VIJAYALAXMI CASHEW COMPANY AND ORS.versusTHE DEPUTY COMMERCIAL TAX OFFICER AND ANR.

          VIJAYALAXMI CASHEW COMPANY AND ORS.                                A
                                      v.
     THE DEPUTY COMMERCIAL TAX OFFICER AND ANR.

                          DECEMBER 15, 1995

  [A.M. AHMADI, CJ, B.L. HANSARIA AND SUHAS C. SEN, JJ.]                     B

      Central Sales Tax Act, 1956:

     S.5(3 )-Sate or purchase taking place in the course of export/im-
port-Raw cashew nuts purchased iii tlte penultimate sale-Held, not the       C
same goods as raw cashew kemels-lmmw1ity /tom taxation by State-Only
when goods exported are the same which were purchased.

       In the present batch of appeals against the judgment of the Madras
High Court, the appellants contended that cashew bought and sold by
them in the course of export trade was not different from cashew kernels; D
that the Judgment in State of Travancore-Cochin & Ors. v. Shanmugha Vilas
Cashew Nut Factory & Ors., [1954] SCR 53 dealt with Art. 286 of the
Constitution and did not conclude the questions raised in these appeals;
that the said Judgment was based on peculiar findings of facts made in
that case; that the perception of the Court in this type of controversy has E
changed as would be evident from the later decisions of the Supreme
Court; and that sub-section (3) of S.5 of the Central Sales Tax Act, 1956
was not considered in Shanmugha Vilas case.

      Dismissing the appeals, this Court
                                                                             F
      HELD : 1.1. Cashew nut kernels are not the same goods as raw
cashew nuts. It does not appear that either on facts found or in law, the
decision in Shanmugha Vilas Case needs reconsideration.

      1.2. The distinction sought to be drawn between the provisions of
sub-section (3) of Section 5 of the Central Sales Tax Act and Article 286(1) G
of the Constitution is misconceived. Under Article 286(1) the Court has to
examine whether any tax is being imposed by the State Legislature on the
sale or purchase of goods "in the course of the import of the goods into or
export of the goods out of the territory of India". In order to resist
imposition of sales tax by the State, the assessee will have to establish the H
                                     719
    720                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A identity of the goods purchased with the goods to be exported out of the
  territory of India. In order to fulfil an export obligation, if an exporter
  purchases goods and as a result of some processing, the identity and
  character of the goods change, then it will not be a case of export of the
  same goods. There is no dispute that every change does not bring into
B existence new goods nor can it be said that however small the change may
  be due to the processing, the identity of the goods will be completely lost.
  It is a question of fact and degree. But the point to note is that the issue
  before the Supreme Court in Shanmugha Vilas case and the issue that has
  been raised in the present case are the same. Therefore, it will be wrong
  to distinguish the judgment of the Supreme Court in Shanmugha Vilas case
C as confined to Article 286 of the Constitution. It cannot be said that the
  judgment in Shanmugha Vilas does not throw any light on the interpreta-
  tion of sub-section (3) of Section 5 of the Central Sales Tax Act. The
  controversy raised in both the cases is about the identity of the goods
  purchased and the identity of the goods sold. In the present cases the
D penultimate sale is in question. Shanmugha Vilas considered only the case
  of the actual export sale or the last sale in course of export under Article
    286 of the Constitution. But the present cases relate to a sale which took
    place immediately before the actual sale for export. [722-H, 723-A-E)

          1.3. The question in this case is whether the cashew nut kernels which
E   were exported are 'those goods' which were purchased by the assessee in
    the penultimate transaction. This was precisely the question that was
    answered in the negative in Shanmugha Vilas case. Therefore, no distinc-
    tion can be drawn between the cases now under appeal and the decision of
    this Court in Shanmugha Vilas's case on the plea that the scope of snb-sec-
F   tion (3) of Section 5 of the Central Sales Tax Act was wider than Article
    286 of the Constitution. It is true that sub- section (3) by a legal fiction
    has widened the scope of export sale, but the basic concept remains the
    same. In order to get immunity from taxation by the State legislature, the
    goods exported must be the same goods which were purchased. [724-B-C]

G       1.4. In the cases under appeal, it has been noted in the order dated
  15th April, 1982 by the Deputy Commercial Tax officer that cashew nut was
  commercially a dill'erent commodity from raw cashew nut as oil was ex-
  tracted and thereafter kernels were exported under separate contracts. It
  also appears from the said order of 15th April, 1982 that an amount of Rs.
H 18,419 bas been added back to the turn over on account of sale of cashew
      VIJAYAIAXM! CASHEW COMPANY'- DY. COMMERCIAL TAX OFFICER [SEN,J.[   721

husk. Therefore, a purchaser of raw cashew nut can extract oil and sell it A
in the domestic market, he can also sell the husk locally, he can also extract
the kernels after going through an elaborate process and sell them with or
without further processing to the exporter for fulfilling his export commit-
ments. Since raw cashew nuts can be used for so many purposes and the
process of extracting the kernels so elaborate, it cannot be said that the
goods (raw cashew nuts) purchased in the penultimate sale were the same B
goods (cashew nut kernels) which were sold for export. [729-H, 730-A-B]

      State of Travancore-Cochin & Ors. v. Shanmugha Vilas Cashew Nut
Factory and Others, [1954) SCR 53, explained and held it does not require
reconsideration.
                                                                               c
      Mohd. Serajuddin v. State of Orissa, 36 STC 136 (SC); Mis Tungab-
hadra industries Ltd. v. T7te Commercial Tax Officer, Kumool, [1961) 2 SCR
14; Deputy Commissioner of Sales Tax (Law) v. Pio Food Packers, 46 STC
63 (SC); Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan, 46 STC
256 (SC) and Sterling Foods v. State of Kamataka, 63 (STC) 239, referred D
to.

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5626-62
of 1985.
                                                                               E
      From the Judgment and Order dated 12.12.84 of the Madras High
Court in W.P. No 3968/82 and Nos. 4332, 9862, 9916, 9863, 4333, 1026, 4663,
9867, 9866, 9864, 9856, 6333, 9861, 9857, 9855, 9860,4976, 4336of1982, Nos.
5579,4330,2229,2234,2400,2402, 10968,4326,327,2237,10969,5580,2401,
2403, 2233 of 1983 and Nos. 170, 175, and 1100 of 1984.
                                                                               F
      H.N. Salve, P.S. Poti, T.L. Viswanatha Iyer, A.K. Ganguli, S. Ganesh,
K.J. John, P.K. Manohar, S. Prasad, Kumar Parimal, MKD Namboodiri,
S. Balakrishnan, EMS Anam, A. Subba Rao, M.T. George, Ms. Arona
Mathur, Ajay Kapur, A. Mariarputham, M. Veerappa, N. Sudhakaran, S.
Ganesh, TVSN Chari and Nikhil Nayyar for the appearing parties.
                                                                               G
       . The Judgment of the Court was delivered by

      SEN, J. : The Central Sales Tax Act, 1956 (for short 'the Act') was
amended by insertion of sub-section (3) of Section 5 by Act No. 103 of
1976 with effect from 1st April, 1976. The said Section 5(3) reads as under:   H
    722                        SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A            "5. When is a sale or purchase of goods said to take place in the
             course of import of export.

             (1) ......... .

             (2) ......... .
B
             (3) Notwithstanding anything contained in sub-section (1), the last
             sale or purchase of any goods preceding the sale or purchase
             occasioning the export of those goods out of the territory of India
             shall also be deemed to be in the course of such export, if such
             last sale or purchase took place after, and was for the purpose of
c            complying with, the agreement or order for or in relation to such
             export. 11

          The common contention of the appellants in this batch of appeals is
    that the judgment of this Court in the case of State of Travancore-Cochin
D   & Ors. v. Shanmugha Vilas Cashew Nut Factory and Others., (1954] SCR
    53, deals with Article 286 of the Constitution and does not conclude the
    questions raised in these cases. It has been contended in the first place that
    cashew bought and sold by the appellants in the course of export trade is
    not different from cashew kernels. It has further been contended that the
E   judgment in Shanmugha Vilas Case (Supra) was based on pe~.ili..r fi,1dings
    of facts made in that case. Moreover, the perception of the Court in this
    type of controversy has changed as will be evident from later decisions of
    this Court. Lastly, it was contended that sub-section (3) of Section 5 of the
    Act did not fall for consideration by this Court in Shanmugha Vilas Case
    (supra). Therefore, in any way, that decision cannot cast any light on the
F   controversy raised in this case. It has been contended that cashew cannot
    be regarded as a commodity different from the cashew kernels. The last
    sale or purchase of cashew in this case took place before the sale or
    purchase occasioning the export of cashew kernel out of the territory of
    India and, therefore, should also be deemed to be in the course of the
    export trade. There may by some processing of the cashew purchased by
G   the dealers before the cashew nuts were sold but that will not make the
    goods which were sold, in any way different from the goods that were
    purchased. Both were cashew of cashew nuts.

          In our view, the distinction sought to be drawn between the
H   provisions of sub-section (3) of Section 5 of the Act and Article 286(1) of
    VUA YALAXMI CASHEW COMPANY'· DY. COMMERCIAL TAX OFFICER [SEN, J.)   723

 the Constitution is misconceived. Under Article 286(1), the Court has to A
examine whether any tax is being imposed by the State Legislature on the
sale or purchase of goods "in the course of the import of the goods into or
export of the goods out of the territory of India" Jn order-to resist imposi-
tion of sales tax by the State, the assessee will have to establish the identity
of the goods purchased with the goods to be exported out of the territory B
of India, In order to fulfill an export obligation, if an exporter purchases
goods and as a result of some processing the identity and character of the
goods change, then it will not be a case of export of the same goods. There
is no dispute that every change does not bring into existence new goods
nor can· it be said that however small the change may be due to the
processing, the identity of the goods will be completely lost. it is a question C
of fact and degree. But the point to note is that the issue before the
Supreme Court ir Shanmugha Vilas case (supra) and the issue that has
been raised in the P' .o.ent case are the same. Therefore, it will be wrong
to distinguish the judgment of the Supreme Court in Shanmugha Vilas case
(supra) as confined to Article 286 of the Constitution. We are unable to D
uphold the argument that this judgment does not thrown any light on the
interpretation of sub-section (3) of Section 5 of the Act. The controversy
raised h1 both the cases is about the identity of the goods purchased and
the identity of the goods sold. In the case before us, the penultimate sale
is in question. The Supreme Court considered only the case of the actual E
export sale or the last sale in course of export under Article 286 of the
Constitution. But here, we have a case of a sale which took place immedi-
ately before the actual sale for export. In the case of Mohd. Serajuddin v.
State of Orissa, 36 STC 136 (SC), it was held that under Article 286, the
sale which was not liable to tax under the State Sales Tax Act was only the . F
actual sale by the exporter, but the benefit of export sale did not extend to
the penultimate sale to the Indian exporter for the purpose of export. This
led to insertion of sub-section (3) of Section 5 of the Central Sales Tax Act,
with effect from 1st April, 1976 whereby the last sale or purchase of any
goods preceding the sale or purchase occasioning the export of the goods
were also granted exemption from the State levy, But in order to claim G
protection of sub-section (3) of Section 5, the assessee will have to establish
that the last sale or purchase before the sale or purchase occasioning
export were of those goods which were exported. The deeming section
expands· the concept of export sales to include the penultimate sale or
purchase of goods preceding sale or purchase occasioning the export. But H
    724                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A the penultimate sale or purchase of goods must be of those goods which
    were actually exported.

          The question in this case is whether the cashew nut kernels which
    were exported are'those goods' which were purchased by the assessee in
B   the penultimate transaction. In other words, whether the raw cashew nuts
    which were purchased were 'those goods' which were exported? This was
    precisely the question that was answered in the negative in Shanmugha
    Vilas Case. Therefore, no distinction can be drawn between the cases now
    under appeal and the decision of this Court in Shanmugha Vilas's on the
    plea that the scope of sub-section (3) of Section 5 of the Central Sales tax
C   Act was wider than article 286 of the Constitution. It is true that sub-section
    (3) by a legal fiction has widened the scope of export sale, but the basic
    concept remains the same. In order to get immunity from taxation by the
    State legislature, the goods exported must be the same goods which were
    purchased.
D
        The question raised in these appeals is whether the purchase of raw
  goods made by the appellants after which the cashew kernels were ex-
  tracted and exported to foreign countries could be subjected to the State
  Sales Tax Act in view of the provisions of Section 5(3) of the Central Sales
  Tax Act. In other words, the question is whether the export of cashew
E kernels obtained out of raw cashew nuts would amount to export of 'those
  goods which had been purchased". The answer will depend on the nature
  of the cashew kernel that are exported and the raw cashew purchased by
  the dealers. This aspect of the matter was gone into in depth in Shanmugha
  Vilas Case (supra) by S.R. Das, J. (as he then was). It has been recorded
F in the Judgment of Das, J. that the case was heard at great length and over
  several days and ultimately the High Court was directed to investigate into
  the disputed facts and a send report. On the basis of the report given by
  the High Court, the appeals, were heard and finally disposed of. It will be
  wrong to distinguish this case on the ground of any special facts. It does
  not appear from the judgment that any special feature of cashew trade
G peculiar to Shanmugha Vilas was considered by this Court. The appellants
  have also not been able to show any special fact in this case which is
  contrary to what has been found in the judgment of Das, J. In fact, no
  endeavour has at all been made to show how cashew kernels are extracted
  and in what way the kernels are b·asically nothing but the fruits originally
H plucked. The facts noted in the remand report sent by the High Court have
    VIJAYALAXMI CASHEW COMPANY'· DY. COMMERCIAL TAX OFFICER[SEN.J.[      725

not been shown to be contrary to the facts found in the case of the A
appellanlo.

     The facts which were noted by the Constitution Bench in that case
were recorded by Das, J. at page 110 in the following words :

        "The High Court has, on remand, enquired into the process of B
        manufacture through which the raw cashew-nuts are passed before
        the edible kernels are obtained. The High Court, in its judgment
        on remana, goes minutely into the different processes of baking or
        roasting shelling, pressing, pealing, and so forth. Although most of
        the process is done by hand, part of it is also done mechanically C
        by drums. Oil is extracted out of the outer shells as a result of
        roasting. After roasting the outer shells are broken and the nuts
        are obtained. The poison is eliminated by pealing off the inner
        skin. By this process of manufacture, the respondents really con-
        sume the raw cashew and produce new commodities. The resultant
        products, oil, and edible kernels, are well recognised commercial D
        commodities. They are separate articles of commerce quite distinct
        from the raw cashew-nuts. Indeed, it is significant that the respon-
        dents place order for "cashew-nuts" but orders are placed with
                     11
        them for cashew-nut kernels".
                                                                               E
     On the basis of these facts, Das J. concluded at page 111 that :
        11
             ln the circumstances, "the goods11 exported are not the same as
        the goods purchased. The goods purchased locally are not ex-
        ported. What are exported are new commodities brought into
        being as a result of manufacture. There is a transformation of the     F
        goods. The raw cashews are consumed by the tespondents in the
        sense that a jute mill consumes raw jute, or a textile mill consumes
        cotton and yarn. The raw cashews are not being actually exported
        the purchase of raw cashews cannot be said to have been made
        "in the course of' export so as to be entitled to immunity under       G
        clause (l)(b)."

      It was argued, and some of the High Courts have also taken the view,
that this judgment is confined to the facts of this case. But this, in our
opinion, will be a wrong view to take. By that judgment as many as eight
appeals were disposed of. The High Court on remand had made a report H
    726                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A   on how the edible kernels are extracted from raw cashew nuts and having
    examined minutely the whole process, the Court came to the conclusion
    that the kernels were not the same goods as raw cashew nuts purchased by
    the dealers. What was exported were the edible kernels and what was
    purchased for the purpose of export were raw cashew nuts. This Court has
    taken the view that after examining the facts in detail the final products
B
    were not the same goods as raw cashew nuts.

          It may be mentioned that Patanjali Sastri, CJ., speaking for the
    majority, was also of the view that raw cashew nuts and kernels manufac-
    tured out of them by various processes, partly mechanical and partly
C   manual, were not commercially the same commodity. It was held at page
    70:

            "This finding, which is not seriously disputed before us, would be
            an additional ground for rejecting the claim to examination in
            respect of these purchases ......."
D
           It has not been shown how the facts of the cases under appeal are
    different from the facts of that case. It has also not been shown that the
    kernels in these cases have been extracted from cashew nuts by a different
    process or the cashew nuts were of some other variety. In that view of the
E   matter, it must be held that the controversy is concluded by the judgment
    of this Court in Shanmugha Vilas case (supra).

         We are also unable to uphold the contention that perception of this
  Court, as will appear from the later judgments, has changed in this regard.
  A judgment of a Five-Judge Bench, which has not been doubted by any
F later judgment of this Court, cannot be treated as overruled by implication.
  The judgments on which the reliance was placed on behalf of the appellants
  do not support this contention in any manner. In the case of Mis. Tungab-
  hadara Industries Ltd. v. The Commercial Tax Officer, Kumool, [1961] 2
  SCR 14, a Bench of five Judges had to decide the question whether refined .
  oil continues to be groundnut oil within the meaning of Rules 5(1)(k) and
G 18(2) of the Madras General Sales Tax (Turnover and Assessment) Rules,
  1939. It was argued that such oil did not possess the characteristic colour
  or taste or odour, etc. of raw groundnut oil. The Tribunal as well as the
  High Court had taken the view that hydrogenated oil (Vanaspati) ceased
  to be groundnut oil by reason of the chemical changes which resulted in
H the acquisition of new properties including the loss of its fluidity. The
    VUAYALAXMI CASHEW COMPANY'· DY. COMMERCIAL TAX OFFICER [SEN. J. [   727

Tribunal as well as the High Court had taken the view that Vanaspati was A
not groundw"t oi~ but a product of groundnut oil, manufactured out of
groundnut oil therefore not entitled to the benefit of the deduction under
Rule 18(2). This Court upheld the contention made on behalf of the
appellant that hydrogenated groundnut oil was no lesser groundnut oil than
either refined or even unrefined oil. The fact that the quality of the oil had B
been improved did not negative its continuing to be oil and the materials
before the departmental authorities and the Court held that it continued
to be oil and was nothing more.

     The Court took the view :
                                                                              c
        "No doubt, sever;il oils are normally viscous fluids, but they do
        harden .and asume semi-solid condition on the lowering of the
        temperature. Though groundnut oil is, at normal temperature, a
        viscous liquid, it assumes a semi-solid condition if kept for a long
        enough time in a refrigerator. It is therefore not correct to say that D
        a liquid state is an essential characteristic of a vegetable oil and
        that if the oil is not liquid, it ceases to be oil. Mowrah oil and dhup
        oil are instances where vegetable oils assume a semi-solid state
        even at normal temperatures. Neither these, nor coconut oil which
        hardens naturally on even a slight fall in temperatnre, could be
        denied the name of oils because of their not being liquid Other E
        facts like ghee are instances where the physical state does not
        determine the identity of the commodity.



                                                                              F
            Both the Tribunal as well as the High Court have pointed out
        that except for its keeping quality without leakage, hydrogenated
        oil serves the same purpose as a cooking medium and has identical
        food value as refined groundnut oil. There is no use to which the
        groundnut oil can be put for which the hydrogenated oil could not
        be used, nor is there any use to which the hydrogenated oil could G
        be put for which the raw oil could not be used. Similarly we
        consider that hydrogenated oil still continues to be 'groundnut oil'
        notwithstanding the processing which is merely for the purpose of
        rendering the oil more stable thus improving its keep' 0 qualities
        for those who desire to consume groundnut oil."                      H
    728                  SUPREME COURT REPORTS [1995] SUPP.6 S.C.R.

A         We fail to see how the principles laid down in the case of Tungab-
    hadra (supra) runs counter to the ratio of the judgment of this Court in
    the case of Shanmugha Vilas (supra). This Court in the Tungabhadra case
    (supra) laid down that liquid state was not an essential characteristic of a
    vegetable oil. If the oil is not liquid, it did not cease to be oil. The
    groundnut oil assumed semi-solid condition if kept for long enough time
B   in a refrigerator. There was no use to which the groundnut oil could be
    put for which hydrogenated oil was not put.

          As has been noted in the judgment in Shanmugha Vilas case raw
    cashew nut cannot be used as edible nut at all. Moreover, there is no
C   dispute that it can be used for more than one purpose. Therefore, in our
    judgment, it will not be right tc -•"that the decision in Tungabhadra's Case
    has in any way whittled down the principles laid down in Shanmugha Vilas
    Case.

D          In the case of Deputy Commissioner of Sales Tax (Law) v. Pio Food
    Packers, 46 STC 63 SC, it was held that when pineapple fruit was processed
    into pineapple slices for the purpose of being sold in sealed cans, there
    was no consumption of the original pineapple fruit for the purpose of
    manufacturing and the case did not fall within Section 5A(l)(a) of the
    Kerala General Sales Tax Act, 1963. The language of clause (a) of Section
E   5A(l) of the Kerala General Sales Tax Act was "consumes such goods in
    the manufacture of other goods for sale or otherwise." All that this Court
    laid down was that when pineapple was sliced and canned for sale, the
    slices did not cease to be pineapple. It was pointed out in that case that
    there was no essential difference between pineapple fruit and canned
F   slices. It was held that clause (a) of Section 5A(l) truly spoke of goods
    consumed in the manufacture of other goods for sale. This Court merely
    held that if pineapple is sliced and made ready for sale in the market, the
    slices did not lose the character of being pineapple. There again it was case
     of a fruit which was merely sliced and made ready for sale by adding
    preservatives and by canning. This case also does not in any away affect
G   the principle laid down in the case of Shanmugha Vilas. Furthermore, in
     that case, the problem was construction of the word 'consume' in Section
    5A(l)(a) of Kerala General Sales Tax Act.

          In the case of Delhi Cloth & General Mills Co. Ltd. v. State of
H   Rajasthan, 46 STC 256 (SC), it was held by this Court that 'rayon tyre-cord
    VIJAYALAXMI CASHEW COMPANY'· DY. COMMERCIAL TAX OFFICER (SEN,J.(       729

fabric" was "rayon fabric". It was observed by Pathak, J. (as his Lordship A
then was) that it was fairly well-settled that the words or expressions must
be construed in the sense in which they are understood in the trade, by the
dealer and the consumer. It is they who are concerned with it and it is the
sense in which they understand it that constitutes the definitive index of
the legislative intention when the statute was enacted."
                                                                                  B
      In the instant case also, if the common parlance test is applied,
cashew nuts and cashew kernels have different markets altogether. It is true
that in the case of Shanmugha Vilas, it was noted that the finding of the
High Court was not disputed seriously before this Court. But nothing has
been brought on record to contradict the finding of the High Court in that        C
case in any one of the cases now before us.

      Sterling Foods vState of Kamataka, 63 STC 239 was a case of export
of lobsters. In that case the appellants purchased shrimps, prawns and
lobsters locally for complying with orders for export and they cut the heads
and tails of the shrimps, prawns and lobsters and then they were subjected        D
to peeling, deveining and cleaning and freezing before being exported in
cartons. The appellants claimed that no local sales-tax was payable by them
in view of Section 5(3) of the Central Sales Tax Act,1956 which precluded
levy of sales-tax on local purchase if they were made pursuant to export
orders and the sale was of 'those goods' purchased. It was held by this           E
Court that by reason of processing of the goods after their purchase, there
was no change in their identity and that, in fact, commercially they were to
be regarded as the original goods.

       This case does not help the appellants. Even if a purchaser goes to
the retail market to buy lobsters, the seller may, if so required by the buyer,   F
peel the shell and cut the head and tail of the lobsters according to the
direction of the customer. But the sale will, nonetheless, be of lobsters. If
this is done on a big scale by a trader, the character of the goods sold will
not change. The goods that were purchased were those goods which were
exported.
                                                                                  G
       In the cases under appeal, it has been noted in the order dated 15th
April, 1982 by the Deputy Commercial Tax officer that cashew nut was
commercially a different commodity from raw cashew nut as oil was
extracted and thereafter kernels were exported under separate contracts.
It also appears from the said order of 15th April, 1982 that an amount of H
    730                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A Rs. 18,419 has been added back to the turn over on account of sale of
    cashew husk. Therefore, a purchaser of raw cashew nut can extract oil and
    sell it in the domestic market, he can also sell the husk locally, he can also
    extract the kernels after going through an elaborate process and sell them
    with or without further processing to the exporter for fulfilling his export
    commitments. Since raw cashew nuts can be used for so many purposes
B   and the process of extracting the kernels so elaborate, it cannot be said
    that the goods (raw cashew nuts) purchased in the penultimate sale were
    the sai.,e goods (cashew nut kernels) which were sold for export.

          We are of the view that cashew nut kernels are not the same goods
C   as raw cashew nuts. It does not appear that either on facts found or in law,
    the decision in Shanmugha Vilas Case needs reconsideration. The appeals,
    therefore, fail and are dismissed. There will be no order as to costs.

    G.N.                                                      Appeals dismissed.