M.C. Desai, C.J.
1. This is a reference under Section 11(1) of the U.P. Sales Tax Act made by the Judge (Revisions) referring the following question for this Court's opinion :
Whether crushed and sieved tobacco was exempt from sales tax under the U.P. Sales Tax Act by virtue of exemption granted under Section 4(1)(a) of the Act under Notification No. S.T. 119-X-928-1948, dated 7th June, 1948, item No. 9.
2. The same question has been referred in the connected reference. The reference has been made at the instance of the applicants who are dealers in tobacco. No tax under the Act is payable on the sale of goods which are notified by the State Government in the Official Gazette. The State Government have issued a Notification No. S.T. 119-X-928- 1948, dated 7th June, 1948, notifying the goods which are exempt from the payment of sales tax, and item No. 9 of the notification is :
Tobacco leaves, whether green or dried, not having been subjected to any process of manufacture.
3. The applicants deal in 'crushed and sieved' tobacco. Crushing and sieving consists of crushing dried tobacco leaves and passing the crushed tobacco through a sieve. The applicants claim that crushed and sieved tobacco is covered by item No. 9 of the notification and that they are exempt from payment of tax on sale of it. Their contention is that crushing and sieving is not a process of manufacture at all.
4. Tobacco in any form, whether cured or uncured and whether manufactured or not, and including the leaf, stalk and stem of the tobacco plant is an excisable commodity within the meaning of the Central Excises and Salt Act No. 1 of 1944. 'Manufacture' is denned in the Act [see Section 2(f)] to include 'any process incidental or ancillary to the completion of a manufactured product' and, in relation to tobacco, it includes 'the preparation of cigarettes, cigars, cheroots, bins, cigarette or pipe or hookah tobacco, chewing tobacco or snuff.' Excise duty is payable on tobacco produced or manufactured in India at the rates set forth in the First Schedule to the Act. Different rates of excise duty are prescribed for different kinds of un-manufactured tobacco and for different kinds of manufactured tobacco. Tobacco flue cured for use in the manufacture of cigarettes, smoking mixtures for pipes and cigarettes is treated as un-manufactured tobacco. All excisable goods stored in the premises of a licensee are to be stacked in an orderly manner, so as to permit of actual counting and, if the Collector so requires, packages containing goods of the same kind and with the same quality in each are to be kept together in separate lots and the goods are to be arranged in separate rows, each containing the same number of packages of uniform size and weight: see Rule 223 of the Central Excise Manual. The applicants contend that tobacco leaves are crushed and sieved in order that their storage is in conformity with the above rule. It is not possible to store tobacco leaves as such ; they must be crushed and separated from dust through sieving. Because crushing and sieving is done in order to comply with the rule regarding storage, it is contended on their behalf, that it does not amount to subjecting the tobacco leaves to a manufacturing process. It was also contended that crushing and sieving tobacco leaves does not amount to manufacturing within the meaning of the Act, because crushing and sieving is not incidental or ancillary to the completion of a manufactured product. According to the definition of 'manufacture' an act does not amount to manufacturing unless it is incidental to the completion of a manufactured product. Crushing and sieving may be necessary as preliminary processes for bringing into existence a manufactured product, but further processes are required to be done and, therefore, they cannot be said to be incidental or ancillary to the completion of a manufactured product. The other processes which are required to be done in order to bring into existence a manufactured product are the only processes, according to the argument, which can be said to be incidental or ancillary to the completion of a manufactured product.
5. In these references we have to interpret the words 'subjected to any process of manufacture' occurring in the notification issued by the State Government in exercise of the power conferred by Section 4 of the U.P. Sales Tax Act, and the meaning given to 'manufactured' in the Central Excises and Salt Act, which is for purposes of that Act alone, is not conclusive. What is manufacturing or is a process of manufacture is not defined in the Sales Tax Act. We must, therefore, consider what is the ordinary meaning of manufacture and not be guided by the special meaning given to it in the Central Excises and Salt Act.
6. In McNicol v. Pinch  2 K.B. 352, the question arose whether M manufactured saccharin within the meaning of Finance Act, 1901, when he subjected '330 saccharin' (i.e., saccharin 330 times as sweet as sugar) to a chemical process, the result of which was that in some cases '550 saccharin' and in some a mixture sweeter than 330, but not as sweet as 55 saccharin, and in a few cases a mixture less sweet than 330 saccharin were produced, and it was answered in the negative. What was stressed by Bray and Darling, JJ., was that it was saccharin before, and it was saccharin after, the so-called manufacturing process. The article began by being saccharin and remained saccharin ; it was not converted into something else and, therefore, it was held that the process was not one of manufacturing. Darling, J., observed at page 361 :
I think the essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made.
7. When a person makes a box out of wood, or boots out of leather, he can be said to manufacture a box or boots, because a box is an article different from a log of wood and boots are an article different from leather, but when M began with saccharin and finished with saccharin he could not be said to have manufactured saccharin.
8. In Kent v. Astley (L.R. 5 Q.B. 19), people were engaged in getting large blocks of slate to another part of the quarry and splitting them with hammers and chisels into laminae or slates, edging them square or dressing them with iron knife by hand into separate articles and dividing them into quantities for sale and it was held that the process of shaping slates was a 'manufacturing process'.
9. In North Bengal Stores, Ltd. v. Board of Revenue, Bengal  1 S.T.C. 157, Das, J., said at page 163 :
'To manufacture goods' in common parlance means 'to bring goods into being'.... The essence of manufacturing...is that something is produced or brought into existence which is different from that out of which it is made, in the sense that the thing produced is by itself commercial commodity which is capable as such of being sold or supplied. It does not mean that the materials with which the thing is manufactured must necessarily lose their identity or become transformed in their basic or essential properties.
10. He pointed out that a goldsmith manufactures ornaments out of gold, a cobbler manufactures boots out of leather, a carpenter manufactures a box out of wood and a tailor manufactures a suit out of cloth ; even though gold remains gold, leather remains leather, wood remains wood and cloth remains cloth, when the ornaments, the boots, the box and the suit are prepared, there is manufacturing, because the articles brought into existence are commercially different commodities.
11. Cutting trees into logs or rafters which were sold as such was held to be manufacturing in State of Madhya Pradesh v. Wasudeo  6 S.T.C. 30. The reason given by Bhutt, J., was that the logs or rafters had a definite commercial value. He adopted the Century Dictionary meaning of the word 'manufacture', e.g.,
the production of articles for use from raw or prepared materials, by giving these materials new forms, qualities, properties or combinations, whether by hand labour or by machinery.
12. This definition was approved by Mc Reynolds, J., in American Food Growers v. Brogdex Co. (75 L. Ed. 801 ; 283 U.S.1). Because the raw materials, viz., trees were given a different shape and form which made them fit for use either directly or, if necessary, by applying some more labour and skill when they were converted into logs or rafters the conversion was held to be manufacturing.
13. In the State of Bihar v. Chrestien Mica Industries Ltd.  7 S.T.C. 626, Ramaswami, C.J., interpreted 'to manufacture' occurring in a Sales Tax Act to mean 'to bring into being something in a form in which it will be capable of being sold or supplied, in the course of business', and said at page 631 :
The essential point to remember is that something is brought into existence which is different from that originally existing, in the sense that the thing produced is by itself a commercial commodity and is capable as such of being sold or supplied. It is not necessary that the stuff or material of the original article must lose its character or identity or it should become transformed in its basic or essential properties.
14. He, with the concurrence of Raj Kishore Prasad, J., held that sorting and processing crude mica into split mica, which is a commercial commodity, amounts to manufacturing.
15. Breaking boulders into gitti was held to be a process of manufacture in G.R. Kulkarni v. The State  8 S.T.C. 294. Hidayatullah, C.J., and Chaturvedi, J., held that boulders themselves are a marketable commodity and if they had been sold as such it would not have been a sale of manufactured goods, but gitti is a different marketable commodity and the conversion of boulders into gitti amounted to manufacturing. The learned Judges observed at page 296 :
The essence of manufacture is the changing of one object into another for the purposes of making it marketable,' and that 'when the boulders are broken into metal or gitti there is some process, manual though it may be, for the purpose of shaping the stones into another marketable commodity.
16. The meaning that Narasimham, C.J., and Das, J., would give to the word 'manufacture' in a Sales Tax Act is 'to bring into existence something in a form in which it is capable of being sold or supplied in the course of business': see Srirangam Brothers v. Sales Tax Officer  10 S.T.C. 257.
17. According to Abbott, C.J., in R. v. Wheeler (1819) 2 B. & Ald. 345 ; 106 E.R. 392, 'something of a corporeal and substantial nature, something that can be made by man from the matters subjected to his art and skill, or at the least some new mode of employing practically his art and skill is required to satisfy the word 'manufacture' ': see also In re Chinniah, Manager, Sangu Soap Works (A.I.R. 1957 Mad. 755).
18. Having regard to the meaning given to the word 'manufacture' in the above cases, I am of the opinion that when tobacco leaves were crushed and sieved they were subjected to a process of manufacture. It is immaterial that the nature of the article remains the same; what is material is that the process of crushing and sieving brought into existence an article commercially different from tobacco leaves. It has been found as a matter of fact that this article has a commercial name. Tobacco leaves not subjected to any process at all are known as tobacco Kampila, or tobacco Poorbi or tobacco Rassa, whereas crushed tobacco leaves are known as Raddi or Rafvi and crushed and sieved tobacco leaves are known as Kampila dana, or Dana or Chhora. The process of crushing and sieving is not different from the process of breaking boulders into gitti, splitting crude mica into laminae or preparing slates. In order that the process to which an article is subjected should be a manufacturing process it is not essential that the article must change its nature; it is enough if it becomes a different commercial article. The question whether crushed and sieved tobacco is a commercially different article is a question essentially of fact and has been answered in the affirmative by the Judge (Revisions). In view of his finding that it is commercially a different article I must hold that crushing and sieving is a manufacturing process. Only tobacco leaves not subjected to any process of manufacture are exempted under the notification issued by the State Government and Kampila dana, Dana or Chhora is an article commercially different from tobacco leaves and is not covered by the notification.
19. The notification has now been amended with effect from 1st October, 1952, and crushed and sieved tobacco has been expressly exempted from the payment of sales tax. This amendment followed two conflicting instructions given by the Sales Tax Commissioners to Sales Tax Officers. The amendment does not necessarily show that the State Government did not intend to include crushing and sieving in a manufacturing process within the meaning of the notification; the' amendment might have been the result of a change in the policy of the State Government.
20. My answer to the question would, therefore, be in the negative.
R.S. Pathak, J.
21. I agree and have nothing to add.
22. Our answer to the question is 'No'. We direct that a copy of this judgment be sent to the Judge (Revisions) Sales Tax, and the Commissioner of Sales Tax under the signature of the Registrar and the seal of the Court, as required by Section 11 (6) of the U.P. Sales Tax Act. We further direct that the Commissioner, Sales Tax, shall get his costs of this reference, which we assess at Rs. 100 from the applicant-assessee.