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TMI Blog2006 (8) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... tered dealer. The assessment of the petitioner-firm was made under section 12(4) of the Orissa Sales Tax Act, 1947 (hereinafter, referred to as the OST Act ) for the years 1990-91 and 1991-92. After completion of assessments and on the basis of information that the turnover of the petitioner for the aforesaid years has escaped assessment in view of the wrongful grant of exemption, orders for reopening of assessments were passed by the concerned Sales Tax Officer under section 12(8) of the OST Act. In course of such assessment proceeding, the Sales Tax Officer held that the petitioner had sold barley to the tune of Rs. 29,138.88 and Rs. 1,04,571.16 respectively for the years referred to above and claimed exemption of tax thereon on the ground of first point tax-paid goods and it was also claimed by the petitioner that purchase of Robinson barley was made inside the State of Orissa on payment of tax at the rate of four per cent. In the original assessment the exemption was allowed. But consequent upon reassessment, the Sales Tax Officer held that Robinson barley is not a medicine nor it is a cereal and is exigible to tax at the last point of sale at the rate of 12 per cent. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. Learned counsel for the petitioner also relied on section 14 of the Central Sales Tax Act, 1956 in order to contend that under the said section 14, a list of certain goods of special importance for interState trade and commerce is mentioned and barley is included against entry (x) in the list of items in section 14(i) of the Act. Learned counsel for the petitioner submits that the Tribunal has erred in law by reversing the judgment of the first appellate authority and in doing so misconstrued the notification and the provisions of the Sales Tax Act as pointed out hereinabove. It has also been submitted by the learned counsel for the petitioner that Robinson barley is nonetheless barley and the Tribunal should have held that since it is nobody's case that Robinson barley is not barley, the finding of the first appellate authority that it should be treated as first point tax-paid goods and in respect of which four per cent tax is payable should not have been interfered with. Reliance has been placed by the learned counsel for the petitioner on the judgment in the case of M. N. Nilugal v. District Manager, Food Corporation of India, District Office, Hubli/Raichur repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey is regarded as a new commodity in the market and the same is different from the original commodity namely, barley. This court, therefore, is of the opinion that the decision in the case of Pio Food Packers [1980] 46 STC 63 (SC) does not help the petitioner. Reliance was placed by the learned counsel for the petitioner in the judgment of the Supreme Court in the case of Alladi Venkateswarlu v. Government of Andhra Pradesh reported in [1978] 41 STC 394. In that case the question was whether atukulu (parched rice) and muramaralu (puffed rice) are rice within the meaning of entry 66(b) of the First Schedule to the Andhra Pradesh General Sales Tax Act, 1957. The said question arose in the context of section 5(2) of the said Act which provides a concessional rate of tax on rice and it also provides for a single point tax. In that case the High Court came to the conclusion that parched and puffed rice not being rice does not fall within the meaning of entry 66(b) of the First Schedule to the Andhra Pradesh General Sales Tax Act. Negativing the said contention, the Supreme Court held that rice is wide enough to include rice in its various forms whether edible or inedible. The Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ground and made into powder it does not become a new article after such conversion. On the aforesaid finding the Madras High Court held that company is entitled to exemption. In the instant case as pointed out earlier it is not urged by the petitioner that the distinction between barley and Robinson barley is only a conversion of barley in a powder form in Robinson barley. Here it cannot be disputed that these two items are distinct and different commercial entities. On the question of common parlance, learned counsel for the petitioner relied on several judgments for consideration of this court. Reliance was placed on the judgment of the apex court in the case of Filterco v. Commissioner of Sales Tax, Madhya Pradesh reported in [1986] 61 STC 318. In that case, the question was whether only those varieties of felt which satisfy the test of pliability will constitute cloth so as to fall within the scope of entry 6 of Schedule I of the Madhya Pradesh General Sales Tax Act, 1958. The apex court found that the appellant Filterco manufactured varieties of woollen felts. Twenty-six varieties of such items of different hardness, density and thickness were produced before the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing dehydrated milk or milk powder and, therefore, held that skimmed milk powder falls within the scope of the entry as it existed at the relevant point of time. But here the dispute is of a different nature. Here barley and Robinson barley are not items of the same nature though the basic ingredients of Robinson barley may be barley but when barley is transformed to Robinson barley, it goes through various technical process and various other ingredients like iron and calcium are added. This factual aspect has not been disputed by the learned counsel for the petitioner. Therefore, even by common parlance they are not the same. Therefore, the ratio of the division Bench in the case of Agarwal Co. [1983] 52 STC 117 (Bom) was totally based on different factual context. Similarly, the ratio in the case of Atlantis (East Limited) v. Additional Member, Board of Revenue, West Bengal, Calcutta reported in [1975] 36 STC 210 (Cal) is of no assistance to the contention of the learned counsel for the petitioner. In that case, the division Bench of the Calcutta High Court held on a proper construction of item No. 2 of Schedule I of the Bengal Finance (Sales Tax) Act, 1941, as it stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan Roller [1993] 91 STC 408; [1994] Suppl. 1 SCC 413, the apex court held that flour, maida and suji even though are derived from wheat are not wheat and, therefore, flour, maida and suji cannot be treated as one of the declared goods under the Sales Tax Act. It was categorically held that flour, maida and suji even though are derived from wheat are not wheat and they are different cereals. In the instant case even if we accept that Robinson barley is derived from barley, they cannot be treated as the same goods and cannot fall under the classification of barley under section 14(i)(x) of the Central Sales Tax Act. Therefore, as rightly contended by the learned counsel for the Revenue, Robinson barley cannot be treated as a declared goods under the Central Sales Tax Act. Therefore, considering the matter from all its angle and also considering the various judgments stated above, this court does not discern any error in the order of the Tribunal. The order of the Tribunal is upheld and this court finds that Robinson barley is not the same as barley in the form of cereals and Robinson barley cannot be taxed at the first point of sale at the rate of four per cent. Both the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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