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TMI Blog1956 (2) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ending 31st December, 1940, was made on 4th September, 1941. The application was made by Nandalal Bhartia, one of the directors of the company, stating that the business was mainly wholesale manufacturing and partly retail. It was mentioned that the gross turnover during the year ending 31st December, 1940, was Rs. 2,200,000. It was then stated as follows: "Following classes of goods are ordinarily purchased by us (a) For purposes of manufacture: Iron and steel, scrap, boring, hardware, metals, stationery, mill stores, ingots and billets, mill stores, oils, tools, machinery accessories, spare parts, chemicals, bricks, building materials, sand, coal." It was further stated that the company did not purchase anything for resale. Finally, it was stated that the company manufactured for sale the following class of goods: "Steel castings, ingots, bars, rounds, flats, squares etc." This application was produced at the hearing and has been marked as Exhibit 1. The certificate was granted by the Commercial Tax Officer, Beadon Street, on 27th September, 1941, in Form IIB as prescribed by the rules. This certificate has been produced at the hearing and has been marked Exhibit A. The certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deletion of items from the registration certificate unless particulars of the specific items proposed to be deleted were stated. On 4th January, 1955, the Commercial Tax Officer replied to this letter (page 17) inter alia stating as follows: "Dear Sir, With reference to your Advocate's letter dated 30th December, 1954, I beg to inform you that the scope of exemption under section 5(2)(a)(ii) of the Bengal Finance (Sales Tax) Act in the case of manufactures has been restricted by the Government to admit only those goods which are actually used in the manufacture of goods for sale. It has accordingly been decided to extend exemption under section 5(2) (a)(ii) in the case of manufactures to the following classes of goods which should be specified in the certificate of registration as being intended for use in the manufacture of goods for sales. (a) Raw materials, and articles which are components or constituents of the finished product. (b) Consumable stores which are used in the process of manufacture, e.g., fuel, lubricating oil, chemicals, provided that they are actually used in the process of manufacture, or are required for use in machines employed in a manufacturing process. (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not be made quashing the said order in so far as it purported to delete the various items of exempted goods therein mentioned and also why a writ of mandamus should not be made directing the respondents to forbear from giving effect to the said orders of deletion or not to give effect to the same, and to give effect to the registration certificates as they originally stood prior to the amendment of February, 1955. The learned Advocate-General appearing on behalf of the respondents has taken a preliminary point, namely, that under section 20(3) of the Act, the petitioner had an adequate alternative remedy. Under that provision, the Commissioner may upon application made to him or of his own motion revise any order passed under the Act or the Rules made thereunder and subject to the same, the Board of Revenue may in like manner revise any assessment or order made by the Commissioner. I think that this point is well-founded. However, although Mr. Kar has not argued it, it may be said that the Commercial Tax Officer had passed an order not of his own initiative, but under directives made by Government and consequently any revision before the Commissioner would be ineffective in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For example, a special kind of brick may be necessary for the building of ovens or blast-furnaces or plumbing materials may be required for constructing a pump to force superheated steam into them and these goods may be said to be directly required in the process of manufacture. We are however not concerned in this case with the latter kind of goods. All we are concerned with is building or plumbing materials or fixtures for construction, fitting out or repair of any building, such as a factory building or any other kind of building which a company of this description requires to have, e.g., quarters for the staff or labourers, store-house, warehouse etc. The question is whether the materials required for the construction of such buildings can be called goods intended by the dealer for use by him in the manufacture of his goods. Mr. Kar appearing on behalf of the petitioner formulated his arguments thus. Firstly, he says that the order for amendment of the registration was not authorised by law. According to him, the matter does not come under the scope of section 7(4) of the Act. Under that provision, the Commissioner may from time to time amend any certificate of registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of registration. I think that the learned Advocate-General rightly argued that in case the Court finds that the new construction placed on section 5(2)(a)(ii) is the correct one, it can never, under an equitable jurisdiction, direct that the petitioner should continue to get an exemption which is not warranted. He points out that if such an application is conceded, then in future, any dealer to whom such an amenity was refused, might come up before this Court and challenge the order on the ground of discrimination. In my opinion, it would be difficult for the petitioner to contend that this Court should be instrumental in perpetuating an incorrect construction of a provision of the Act. It is un- thinkable of doing any such thing by means of a high prerogative writ. With regard to the construction of the section, the learned Advocate-General has pointed out the difficulties that lie in the way of the Court in deciding the question. He says that whether a particular class or classes of goods is or are intended for use by the manufacturer in the manufacture of the goods, is a question of technical detail and it would be impossible for the Court to arrive at any decision without the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But if we are to include bricks required for the building of the factory as goods required in the manufacturing process, then there is no limit at which we should stop. In that case, a car required for the transport of the manager from his residence to the factory may equally be said to be required for the use in the manufacturing process. It may be argued that without such a car, the manager could not arrive in time at his office and therefore the manufacturing process could not be carried on properly. In that event, the words "in the manufacture of goods" would not be used, but the words would be "in connection with, or in relation to, the manufacture of goods." In my opinion, the construction placed by the authorities is the correct view. I have already mentioned that I cannot possibly decide as to whether bricks or other plumbing materials or fixtures, other than what are required for building or buildings simpliciter, are or are not intended for use in the actual process of manufacture or not. The only thing that I am deciding is that, in my opinion, the ingredients of buildings in which a manufactory is housed cannot ordinarily be said to be goods intended for use by the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioner, in that event, is in this difficulty that I am not in a position to decide that question in the absence of expert evidence. Therefore adjudication on that point also becomes impossible in an application under Article 226. For such an adjudication the petitioner will have to institute proceed- ings where evidence can be taken. The learned Advocate-General has stated that if in future a particular thing is required to be installed or repaired which is actually required in the manufacturing process and not already exempted, the petitioner can make an application for ex- emption and it will be dealt with upon its own merits. If however there is a dispute as to whether it does constitute a part of the manufacturing process or not, the difficulty cannot be resolved by an application under Article 226. I might also point out that in so far as fixtures etc. are part of the plant or machinery, exemption has already been granted. Reference has also been made in the arguments before me to rule 27A. The very same question is involved there and it does not require any further elucidation. Mr. Kar has lastly argued that the certificates were issued after the Commercial Tax Of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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