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TMI Blog2016 (5) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... obtained and sold smokeless coke (SSF Coke) and is a form of coal. The raw material for manufacture of smokeless soft fuel coke is coal. 4. The petitioner was granted exemption from payment of tax on smokeless soft fuel under notification No.(35) dated 23.10.1981 and enjoyed exemption from payment of tax up to 20.7.2000 under Industrial Policy of State of Government of M.P. 5. For the Assessment Order 1.4.2002 to 31.3.2003, the petitioner has sold SSF Coke obtained from tax paid steam coal and, therefore, sales of SSF Coke has been claimed as tax paid sales, on the ground that even after processing, it remains the same and no new commercial commodity comes into existence. In substance coke is refined form of coal and it cannot be treated as different commodity for commercial tax purposes. 'Coke is nothing but Coal' due to the phraseology used by legislature in Section 14(ia) of Central Sales Tax Act and vide entry No.22 of Part - V of Schedule II of the M.P. Commercial Tac Act, 1944 which reads as under :- "Coal including coke in all its forms and charcoal" 6. The assessing authority vide order dated 27.12.2011 (Annexure A), treating coal and coke as separate commodit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different commodity for commercial tax purpose and placed reliance on the decision of the full Bench of M.P. High Court in the case of Commissioner V/s. Manoj Kumar Agrawal reported as 13 STJ 228 (MP) (FB), two decisions of the Apex Court in the case of India Carbon V/s. State of Assam, reported as (1995) 96 STC 636 (Gauh) & 28 STC 603 (SC) and Universal Hydrocarbons V/s. State of Bihar reported as (1995) 96 STC 204 (SC), two decisions of Bihar High Court in the case of Bihar Hard Coke V/s. State of Bihar reported as (1988) 82 STC 337 (Pat) and Anil Hard Coke V/s. State of Bihar reported as (1988) 71 STC 322 (Pat). 9. In the case of Universal Hydrocarbons V/s. State of Bihar (supra), the Apex Court held that even pertroleum coke and calcined petroleum coke are also form of Coal and will be governed by the expression "Coal" though they are not derived from coal and therefore the learned counsel submits that no separate commercial commodity emerges or comes into existence and even after processing of the coal, there is no change in the identity or use of the goods and, therefore, such goods cannot be taxed again during sale within the State or enter State. 10. The decision of Ms. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess of manufacture and a new manufacture commodity comes out after manufacture process is over and the manufactured commodity is a different marketable commodity. 13. The Allahabad High Court in the case of Sonebhadra Fules V/s. Commissioner Trade Tax, U.P. Lucknow reported as (2006) 147 STC 580 (ALL) has expressed the view that the coal dust and coal briquette falls under the same entry and taxable under the same entry, but manufacture of briquette out of coal dust involves process of manufacture. Therefore, the coal briquette manufactured out of tax paid coal dust is taxable. The coal dust and briquette are two different commercial commodities. The aforesaid view has been approved by the Apex Court in the case of Sonebhadra Fules V/s. Commissioner Trade Tax, U.P. Lucknow reported (2011) 46 TLD 513 (SC) and prayed for dismissal of the writ petition. 14. The issue in question is "whether levy of tax under M.P. Commercial Tax Act, 1994, as per entry 22 of Part V of Schedule II on smokeless coke obtained from processing of coal purchased from registered dealer after paying full tax @ 4% is justified under law or not ?". 15. The term of 'manufacture' is defined under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le commodity for the purposes of levy of tax under that law." If the intention of the legislature had been that the various commodities mentioned in the same clauses in Section 14 were to be regarded as a single commodity, it would have specifically provided as such. The legislature, however, chose to single out different types of pulses only to be regarded as a single commodity. Notwithstanding the fact that the raw hides and skins had been held by this Court in Abdul Shakoor's case (supra) as being distinct from dressed hides and skins the legislature did not think it appropriate to insert a clause similar to Section 15 (d) which may have had the effect of regarding raw hides and skins and dressed hides and skins as being treated as a single commodity for the purposes of levy of tax." 19. In the case of Sonebhadra Fules V/s. Commissioner Trade Tax, U.P. Lucknow, the Apex Court held that the coal is a raw material for making coal briquettes. The method of manufacturing coal briquettes is a processing, treating or adapting the coal. The appellant therein manufactures coal briquettes by compiling the hard coke breeze mechanically with the help of cinders which is usually 5% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Larger Bench of this Court in the case of S. Kumar Limited (supra) held that the "Coal Ash" is "Cinder" and covered by the terms "Coal" in Entry No.22 in Part V of Schedule II of the Commercial Tax Act and, therefore, it is not exigible to tax under Entry No.39 in Part IV. The corresponding entry in the repealed Act shall be construed accordingly in relation to the matters pending under the said Act. The Larger Bench held the following:- "That the decision rendered by the Full Bench of this High Court in Humumchand Mills (supra) is de hors the earlier decisions and the finding has been arrived at without the cogent and relevant material being on record of that case. Under these circumstances, we find ourselves unable to subscribe to the view expressed therein with regard to Cinder (Coal Ash) being a different commodity from its parent Coal. The said decision is accordingly over rules only insofar as it holds that Cinder is not coal. The decisions of the learned Single Judge in W.P.No.262/1998 and W.P.No.1169/2004, assailed in the above appeals, are upheld but it is made explicit that the decision in S. Kumar Ltd, (2005) 1 MPLJ 352 deals only with the taxability which has now b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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