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TMI Blog2023 (5) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is only changing the size of stones from boulder to gitti , hence, there is no change in its character by reducing the size. The manufacturing includes any activities that bring out a change in final product. The Apex court in the case of COMMISSIONER OF SALES TAX, UP. VERSUS LAL KUNWA STONE CRUSHER (P) LTD. [ 2000 (3) TMI 58 - SUPREME COURT ] held that Even if gitti, kankar, stone ballast, etc. may all be looked upon as separate in commercial character from stone boulders offered for sale in the market, yet it cannot be presumed that Entry 40 of the notification is intended to describe the same as not stone at all. In fact the term stone is wide enough to include the various forms such as gitti, kankar, stone ballast. The above view ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Shri Justice Anil Verma For the Applicant : Shri Chiranjeev Saboo On Behalf Of Lokesh Mehta, Advocate For the Respondents : Shri Aniket Naik, Advocate ORDER The appellant has filed the present appeal under Section 53(1) of the Madhya Pradesh Value Added Tax Act, 2002 (hereinafter referred to as the Act of 2002) being aggrieved by the orders dated 31.07.2017, 04.09.2018 and 16.02.2023 (Annexures-A/1, A/2 & A/3) respectively. 02. The facts of the case in short are as under:- 2.1. The appellant is a registered Firm engaged in the business of stone crushers for the manufacturing of Gitti. The appellant established the said unit by taking a loan from Gramin Bank under Khadi Evam Gram Udyog under the 'Pradhan Mantri Rojgar Srijan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total sale value was found to be Rs.7,30,897/- and reduce the amount by deducting Rs.23,900/-. 2.4. Being aggrieved by the aforesaid order, the appellant approached the Madhya Pradesh Commercial Appellate Board and now vide order dated 16.02.2023, the appeal has been dismissed, hence, this Value Added Tax Appeal is before this Court. 03. The appellant has proposed the following substantial questions of law involved in this appeal:- a. Whether the Ld. Madhya Pradesh Commercial Appellate Board committed grave error of law while disposing the second appeal preferred by the appellant U/s 46 of the M.P. VAT Act without considering the record of the assessment as well as record of the first appellate authority ? b. Whether the Ld. Madhy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid order is reproduced below:- "11. The first contention of the appellant relates to the activity of crushing of large boulders and stones into grit amounting to manufacturing. According to Section 2(p) of the Act, manufacture includes any activity that brings out a change in article or articles, as a result of some process, treatment, labor, and results in transformation into a new and different article so understood in commercial parlance having distinct name, character and use, but does not include such activity of manufacture as may be notified. In common parlance, grit is a hard coarse grained, siliceous sandstone, this term is especially applied to such sandstones that are quarried for building material. The stones do not cease to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not commercially different goods to be identified differently for the purposes of sales tax. The decision relied on by the minority view in the Tribunal in Reliable Rocks Builders & Suppliers v. State of Karnataka [(1982) 49 STC 110 (Kant)] turned on the concept of consumption of goods for the purpose of bringing into existence new goods. In that case the Court was not concerned with an entry of the nature with which we are concerned in the present case. Where the dealer had brought into existence new commercial goods by consuming the boulders to bring out small pieces of stone, it was held that such activity attracted purchase tax. In the present case, however, stone, as such, and gitti and articles of stones are all of similar nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inishing of goods would not amount to manufacture unless it results in emergence of a new commercial commodity. In the instant case, the very nature of the activity does not result in manufacture because no new commercial commodity comes into existence." 09. We do not find any illegality or infirmity in the aforesaid finding to admit this appeal. So far as the claim of ITR for the purchase of diesel is concerned, the Tribunal has considered the same in para - 13 and 14. The appellant used to purchase diesel to run the crusher machine and not as a raw material to manufacture the gitti. ITR can be allowed only to the registered dealers on the purchase of goods specified in Schedule - II within the State. The appellant is not a dealer engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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