hence it cannot be said that any process
of manufacture is involved in blending of ore.
It still remains to consider whether the ore blended in the course
of loading through the Mechanical Ore Handling Plant can be said
-
E to undergo processing when it is blended. The answer to this question
depends upon what is the true meaning and connotation of the word
"processing" in sec.8(3) (b) and Rule 13. The word has not been
defined in the Act and it must therefore be interpreted according to
its plain natural meaning. Websters' Dictionary gives the following
meaning of the word "preces_s", "to subject to some special process or
F treatment, to subject (especially raw material) to a process of manu-
facture, development or preparation for the market etc., to convert
into marketable form as live stock by slaughtering, grain by milling, '
·~
cotton by spinning, milk by pasteurizing fruits and vegetables by
sorting and repacking." Where therefore any co=odity is subjected
to a process or treatment with a view to its "development or prepara-
.
G tion for the market", as, for example, by sorting and repacking fruits
and vegetables, it would amount to processing of the commodity within
the meaning of sec. 8(3) (b) and Rule 13. The nature and extent of •
processing may vary from case to case; in one case the processing may
be slight and in another it may be extensive; but with each process
suffered, the commodity would experience a change. Wherever a
H commodity undergoes a change as a result of some operation perfonn-
ed on it or in regard to it, such operation would amount to processing
of tile commodity. The nature and extent of the change is not mate-·
CHOWGULE & co. v. UNION (Bhagwall, J.) 281
rial. It may be that camphor powder may just be compressed into A
camphor cubes by application of mechanical force or pressure without
addition or admixture of any other material and yet the operation may
amount to processing of camphor powder as held by the Calcutta
High Court in Om Parkash Gupta v. Commissioner of Commercial
Taxes,(') What is necessary in order to characterise an operation
as "processing" is that the commodity must, as a result of the opera- B
tion, experience some change. Here, in the present case, diverse
quantities of ore possessing different chemical and physical composi-
tions are blended together t\) produce ore of the requisite chemical and
physical composition demanded by the foreign purchaser and
obviously as a result of this blending, the quantities of ore mixed
together in the course of loading through the Mechanical Ore Handling
c
Plant experience change in their respective chemical and physical com-
positions, because what is produced by such blending is ore of a
different chemical and physical composition. When the chemical and
physical composition of each kind of o~e which goes into the blending
is changed, there can be no doubt that the operation of blending D
would amount to 'processing' of ore within the meaning of sec.
8(3) (b) and Rule 13. It is no doubt true that the blending of ore
of diverse physical and chemical compositions is carried out by the
simple act of physically mixing differenJ quantities of such ore on the
conveyor belt of the Mechanical Ore Handling Plant. But to our
mind it is immaterial as to how the blending is done and what process E
is utilised for the purpose of blending. What is material to consider
is whether the different quantities of ore which are blended together
in the course of loading through the Mechanical Ore Handling Plant
undergo any change in their physical and chemical composition as a
result of blending and so far as this aspect of the question is concern-
ed, it is impossible to argue that they do not suffer any change in their F
respective chemical and physical compositions.
The Revenue however relied on the decision of the Bombay High
• Court in Nilgiri Ceylon Tea Supplying Co. v. State of Bombay(').
The asscssees in this case were registered dealers in tea under the
G
Bombay Sales Tax Act, 1953 and they purchased· in bulk diverse
• brands of tea and without the application of any mechanical or chemi-
cal process, blended theso brands of different qualities according to a
certain formula evolved by them and sold the tea mixture in the market.
The question arose before the Sales Tax Authorities whether the
different brands of tea purchased and blended by the assessees for the
H
·(1) 16 Sales Tax Cases 935
l2) JO Sales Tax Cases 500
isi SUPREME COURT REPORTS [1981] 2 S.C.R.
A purpose of producing the tea mixture could be said to have been
'processed' after the purchase within the meaning- of the proviso let
sec. 8(a), so as to preclude the assessees from being entitled to,
deduct from their turn-over under section 8 (a) the value of the tea,
purchased by them. The High Court of Bombay held that the
different brands of tea purchased by the assessees could not be regard-
B ed as 'processed' within the meaning of the proviso to clause (a) of
sec. 8, because there was "not even application ~f mechanical force
so as to subject the commodity to a process, manufacture, develoP'"
ment or preparation" and the commodity remained in the same con•
dition. The argument of the Revenue before us was that this decision
the Bombay High Court was on all fours with the present case and
c ofif the blending of different brands of tea for the purpose of producing
a tea mixture in accordance with a formula evolved by the assessees
could not be regarded as 'processing' of tea. equally on a parity of f
reasoning, blending of ore of different chemical and physical compo-
sitions could not be held to constitute 'processing' of the ore. Now
D undoubtedly there is a close analogy between the facts of Nilgiri Tea
Company's case and the facts of the present case, but we do not think
we can accept the decision of the Bombay High Court in the Ni/girl
Tea Company's case as laying down the correct law. When different
brands of tea were mixed by the assessees in Nllgiri's Tea Company'a
case for the purpose of producing a tea mixture of a different kind and
E quality according to a formula evolved by them, there was plainly and
indubitably processing of the different brands of tea, because these
brands of tea experienced, as a result of mixing, qualitative change,
in that the tea mixture which came into existence was of different
quality and flavour thau the different brands of tea which went into
the mixture. There are it is true, some observations in the judgment
F of the Bombay High Court which seem to suggest that if instead of
manual application of energy in mixing the different brands of tea,
there had been application of mechanical force in producing the tea
mixture, the Court might have come to a different conclusion and
these observations were relied upon by the asselisee, since in the •
present case the lending was done by application of mechanical force,
G but we do not think that is the correct test to 1:-e applied for the purpose
of determining whether there is 'processing'. The question is not •
whether there is manual application of energy or there is application
of mechanical force. Whatever be the means employed for the pur-
pose of carrying out the operation, it is the effect of the operation on
the commodity that is material for the purpose of determining whether
II the operational constitutes 'processing'. We are clearly of the view
.
that the blending of ore in the course of loading through the Mechani-
cal Ore Handling Plant amounted to 'processing' of ore within the
•
• CHOWGULE & co. v. UNION (Bhagwati, J.) 283
meaning of sec. 8(3)(b) and Rule 13 and the Mechanical Ore Handl- A
ing Plant fell within the description of ''machinery, plant, equipment''
used in the processing of ore for sale. It must therefore follow as a
necessary corollary that if any items of goods were purchased by the
assessee as being intended for use as "machinery, plant, equipment,
tools, spare-parts, stores, acce§flories, fuel or lubricants" for the
Mechanical Ore Handling Plant, they would be eligible for inclusion B
in the Certificate of Registration of the assessee.
The question which then arises is as to whether items of goods
purchased by the assessce for use in carrying the ore from mining site
to the river side and from the river sid~ to the Marmagoa harbour
could be said to be goods purchased for use iu mining or in processing c
of ore for sale. Now there can be, no doubt, and indeed this could
not be seriously disputed that the process of mining comes to an end
when ore is extracted from the mines, washed, screened and dressed
in the dressing plant and stacked at the mining site and the goods
purchased by the assessee for use in the subsequen_t operations could
()
not therefore be regarded as goods purchased for use 'in mining'.
The requirement of sec. 8(3) (b) and Rule 13 is that the goods must
be purchased for use 'in mining' and not use 'in the business of
mining'. It is only the items of goods purchased by the assessee for
use in the actual mining operation which are eligible for inclusion in
the certificate of registration under this head and these would not
E
include goods purchased by the assessee for use in the operations sub-
sequent to the stacking of the ore at the mining si\e. This view finds
support from the decision of this Court in Indian Copper Corporatiun
Limited v. The Commissioner of Commercial Taxes. ( 1)
But the claim of the assessee for including in the Certificate of Regis-
trat10n items of goods purchased for use in carrying ore from mining site F
to the river side and from river side to the Marmagoa harbour was not
based solely on the gronnd that these items of goods are purchased for
use 'in mining'. The alten1ative contention of the assessee was tha:t these
• items of goods are purchased for use in processing of ore for sale.
The assessee submitted that mining of ore and processing it for the G
purpose of sale by carrying out blending through the Mechanical Ore
Handlin• Plant constitute one integrated process and carrying the ore
from th~ mining site to the river side and from the river side to the
Marmagoa harbour where the processing is being done, is part of this
integrat~d process and hence the items of goods purchased for use in
this latter operation are eligible for inclusion in the Certificate of Regis- B
tration. We think there is great force in this snbmission of the
(I) 15 STC 259.
•
284 SUPREME COURT REPORTS [1981) 2 S.C.R.
A assessee. Where a dealer is engaged both in mining operation as also
in processing the mined ore for sale, the two processes being inter-
dependent, it would be essential for carrying on 1he operation of pro-
cessing that the ore should be carried from the mining site mined ore
for sale, the two processes being inter-dependent, it would be essential
for carrying on the operation of processing that the ore should be
B carried from the mining site where the mining operation comes to end
to the place where the processing is carried on and that would clearly
be an integral part of the operation of processing and if any machinery,
vehicles, barges and other items of goods are used for carrying the
ore from the mining site to the place of processing, they would clearly
be goods used in processing of ore for sale. It i~ obvious that, in the
>
c present sase, the mining of ore is done by the assessee with a view to
processing the mined ore throqgh the Mechanical Ore Handling Plant
at the Marmagoa harbour and the entire operation of mining ore and
processing the mined ore is one integrated process of which transporta-
tion of the mined ore from the mining site to the Marmagoa harbour is
D an essential part and, in the circnmstances, it is difficult to see how
the machinery, vehicles, barges and ()!her items of goods used for
transporting the mined ore from the mining site to the Marmagoa
harbour can be excluded from consideration on the ground that they
are not goods nsed in processing of ore for sale. The decision of this
Court in Indian Copper Corporation case (supra) is directly in point
E and completely supports this conclusion which we a're inclined to reach
on principle. The assessee in that case was a company which mined
copper and iron ore from its own mines, transported the ore to its factory
and manufactured finished products from the ore for sale. There
were several questions which arose for consideration, before the Court
in regard to the assessees' claim for inclusion of certain items of goods
F in its certificate of registration and one of them was whether the loco-
motives and motor vehicles used for removing ore from the place
where the mining operations were concluded to the factory where the
manufacturing process was going on, could be said to be goods intend-
ed· for use in the manufacture or proc.essing of goods for sale within •
the meaning of sec. 8(3) (b) and Rule 13·. This Conrt held that they
were goods falling within this description so as to be entitled to inclu-
sion in the Certificate of Registration of the assessec and Shah, J.
speaking on behalf of the Court gave the following reasons for taking
this view·
"We are also of the opinion that in a case where a dealer
fl is engaged both in mining operations and in the manufactur-
ing process-the two processes being inter-dependent-it would
be impossible to exclude vehicles which are used for
• CHOWGULE & co. v. UNION (Bhagwati, !.) 285
removing from the place where the mining operations are con- A
cluded to the factory where the manufacturing process starts.
It appears that the process of mining ore and m'lnufacture
with the aid of ore copper goods is an integrated process and
there would be no ground for exclusion from the vehicles
those which are used for removing goods to the factory after
the mining operations are concluded. Nor is there any B
ground for excluding locomotives and motor-vehicles used in
carrying finished products from the factory. The expression
"goods intended for use in the manufacturing or processing
of goods for sale" may ordinarily include such vehicles as ,
are intended to be used for removal of processed good> from
the factory to the place of storage. If this be the correct c
view, the restrictions imposed by the High Court in respect
of the vehicles and also the spare parts, tyres and tubes
would not be justifiable."
These R:asons apply with equal force in the present case and
strongly support the conclusion that the machinery, vehicles, barges D
and other items of goods purchased by the assessee for use in carrying
the mined ore from the mining site to the river side and from the river
side to the Marmagoa harbour fall within the description of goods
intended for use in processing of ore for sale within the meaning of
sec. 8(3) (b) and Rule 13. If any of these items of goods are purchased E
by the assessee as being intended for use as "machinery, plant, equip-
ment, tools, spare-parts, stores, accessories, fuel or lubricants" in
carrying the mined ore from the mining site to the river side and
from the river side to the Marrnagoa harbour, they woulp qualify for
inclusion in the Certificate of Registration.
F
It is in the light of this discussion that the question whether the
14 items of goods disallowed by the Sales Tax Authorities and the
Judicial Commissioner are eligible for inclusion in the Certificate of
• Registration has to be decided. We do not however think any useful
purpose will be served by ourselves examining each of these 14 items
for the purpose of deciding whether, according to the principles enun- G
ciated by us, any of them qualifies for being included in the Certificate
of Registration. That is a matter which can appropriately be deci-
Jed by the Sales Tax Officer in the light of the principles laid down
by us and it need not occupy our time here. We accordingly allow
the appeal of the assessee and direct the Sales Tax Officer to examine
these 14 items o~ goods and detennine in the light of the principles H
laid down in this judgment whether any of these 14 items of goods is
liable to be included in the Certificate of Registration. So far as the
286 SUPREME COURT REPORTS [1981] 2 S.C.R
A appeal of the Union of India is concerned, we do not think that the·
Judicial Commissioner was in error in giving relief to the assessee in
respect of 4 items of goods, since these items of goods were clearly
goods intended for use in the process of mining and were rightly
directed to be included in the Certificate· of Registration. The appeal
of the Union of India will accordingly stand dismissed. Since the
B assessee has substantially succeeded, the fair order of costs would be
that the Revenue must pay the costs of the assesscc throughout.
V.D.K. C.A. 1632/73 allowed and
C.A. 107 /74 dismissed.
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