1. This matter comes before me on a difference of opinion between Padhye and Mohta, JJ. The point on which the two learned Judges differed has not been stated by them in any order of reference, but it clearly emerges on a perusal of the respective judgments and has been set out in the judgment of Mohta, J., in the following words, namely, 'Whether different commercial goods manufactured out of raw material - cotton fabrics - are also included in entry No. 15 of Schedule A to the Bombay Sales Tax Act, 1959.'
2. Before dealing with this point, it will be convenient briefly to state the facts which have given rise to this difference of opinion. The petitioners are a partnership firm carrying on business at Gondia. The petitioners' firm is registered as a dealer under the Bombay Sales Tax Act, 1959 (hereinafter for the sake of brevity referred to as 'the Act'). The business of the petitioners consists of purchasing cotton canvas, cotton niwar, cotton chair cloth, chemical cotton canvas and cotton cloth and of manufacturing from goods so purchased article such as handbags, beddings, chair cloth and tarpaulin. The petitioners have set out in the petition the processes of manufacture carried out by them. According to the processes so described, handbags or 'thailis' are manufactured by stitching the raw material of selected sizes out of cotton canvas cloth or cotton niwar and attaching thereto by stitching cotton niwar straps for being used as handles and two pieces of select size of such cotton canvas cloth are stitched together to make a handbag or a 'thaili'. Similarly in the manufacture of beddings or hold-alls, the cotton canvas or the cotton niwar cloth of select sizes are stitched together for manufacture of beddings or hold-alls and cotton niwar straps are provided to fasten such beddings or hold-alls. Two pieces of such cloth of select sizes are joined together to make a hold-all or bedding with pockets and a flap and cotton niwar straps are provided. The petitioners manufacture tarpaulin or 'tadpatri' by stitching the borders of the chemical cotton canvas cloth pieces of various sizes and providing in the border aluminium eyelets for the purpose of fastening tarpaulin to the object which it is intended to cover by tarpaulin. So far as chair cloth is concerned, the petitioners purchase cotton chair cloth of 18' width in metre length and then stitch borders of such cloth to provide a groove thereon to fold with cloth to the chair. On 9th August, 1972, the petitioners made an application to the Commissioner of Sales Tax under section 52(1) of the Act for determination by the Commissioner whether the aforesaid articles manufactured and sold by the petitioners were cotton fabrics as defined in item No. 12 of the First Schedule to the Central Excises and Salt Act, 1944, and consequently exempt from tax under entry No. 15 of Schedule A to the Act. Along with the said application, the petitioners forwarded six bills in respect of the sales of goods of the aforesaid description manufactured and sold by them between the periods 17th April, 1972, to 27th June, 1972. The Commissioner of Sales Tax by his order dated 2nd February, 1973, held that chair covers were exempt under the said entry No. 15 while handbags, beddings and tarpaulin manufactured by the petitioners were not so exempt and were taxable under the residuary entry, namely, entry No. 22 in Schedule E to the Act. Against this decision of the Commissioner of Sales Tax, the petitioners went in appeal to the Maharashtra Sales Tax Tribunal. The said appeal being Appeal No. 17 of 1973 was dismissed by the Tribunal. Though the petitioners had an adequate alternative and equally efficacious remedy of coming in reference under section 61 of the Act to this High Court, the petitioners chose not to do so, but instead filed the present writ petition. As this writ petition was admitted, rule issued and the matter fully argued, I am not called upon to consider this question. In the petition, the petitioners' contention was that the articles sold by them, namely, handbags or 'thailis', beddings or hold-alls and tarpaulins, fell under the said entry No. 15 of Schedule A to the Act and were, therefore, exempt from tax under the Act. When this petition reached hearing before Padhye and Mohta, JJ., as mentioned earlier, the two learned Judges differed. Padhye, J., took the view that the definition of 'cotton fabrics' was not exhaustive and the use to which a commercial commodity prepared by cutting and stitching cotton fabric was put was not material so long as the commodity so created continued to have the essential characteristic of cotton fabric. Mohta, J., however, held that by the process of manufacture to which the petitioners subjected the cotton fabric purchased by them, the cotton fabric so purchased lost its identity and altogether a new commercial commodity came into being and the said entry No. 15 in Schedule A did not apply to the said articles and the said articles were taxable under the residuary entry No. 22 in Schedule E. In view of this difference of opinion between the two learned Judges, with the consent of Advocates on both sides, this writ petition was thereafter transferred for being heard at Bombay in exercise of the power conferred upon the Chief Justice of this High Court by the proviso to rule 1 of Chapter XXXI of the Bombay High Court Appellate Side Rules, 1960.
3. Schedule A to the Act contains a list of goods, the sale or purchase of which is free from all taxes, either absolutely or subject to the fulfilment of conditions set out in the relevant entry. Entry 15 as in force from 15th June, 1962, to 16th June, 1972, read as follows :
'15. Cotton fabrics as defined in the First Schedule to the Central Excises and Salt Act, 1944.'
4. The said entry was amended with retrospective effect from 17th June, 1972, by the Bombay Sales Tax (Amendment and Validating Provisions) Act, 1977 (Maharashtra Act No. 38 of 1977). The amended entry was as follows :
15. Cotton fabrics as defined in the First Schedule to the Central Excises and Salt Act, 1944, but excluding cotton tyre cord fabrics or warp sheets, on which additional duty of excise is not leviable or is not levied under the Additional Duties of Excise (Goods of Special Importance) Act, 1957.'
5. The amendment made in the said entry is, however, not relevant for our purpose. The question, therefore, which falls for our consideration is whether the goods sold by the petitioners fell within the meaning of the term 'cotton fabrics' in the said entry No. 15. For this purpose, one must look to the definition of 'cotton fabrics' as given in the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Excise Act'). Cotton fabric is defined in item No. 19 of the First Schedule to the Excise Act. The said entry, so far as it is material for the purposes of the present petition prior to its amendment by the Central Excises and Salt and Additional Duties of Excise (Amendment) Act, 1980, defined cotton fabrics as follows :
'19. Cotton fabrics -
'Cotton fabrics' means all varieties of fabrics manufactured either wholly or partly from cotton and includes dhoties, sarees, chaddars, bed-sheets, bed spreads, counterpanes, table-cloths, embroidery in the piece, in strips or in motifs and fabrics impregnated or coated with preparations of cellulose derivatives or of other artificial plastic materials but does not include any such fabric if it contains -
6. Padhye, J., held that in the Excise Act :
'........ The inclusive clause serves the purpose of enlargement by the method of illustrations. It emphasises that the use to which a commercial commodity prepared by cutting and stitching cotton yarn is put is not material so long as the commodity so created continues to have the essential characteristics of cotton fabric. Whenever it was intended that the definition of a genus must be restricted to specified species for the purpose of single point sales tax, expression 'that is to say' was used as will be seen from Schedule B of the Bombay Sales Tax Act ........'
7. Mohta, J., on the other hand pointed out that there was nothing uncommon in a statute containing a provision that certain words should bear a particular meaning. He further held that though the word 'include' was undisputably a word of enlargement, but it, like any other word, has to be understood against the background and context in which it was used. On well-recognised principles of interpretation of statutes, the meaning given by Padhye, J., to the word 'include' cannot be accepted. As pointed out in Craies on Statute Law, Seventh Edition, page 213 : 'There are two forms of interpretation clause. In one, where the word defined is declared to 'mean' so and so, the definition is explanatory and prima facie restrictive. In the other, where the word defined is declared to 'include' so and so, the definition is extensive, e.g., sheriff includes under-sheriff.' An extensive definition by using the word 'includes' extends the normal and natural meaning of the word defined by including within its scope what would otherwise be not comprehended within it. The things so included by extending the definition are however, not by way of illustrations. When a definition is an extensive one, all that it amounts is that the word carries in addition to its ordinary meaning the extended meaning given to it by the statute. Such extended meaning cannot be further extended by saying that the extended part of the definition is merely illustrative. The following passage which has been cited by Mohta, J., in his judgment from Maxwell on the Interpretation of Statutes, Twelfth Edition, page 270, may usefully be reproduced as setting out the principle of interpretation recognised by courts :
'Sometimes, it is provided that a word shall 'mean' what the definition section says it shall mean : in this case, the word is restricted to the scope indicated in the definition section. Sometimes, however, the word 'include' is used 'in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall 'include'. In other words, the word in respect of which 'includes' is used bears both its extended statutory meaning and 'its ordinary, popular, and natural sense whenever that would be properly applicable'.' Unfortunately, the discussion on the above point in both the differing judgments, so far as the present writ petition is concerned, was academic by reason of the amendment made in item No. 19 of the First Schedule to the Excise Act by the Central Excises and Salt and Additional Duties of Excise (Amendment) Act, 1980. By section 5 of the said Amendment Act the amendment to the said item No. 19 has been made with retrospective effect from 1st March, 1955. By the said amendment the definition of 'cotton fabrics' has been substituted by the following one :
'I. Cotton fabrics, other than (i) embroidery in the piece, in strips or in motifs, and (ii) fabrics impregnated, coated or laminated with preparations of cellulose derivatives, or of other artificial plastic materials -
(a) cotton fabrics, not subjected to any process
(b) cotton fabrics, subjected to the process of bleaching, mercerising, dyeing, printing, water-proofing, rubberising, shrink-proofing, organdie processing or any other process or any two or more of these processes.' As the amended definition has been retrospectively inserted in the Excise Act with effect from 1st March, 1955, it is on the basis of this amended definition that the present writ petition would fall to be decided. Unfortunately the attention of the learned Judges was not drawn to this amending Act. Before considering the effect that this amended definition has on the petitioners' case, it would also be convenient to refer to certain provisions of the Act to which also unfortunately the attention of the learned Judges was not drawn, namely, clauses (17) and (26) of section 2 of the Act. Section 2 of the Act is the interpretation clause, and clauses (17) and (26) thereof respectively defined the terms 'manufacture' and 'resale'. These clauses are as follows :
'(17) 'manufacture', with all its grammatical variations and cognate expressions, means producing, making, extracting, altering, ornamenting, finishing or otherwise processing, treating or adapting any goods; but does not include such manufactures or manufacturing processes as may be prescribed.'
'(26) 'resale', for the purposes of sections 7, 8, 9, 10, 12 and 13, means a sale of purchased goods -
(i) in the same form in which they were purchased, or
(ii) without doing anything to them which amounts to, or results in, a manufacture, or
(iii) being goods specified in any entry in Schedule B, without doing anything to them which takes them out of the description thereof in that entry, and the word 'resale' shall be construed accordingly.'
The importance of these statutory provisions lies in the fact that under the charging sections of the Act, for the purpose of levy of tax under the Act from the turnover of sales of a dealer, the turnover inter alia of resales of goods are to be deducted subject to the fulfilment of the conditions prescribed by those sections. Turning first to the definition of the term 'resale', in (Sales Tax Reference No. 51 of 1977 along with Sales Tax Reference No. 7 of 1978 decided on 26th November, 1982) Shree Ram Steel Rolling Mills v. State of Maharashtra and Metro Steel Rolling Mills v. State of Maharashtra  53 STC 202 by a Division Bench of this High Court (Madon, C.J., and Mrs. Sujata Manohar, J.), it has been held that the three sub-clauses of clause (26) of section 2 are not cumulative but alternative to one another, and therefore, if the sale of purchased goods falls within any of these three sub-clauses, it would amount to a resale of the purchased goods. Sub-clause (i) of clause (26) has no application to the case of the petitioners, because the goods purchased by them were not sold by them in the same form in which they were purchased. I will consider latter whether sub-clause (ii) of clause (26) applies to the case of the petitioners. Sub-clause (iii) has no application, because the goods in question are not specified in any of the entries in Schedule B to the Act. For sub-clause (ii) to apply, the sale of purchased goods must be without doing anything to them which amounts to or results in a manufacture. The term 'manufacture' has been given an artificial meaning by clause (17) of section 2. This clause fell for interpretation by another Division Bench of this Court (Madon, J., as he then was, and Kania, J.) in Commissioner of Sales Tax v. Dunken Coffee Manufacturing Co.  35 STC 493. After considering the various decisions on the point, the Division Bench held as follows (at pages 500-1) : 'The above discussion shows that the ratio of decided cases is that for an activity to amount to manufacture it must result in a different commercially article or commodity. It must not be a commodity which is commercially the same as it was before the activity was applied to it. In a given case, it may be that the ingredients are totally transformed and in another given case, it may be that they undergo some change, alteration or transformation and yet retain their essential character and properties. The test in all cases, therefore, is to ascertain whether the result is commercially a different commodity and it is irrelevant whether this result is produced by a mechanical or chemical process or otherwise. Even under the very wide definition of 'manufacture' to be found in clause (17) of section 2 of our Act the various activities set out therein must result in a different commercial commodity in order that such activities may amount to manufacture of goods. This definition must be interpreted bearing in mind the fact that it has been inserted in the setting and context of a sales tax legislation of which the pith and substance is a tax primarily on the sales of goods and subsidiary on the purchases of goods. The various activities enumerated in the definition, namely, producing, making, extracting, altering, ornamenting, finishing or otherwise processing, treating or adapting, have been specifically mentioned, lest any contention might arise that one or the other of them would not, in ordinary parlance and according to the ordinary notions, constitute manufacture. Each of these activities, however, before it can amount to manufacture must result in a commodity commercially different from the commodity or commodities to which the activity was applied. Merely selling the goods purchased under a different label or trade name will not amount to manufacture even if such label or trade name is known in the market as a commercial commodity different from that by which the goods purchased are known in the market. A different commercial commodity must come into being as a result of one of the activities enumerated in clause (17) of section 2 before it can be said that such commodity has been manufactured.'
8. The test, therefore, is to ascertain whether a commodity commercially different from the commodity purchased has come into existence as a result of a process or a manufacture. If it has not, then it would be a resale of purchased goods. If it has, then the sale of the purchased goods would not amount to a resale. There can be no dispute that beddings or hold-alls or handbags or 'thailis' are commercially different commodities from cotton fabric giving to that expression the wide meaning assigned to it in the amended definition in item No. 19 of the First Schedule to the Excise Act. The petitioners, therefore, could not be said to have resold the goods purchased by them for by applying a process of manufacture they converted the cotton fabric purchased by them into beddings or hold-alls and handbags or 'thailis'. It may, however, he pointed out that under section 41 of the Act, the State Government has the power by notification in the Official Gazette to exempt any specified class of sales or purchases from the payment of the whole or any part of any tax payable under the Act subject to such conditions as it may impose. In exercise of this power, the State Government by a Notification No. STA-1072/1544-M-1 dated 16th May, 1973, exempted wholly from tax with effect from 1st May, 1973, the following class of sales or purchases :
'Sales or purchases of articles of non-personal wear (excluding articles to which entry 40 in Schedule A or entry 16-A in Schedule E applies), specified in the appendix hereto, prepared from any textile fabrics, sold at a price not exceeding ten rupees per article.
(1) Cotton bags (Thellies)
(2) Baby blanket
(3) Kiddle cloth (Zoli)
(4) Baby bedsheet (Godhadi)
(5) Pillow cover
9. The Government has given this exemption by inserting sub-entry (2) in entry 68 of the parent notification under section 41 of the Act. This notification, however, does not help the petitioners, so far as the present petition is concerned, because the period in question in this writ petition is prior to the date of the coming into force of the said notification. The petitioners, however, would not be liable to pay any tax on the sales of cotton handbags or 'thailis' on and from 1st May, 1973.
10. So far as tarpaulin is concerned, it is unnecessary to consider whether the tarpaulin sold by the petitioners is commercially a different commodity from the goods purchased by the petitioners, for in Pokardas & Brothers v. State of Gujarat  51 STC 88 in a very detailed and considered judgment the Gujarat High Court has taken the view that in view of the retrospectively amended definition of 'cotton fabrics' in item No. 19 of the First Schedule to the Excise Act, tarpaulin sold by the assessees in that case was cotton fabric. The goods sold by the assessees in the Gujarat case were identical with the goods manufactured and sold by the petitioners in this case. In view of the judgment, therefore, tarpaulin, assuming even it was a commercially different commodity, would fall under entry No. 15 in Schedule A, and would also be exempt from tax.
11. In the result, I answer the question referred to me as follows :
Handbags and thailis manufactured by the petitioners out of cotton fabrics are not covered by entry 15 in Schedule A to the Bombay Sales Tax Act, 1959. Beddings and hold-alls manufactured by the petitioners out of cotton fabrics are also not included in entry No. 15 of Schedule A to the Bombay Sales Tax Act, 1959. Both the above classes of articles not having been specifically provided for in any other entry, would therefore, fall under the residuary entry, namely, entry No. 22 in Schedule E to the said Act. Tarpaulin manufactured and sold by the petitioners out of cotton fabrics fall under the said entry No. 15 and would, therefore, be exempt from tax.
12. Padhye, J., has now retired. Mohta, J., is sitting singly on the Nagpur Bench of this High Court. This petition, in view of the difference of opinion between these two learned Judges, was transferred to Bombay as mentioned above. Both the learned Advocates have agreed that instead of sending back the matter to Nagpur and constituting another Division Bench of which Mohta, J., would be a member, it would be better if the writ petition is forthwith finally disposed of in the light of this judgment by the Bench which is at present hearing sales tax references and of which I am a member.
13. Accordingly the matter will be placed before the aforesaid Sales Tax Bench forthwith for final disposal.
[In view of the opinion of the Chief Justice, the case came on for final disposal before the Division Bench and the court delivered the following judgment :-]
14. The judgment of the Court was delivered by
MADON, C.J. - In accordance with the opinion of the majority of the Judges who have heard this writ petition and for the reasons set out in the judgment delivered today on the reference made in view of the difference of opinion between Padhye, J., and Mohta, J., we partly allow this writ petition by setting aside the impugned order of the Commissioner of Sales Tax, Maharashtra State, dated 2nd February, 1973, and the order and judgment of the Maharashtra Sales Tax Tribunal, Bombay, dated 22nd March, 1974, in Appeal No. 17 of 1973 from the said order of the Commissioner of Sales Tax in so far as the said orders and judgment relate to sales of tarpaulin manufactured and sold by the petitioners. We confirm the said orders and judgment, so far as the other articles manufactured and sold by the petitioners are concerned.
15. The rule issued in this petition is made absolute to the above extent.
16. There will be no order as to the costs of this petition.