M/S RAVI PRAKASH REFINERIES (P) LTD.versusSTATE OF KARNATAKA

                        [2016] 5 S.C.R. 565


          MIS RAVI PRAKASH REFINERIES (P) LTD.                        A
                                v.
                    STATE OF KARNATAKA
                  (CivilI Appeal No. 4760of2016)
                          MAY03,2016                                  B
       [DIPAK MISRA AND SHIVA KIRTI S~GH, JJ.]
       Central Sales Tax Act, 1956 - s.9(2) - Sale of 'Superjlower ~
De-oiled Cake' in the course of inter-State trade and commerce - In
respect of which assessee-seller produced Form 'C' - Assessing C
Officer levied tax on the said transaction at 2% giving benefit of
reduction in rate of the tax, in terms of Notification dated 31.5.2002,
on production of Form 'C' - Succeeding Assessing Officer reopened
the assessment opining that there was escapement of tax as inter-
State sale of 'Sunflower De-Oiled Cake' was liable to tax at 4%
and not 2% - Tax levied at 4% - Appellate Authority set aside order D
of re-assessment on the ground that change oJ opinion cannot be a
ground for re-opening of assessment in exercise of power u!s. 12-A
of Karnataka Sales Tax Act - Assessee preferred appeal seeking
finding on rate of tax on 'Oil-Cake' and 'De-Oiled Cake' - Appellate
Tribunal held that the 'Oil-Cake' in Notification dated 31.5.2002
                                                                        E
would include 'De-Oiled Cake' and allowed benefit of reduction in
rate of tax to 2% - High Court, in Revision, held that 'Oil-Cake'
and 'De-Oiled Cake' are two different .commodities and hence sale
of "De-Oiled Cake' would be subjected to tax at 4% - On appeal,
held: High Court rightly held that 'Oil-Cake' and ''De-Oiled Cake'
are two_ different commodities - 'De-Oiled Cake' did not fall within F
purview of the Notification and thus could not have -been taxed at
reduced rate - However. it was not permissible to re-open. the
assessment as the initial assessment was on the bas'is of available
material brought on record - Therefore, the assessee would reap
 the benefit of initial assessment - Central Sales Tax Notification
                                                                        G
No. FD 119 CSL 2002 (2) dated 31.52002 - Karnataka Sales Tax
 Act, 1957 - s.12-A.
      Partly allowing the appeal, the Court
      HELD: 1. The Government of Karnataka in exercise of its
                                                                       H
                               . 565
                  I .




566            SUPREME COURT REPORTS                      [2016] 5 S.C.R.


A     powers conferred by Section 8 (5) of the Central Sales Tax Act
      (CST Act), issued Notification No.119 FD 119 CSL 2002(2) dated
      31.05.2002 granting reduction in the rate of central sales tax
      payable on inter-State sales of goods specified in Serial Nos.1 to
      11 of the notification, subject to the condition that the Dealer
      produces declarations in Forms 'C' obtained from the registered
B
      Dealers/Government to whom the goods are sold. 'Oil Cake' is
      one of the goods specified in serial No. 6 of the Notification. [Para
      16)(574-A-B]
            2.1 There is a distinction between the 'Oil-Cake' and 'De-
      Oiled Cake' and they are two different commercial products. Thus,
c     the assessee cannot be allowed to advance a plea that the
      commercial parlance test should be adopted to determine the
      said goods for the purposes of CST Act. [Para 18)(576-E-F]
            Agricultural Produce Market Committee v. Biotor
            Industries Limited and Am: (2014) 3 SCC 732 - relied
D           on.
            2.2 From the Notification No. FD 119 CSL 2002 (2) dated
      31" May, 2002, it is evident that the competent authority while
      exercising power under sub-section (5) of Section 8 of the CST
      Act, has kept the reduction of tax qua 'De-Oiled Cake' from the
E     purview of Notification and has only provided 'Oil Cake' to be
      taxed at the reduced rate of tax. Thus, the goods have distinct
      and different identity which also get recognition from the
      Notification. The finding of the High Court, as regards 'Oil-Cake'
      and 'De~Oiled Cake' being different products, is correct. [Para
F     19, 21] [577-D-E, G-H]
            Mis Sterling Foods v. State of Karnataka (1986) 63 STC
            239 - distinguished.
            State of Karnataka v. Mis Goa Granites 2007 (5) VST
            434 (Kar); Mis Habeeb Protiens and Fats Extracts,
G           Hiriyur, Chitradurga District v. Commissioner of
            Commercial Taxes, Bangalore and Am: 2005 (58) Kar.
            L.J.155; Dy. CST v. Pio Food Packers 1980 SCR
            1271 = 1980 Suppl. SCC 174 - referred to.
            3. However, there should not have been reopening of
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   M/S RAVI PRAKASH REFINERIES (P) LTD. v. STATE OF                    567
                   KARNATAKA

assessment, as the assessing authority had expressed the opinion       A
with regard to the rate of tax on the 'De-Oiled Cake' while
scrutinizing 'C' Forms which is an expression of opinion on the
available materials brought on record. Therefore, the first
appellate authority as well as the Tribunal was' justified in
concurring with the said order. The Revenue had also not
                                                                        B
challenged the order passed by the Joint Commissioner. The
High Court has not expressed any opinion on this score.
Therefore, the assessee shall reap the benefit of initial assessment
as the same could not have been reopened. [Para 20, 21)(577-E-
F; 578-B]
   ~-,



      Nagaraja Overseals Traders v. The State of Mysore JJ              c
      STC 315; Mahaveer Drug House v. ACCT Gandhinagar,
      Bangalore (19941 93 STC 51 (Kar); State of Andhra
      Pradesh v. Ampro Food Products 96 STC 618;
      Giridharial Co. v. State ofAndhra Pradesh 97 STC 442;
      C. Sathiragu and Sons v. State of Andhra Pradesh 111              D
      STC 703; Somani Brothers v. State of Bihar 99 STC
      47; Eureka Forbes v. State of Bihar 119 STC 460 -
      relied on.
      Mis. Binani Industries Limited v. Assistant Commissioner
      of Commercial Taxes, VI Circle, Bangalore (2007) 6 VST            E
      783 - referred to.
                       Case Law Reference
      JJ STC 315                       relied on       Para6
      [1994) 93 STC 51 (Kar)           relied on       Para6
                                                                        F
      96 STC 618                       relied on       Para6
      97 STC 44                        relied on       Para6
      111 STC 703                      relied on       Para6
      99 STC 47                        relied on       Para6
      119 STC 460                      relied on       Para6            G

      (1986) 63 STC 239                distinguished Para7
      2007 (5) VST 434 (Kar)           referred to     Para7
      2005 (58) Kar.L.J. 155           referred to     Para7
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568            SUPREME COURT REPORTS                          [2016] 5 S.C.R.


A           (2007) 6 VST 783                    referred to      Para 14
            1980 SCR 271                        referred to      Para 15
            (2014) 3 sec 732                    relied on        Para 17
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4760
B     of2016.
           From the Judgment and Order dated 11.08.2011 of the High Court
      ofKarnataka at Bangalore in STRP No. 32 of2009.
           Dhruv Mehta, Sr. Adv., Ms. Anupama Dhruve, Yashraj Singh
      Deora (For Mis. Mitter & Mitter Co.), Pratap Venugopal, Ms. Surekha
c     Raman, Purushottam K. Jha, Anuj Sarma, Ms. Niharika (For Mis. K. J.
      John & Co.), Advs. for the Appellants.
           Basava Prabhu S. Patil, Sr. Adv., V. N. Raghupathy, Anirudh
      Sanganeria, Chinmay Deshpande, Advs. for the Respondent.
            The Judgment of the Court was delivered by
D
            DIPAK MISRA, .J. I. Delay condoned.
            2, Leave granted.
            3. The assessee-appellant is engaged in the manufacturing of
      refined edible oil by solvent extraction process and refining along with
E     trading in edible oil and oil-cake. For the assessment year ending 31-3-
      2003 the assessee had filed Revised Annual Return in Form 4, declaring
      the Gross Taxable Turnovers at Rs.19, 76,37,615-00 and Rs.1,60,93,055-
      00 respectively.
             4. As the factual .narration would show the appellant sold
 F    Sunflower De-oiled Cake (SF DOC) and several other goods in the
      course of inter-State trade and commerce and in the course of the said
      transaction the appellant produced 'C' Forms obtained from the dealers
      in inter-State sales. The assessee had admitted the liability of tax at 2
      per cent on the sale of SF DOC in the course of inter-State trade and
G     commerce. The Deputy Commissioner of Commercial Taxes
      (Assessment) Chitradurga, the assessing authority, had passed an order
      of assessment under Section 9(2) of the Central Sales Tax Act, 1956
      (for brevity, 'the CST Act') on 291h January, 2005, whereby it had
      expressed the view that a sum ofRs.4,75,68,764/- was subjected to tax
      at 2 per cent. The assessing officer had granted the benefit on production
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      MIS RAVI PRAKASH REFINERIES (P) LTD. v. STATE OF                          569
                KARNATAKA [DIPAK MISRA, J.)

of'C' Form in terms of the Notification No.FD 119 CSL2002{2) dated              A
31" May, 2002.
        5. After the order of assessment was passed, the succeeding
assessing officer formed an opinion that there was an escapement of
tax due to the reason that the inter-State sales of SF DOC was actually
liable to tax at 4 per cent and not at 2 per cent, which had been erroneously   B
adopted by the earlier assessing authority. Following the principles of
natural justice, he levied the tax at 4 per cent on the inter-State sales of
SF DOC.
       6. The aforesaid order was called in question in an appeal before
the Joint Commissioner of Commercial Taxes (Appeals), Davansere c
Division, Davangere under Section 20(5) read with Section 9 (2) of the·
CST Act. The Appellate Authority noted the submissions advanced on
behalf of the assessee as well as the revenue and thereafter referred to
Section 12-A of the Kamataka Sales Tax Act, 1957 (for short, 'KST
Act') and referred to the decisions in the cases of Nagaraja Overseals
Traders vs. The State of Mysore.1 Ma/1aveer Drug House vs. ACCT D
Gandhinagar, Bangalore, 1 State of Andlira Pradesh vs. Ampro
Food Products. 3 Giridlrarial Co. vs. State of Andhra Pradesh, 4 C.
Sathiragu and Sons vs. State ofAndhra Pradesh, J Somani Brothers
vs. State of Bihar. 6 Eureka Forbes vs. State of Bilrar7 and came to
hold that the change of opinion could not have been a ground for reopening E
of assessment in exercise of power under Section 12-A of the KST Act
and, accordingly, set aside the order of re-assessment.
       7. Though the assessee succeeded, yet it preferred an appeal,
being STA No.425 of 2006 before the Kamataka Appellate Tribunal,
Bangalore (for short, 'the tribunal'), as the first Appellate Authority had      F
not expressed any opinion with regard to rate of tax on oil-cake and de-
oiled cake. It was contended before the Tribunal that the oil cake and
de-oiled cake as per the commercial parlance are one and the same and,
therefore, the rate of tax has to be at 2 per cent and not 4 per cent. The
tribunal after noting the submissions referred to the schedule in the
 I   JJ STC 315                                                                  G
'[1994) 93 STC 51 (Kar)
3
   96 STC 618
' 97 STC 442
' 111STC703
 6
   99 STC 47
 7
   ll9STC460                                                                     H
570             SUPREME COURT REPORTS                          [2016] 5 S.C.R.



A     notification and the decision in Mis Sterling Foods vs. State of
      Karnataka, 8 State ofKarnataka vs. Mis Goa Granites9 , Mis Habeeb
      Protiens and Fats Extracts, Hiriyur, C/1itradurga District vs.
      Commissioner of Commercial Taxes, Bangalore and Anr. 10 and came
      to hold as under :
B            "Thus, we hold thatthe expression 'oil cake in sl. No. 6 of
             the CST Notification No. FD 119 CSL 2002(2) dated
             31.5.2002 would include also de-oiled cake and that
             therefore the reassessment order passed by the AA under
             CST Act, 1956 for the year 2002-03 in so far as itconcerned
             levy of CST at 4% on inter-State Sales of sunflower de-
c            oiled cake covered by C Forms by denying the benefit of
             reduction in the rate of CST to 2% granted in the
             Notification dated 31.05 .2002 is liable to be held
             unsustainable and set aside.

D
             Consequential to the decision taken by us as above, the
             appellate order of the learned FAA is liable for modification
             accordingly. As regards the reassessment order set aside
             by the learned FAA on the basis of lay that reassessment is
             not permissible by change of pinion, which is supported by
E            the several case laws cited in the appellate order itself, it
             need to be placed on record that Hon'ble Supreme Court
             oflndia has reiterated the said legal position that reopening
             of an assessment by change of opinion is not permissible in
             the recent judgment rendered in the case of Mis Binani
 F           Industries Ltd. Vs. Assistant Commissioner of Commercial
             Taxes, VI Circle, Bangalore and others (2007) 6 VST 783."
              8. On the aforesaid analysis, the tribunal issued the following
      directions:
             "(i) Reassessment order passed by the DCCT (Transition),
 G           Chitradurga under CST Act, 1956 for the year 2002-03 in
             respect of rate of CST levied at 4% on the turnover of

      ' {1986) 63 STC 239
      9
         2007 (5) VST 434 (Kar)
      10
          2005 (58) Kar.L.J. 155
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   MIS RAVI PRAKASH REFINERIES (P) LTD. v. STATE OF                         571
             KARNATAKA [DIPAK MISRA, J.]

      Rs.4, 75,68, 764 relating to inter-State sales of sunflower de-       A
      oiled cake covered by C Forms is modified to 2% allowing
      the benefit ofreduction in the rate of CST to 2% granted in
      the Notification No.FD 119 CSL 2002 (2) dated 31-5-2002.
      (ii) The appellate order passed by the FAA in CST AP 27/
      2005-06 dated 20-4-2006 shall stand modified accordingly.              B
      (iii) Directions are issued that the AA shall accordingly issue
      revised demand notice."
      9. The aforesaid order of tribunal was assailed before the High
Court in Revision Petition being STRP No. 32 of2009. Be it noted, the
High Court had formulated the following two substantial questions of         c
law:-
      (i) Whether, on the facts and in circumstances of the case,
      can it be held that the order dated 12. 7.2007 passed by the
      KamatakaAppellate Tribunal in STA 425/2006 allowing the
      appeal is correct and in accordance with law?                          D

      (ii) Whether on the fact and in circumstances of the case,
      can it be held that the Appellate Tribunal was right in law in
      ignoring that under the KST Act in the Second Schedule in
      serial No. I of Part 0, oil cake and de-oiled cake are listed
      under two separate sub-headings as two different                       E
      commodities?
       10. After deliberating on the aforesaid two questions, the High
Court referred to the provisions of the KST Act and the Notification
issued under Section 8(5) of the CST Act, distinguished the decisions
placed reliance upon by the first Appellate Authority and the tribunal as    F
well as the decision rendered by this Court in Mis Sterling Foods (supra)
and came to hold that there is distinction between oil cake and de-oiled
cake and they are two different commodities and not one and the same.
Elaborating the discussion, the Division Bench held thus:-
      "The contention that the commodities will have to be                   G
      understood in common parlance as understood by a common
      man is even harder to accept. What a common man
      understands need not necessarily mean what is understood
      in accordance with law. In the instant case, the framers of
      the schedule were aware of the distinction between oil cake
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572            SUPREME COURT REPORTS                           [2016) S S.C.R.


A           and de-oiled case. Accordingly, they have treated it as two
            different commodities. Therefore, to hold that the view of
            a common man has to necessarily over ride the view of the
            Legislature is difficult to accept. The Distinction in law
            has been made which requires to be followed. Oil cake
            and de-oiled case cannot stand extended to de-oiled cake.
B
            The impact of the notification reducing the tax impact was
            every well known when the benefit was granted. A
            notification has to be strictly construed. The Court cannot
            read into the notification what is not there. The notification
            is clear and unambiguous. Any attempt to read it otherwise
c           is not only uncalled for but would amount to redrafting the
            notification."
             Being of this view, it answered the two questions that were framed
      by it in favour of the Revenue and against the Assessee. The said
      judgment and order is the subject matter of challenge in this appeal by
D     special leave.
            11. We have heard Shri Dhruv Mehta, learned senior counsel
      along with Ms. Atrnpama, learned counsel for the appellant and Shri
      Basava Prabhu S. Patil, learned senior counsel along with Shri V.N.
      Raghupathy, learned counsel for the State.
E            12. First, we shall take up the issue pertaining to Section 12-A of
      the KST Act. Section 12-A(l) which is relevant forthe present purpose
      is extracted below:
            "l 2-A. Assessment of escaped turnover-(]) If the assessing
            authority has reason to believe that the whole or any part
F           of the turnover of a dealer in respect of any period has
            escaped assessment to tax or has been under-assessed or
            has been assessed at a rate lower than the rate at which it
            is assessable under this Act or any deductions or exemptions
            have been wrongly allowed in respect thereof, the assessing
G           authority may, notwithstanding the fact that the whole or
            part of such escaped turnover was already before the said
            authority at the time of the original assessment or re-
            assessment but subject to the provisions of subsection (2),
            at any time within a period of[eightyears] from the expiry
            of the year to which the tax relates, proceed to assess or
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      MIS RAVI PRAKASH REFINERIES (P) LTD. v. STATE OF                       573
                KARNATAKA [DIPAK MISRA, J.]

         re-assess to the best of its judgment the tax payable by the        A
         dealer in respect of such turnover after issuing a notice to
         the dealer and after making such enquiry as it may consider
         necessary."
       13. On a perusal of the aforesaid provision, it is limpid that it
permits re-opening of an assessment on the ground that if the assessee       B
has been assessed at a rate lower than the rate at which it is assessable
under Act. The rate of tax is four per cent. The assessee had filed the
return and the 'C' Forms claiming the benefit of the Notification dated
31.05.2002 in respect of inter-State sale of oil-cakes. The assessing
officer had accepted the 'C' Forms on verification and granted the
benefit. The assessing officer on a proper scrutiny has accept the 'C'        c
Forms on the basis of which reduced rate of tax was claimed. The
assessment was reopened as there was no escapement of tax due in
respect of inter-State sale in respect of SF DOC.
       14. Mr. Dhruv Mehta, learned senior counsel for the appellant,
would submit that once an assessment order was framed on all the              D
material available on record and the rate of tax was accepted, the view
expressed by the I" appellate authority which had got the stamp of
affirmance by the tribunal should be accepted to be correct more for the
reason the revenue had not challenged the order of assessment and that
apart the High Court has not appositely dealt with it. He would place         E
heavy reliance on the pronouncement in Mis. Bina11i Industries Limited
v. Assistant Commissio11er of Commercial Taxes, VI Circle,
Bangalore11 •
       15. It is submitted by Mr. Basava Prabhu S. Patil, learned senior
counsel, that claiming of benefit on production of'C' Forms had nothing       F
to do with the nature ofproduct that was sold. Learned senior counsel
would contend that the first Appellate Authority, as well as the tribunal,
has been erroneously guided that there has been change of opinion.
Learned senior counsel has submitted that the words "reason to believe"
have to be expansively understood to import a meaning to the provision,
for when the assessment has taken place at a rate lower than the rate at      G
which the turnover of a dealer is assessable, there can be reopening of
assessment.
          16. First, we shall proceed to consider the acceptability of the
 II   (2007) 6 VST 783
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574            SUPREME COURT REPORTS                          [2016] 5 S.C.R.


A     opinion expressed by the High Court. The Government ofKarnataka in
      exercise of its powers conferred by Section 8 (5) of the CST Act, issued
      Notification No.119 FD 119 CSL 2002(2) dated 31.05.2002 granting
      reduction in the rate of central sales tax payable on inter-State sales of
      goods specified in Serial Nos. I to 11 of the notification, subject to the
      condition that the Dealer produces declarations in Forms 'C' obtained
B
      from the registered Dealers/Government to whom the goods are sold.
      Be it noted oil cake is one of the goods specified in serial No. 6 of the
      notification.     Submission of Mr. Mehta, learned senior counsel is that
      the High Court has clearly erred in law by distinguishing the facts and
      by opining that the judgment in the case of Mis Habeeb Protiens (supra)
c     is not a decision in issue and an obiter. In the case of Mis Sterling
      Foods (supra), the question that arose for consideration was whether
      shrimps, prawns and lobsters subjected to processing like cutting of heads
      and tails, peeling, deveining, cleaning and freezing ceased to be the same
      commodity and became a different commodity for the purpose of the
      Central Sales Tax Act. The Court posed the question whether they still
D
      go under the description of shrims, prawns and lobsters or in other
      words, shrimps, prawns and lobsters would mean only raw shrimps,
      prawns and lobsters as caught from the sea or they also include process
      and frozen shrimps, prawns and lobsters. After referring to the various
      provisions and placing reliance on the decision in Dy. CST vs. Pio Food
E     Packers11 the Court held as under:-
             " ..... when the State Legislature excluded processed or
             frozen shrimps, prawns and lobsters from the ambit and
             coverage of Entry 13a, its object obviously was that the
             last purchases of processed or frozen shrimps, prawns and
 F           lobsters in the State should not be exigible to State Sales
             fax under Entry I 3a. The State Legislature was not at all
             concerned with the question as to whether processed or
             frozen shrimps, prawns and lobsters are commercially the
             same commodity as raw shrimps, prawns and lobsters or
             are a different commodity and merely because the State
 G           Legislature made a distinction between the two for the
             purpose of determining exigibility to State Sales Tax, it
             cannot be said that in commercial parlance or according to
             popular sense, processed or frozen shrimps, prawns and
       " 1980 Supp. sec 174
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   M/S RAVI PRAKASH REFINERIES (P) LTD. v. STATE OF                           575
             KARNATAKA [DIPAK MISRA, J.]

      lobsters are recognised as different commodity distinct from            A
      raw shrimps, prawns and lobsters. The question whether
      raw shrimps, prawns and lobsters after suffering processing
      retain their original character or identity or become a new
      commodity has to be determined not on the basis of a
      distinction made by the State Legislature for the purpose Of
                                                                               B
      exigibility to State Sales Tax because even where the
      commodity is the same in the eyes of the persons dealing in
      it the State Legislature may make a classification for
      determining liability to sales tax. This question, for the
      purpose of the Central Sales Tax Act, has to be determined
      on the basis of what is commonly known or recognised in                  c
      commercial parlance. If in commercial parlance and
      according to what is understood in the trade by the dealer
      and the consumer, processed or frozen shrimps, prawns
      and lobsters retain their original character and identity as
      shrimps, prawns and lobsters and do not become a new
                                                                              D
      distinct commodity and are as much 'shrimps, prawns .and
      lobsters', as raw shrimps, prawns and lobsters, sub-section
      (3) of section 5 of the Central Sales Tax Act would be
      attracted and if with a view to fulfil ling the existing contracts
      for export, the assessee purchases raw shrimps, prawns
      and lobsters and processes and freezes them, such                        E
      purchases of raw shrimps, prawns and lobsters would be
      deemed to be in course of export so as to be exempt from
      liability to State Sales Tax."
       17. Relying on the said passage, it is contended by Mr. Mehta
that when identity of the goods on the basis of commercial parlance is         F
similar, the High Court would have been well advised to follow the
principles set out in the aforesaid decision and should not have been
guided by the concept of enumeration in the Notification. In essence,
the submission is that there is no distinction between the oil cake and the
de-oiled cake and both should be perceived as one in commercial
parlance. Thus, the emphasis is on the commercial parlance test. To            G
bolsterthe said stand, reliance has been placed on Mis Habeeb Protiens
case, wherein the Division Bench of the High Court of Karnataka has
drawn a distinction between sunflower oil cake and groundnut oil cake
on the one hand and de-oiled sunflower cake and groundnut oil cake on
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576            SUPREME COURT REPORTS                           (2016] 5 S.C.R.


A     the other. The aforesaid analysis made in the said judgment should not
      detain us long, for Mr. Patil learned senior counsel for the State has
      brought to our notice a recent decisiori of this Court in the case of
      Agricultural Produce Market Committe_e vs. Biotor Industries
      Limited and Anr. 13 • In the said case, the two-Judge Bench had posed
      five questions and the question pertinent for our purpose reads thus:-
B
            " 13.4 Whether the Division Bench is justified in recording
            the finding on the second issue (see para 7, above at p. 737
            c-d) in connection with LPA NO. 195 of 2006 that the
            respondent concern is not liable to pay any market fee on
            the de-oiled cakes sold by it which are stated to be the by-
c           product in the course of manufacturing castor oil which is
            nClt one of the items enumerated in the Schedule to the Act
            and the notification issued by the Directorate?"
            18. Dealing with the distinction between the oil-cake and the de-
     oiled cake, the Court referred to the process and quoted from the findings
D referred by the learned Single Judge. Though the said decision was
     rendered in the backdrop of Gujarat Agricultural Produce Markets Act,
     1963 to levy of market fee, it is absolutely distinctly perceptible from the
     judgment that the Court has arrived at a definite conclusion that there is
     a distinction between the oil-cake and de-oiled cake and they are two
E different commercial products. Thus, when the difference has been drawn
     by this Court, the assessee herein cannot be allowed to advance a plea
  -- that the said test should not be applied, but the commercial parlance test
     should be adopted to determine the said goods for the purposes of Central
     Sales Tax Act. To have a complete picture, we may refer to the
     Notificarion dated 31.05.2002. The relevant part of it reads as follows:
 F
             "In exercise of the powers conferred by sub-Section (5) of
             Section 8 of the Central Sales Tax, 1956 (Central Act 74 of
              1956), the Government ofKarnataka, being satisfied that it
              is necessary so to do in the public interest, hereby directs
             that which effect from the First day of June, 2002, the tax
 G           payable by a dealer under Section 8 of the said Act on the
             sale-of goods specified below, made in the course of inter-
            . State trade or commerce, to a registered dealer or the
              Government shall be calculated at the rate of two per cent

       "(2014) 3 sec 732
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   M/S RAVI PRAKASH REFINERIES (P) LTD. v. STATE OF                           577
             KARNATAKA [DIPAK MISRA, J.]

      subjectto production of declaration in Fonn 'C' or certificate          A
      in Form 'D' duly filed and signed by the registered dealer
      or the Government to whom the said goods are sold:-
          1. Cotton Yarn
          2. Bicycles
                                                                              B
         3. Chemical fertilizers and chemical fertilizer mixtures
          4. Edible oil-refined and non-refined
          5. Khandasari Sugar
          6. Liquid Glucose, Dextrine, Maixe Starch, gluten, grits,
          maize, husk, oil cake,, corn steep liquor, dextrose, corn
                                                                              c
          oil, maixe hydro! and maize germs."
       19. From the said Notification, it is evident that the competent
authcrity while exercising power under sub-section (5) of Section 8 of
the CST Act, has kept the reduction of tax qua de-oiled cake from the
                                                                              D
purview ofNotification and has only provided oil cake to be taxed at the
reduced rate of tax. In view of the fact that the goods have distinct and
different identity which also get recognition from the Notification, we
are obliged to hold that the High Court has correctly distinguished the
authority in Mis Sterling Foods (supra) and we unhesitatingly agree
with !he same.                                                                 E
       20. Though we have agreed with the said conclusion of the High
Court, yet the fact remains that the assessing authority had expressed
the opinion with regard to the rate of tax on the de-oiled cake while
scrutinizing 'C' Fonns which is an expression of opinion on the available
materials brought on record and, therefore, the first appellate authority      F
as well as the tribunal was justified in concurring with the said order. It
is worthy to note that the revenue had not challenged the order passed
by the Joint Commissioner. The High Court has not expressed any
opinion on this score. Considering the cumulative effect of the facts and
law we have stated, we have not an iota of doubt in our mind that there
should not have been reopening of assessment. However, the finding             G
recorded by the High Court overturning the view of the tribunal that oil-
cake and de-oiled cake are the same product and, therefore, both are
liable to reduced rate oftax despite the notification only mentions oil-
cake, is not defensible.
                                                                               H
578             SUPREME COURT REPORTS                        [2016] 5 S.C.R.


A            21. Consequently, the appeal filed by the assessee is allowed in
      part. The finding of the High Court as regards oil-cake and de-oiled
      cake being different products as per the notification dated 31" May,
      2002 is correct. However, the assessee shall reap the benefit of initial
      assessment as the same could_ not have been reopened. In the facts of
      the case, there shall be no order as to costs.
B

      Kalpana K. Tripathy                                 Appeal partly allowed.