M.C. Desai, C.J.
1. The Judge (Revisions), Sales Tax, U. P., has at the assessee's instance submitted to this Court a statement of the case under Section 11 (2) inviting this Court's answers to the following two questions:
1. Whether in the circumstances of the case the assessees are manu facturers and liable to pay tax as such on their sales of linseed oil ?
2. Whether linseed oil is an edible oil within the meaning of the notification dated 8th June, 1948, issued under the U.P. Sales Tax Act?
2. The assessee is a dealer in linseed oil, which is taxable at the point of sale by its manufacturer. It buys oil-seeds and gets them crushed at the mill of another person installed in his premises. The assessee has no mill and does not get oil-seeds converted into oil at its own premises. It pays the owner of the mill his charges for the labour of crushing oil-seeds into oil, brings linseed oil to its premises and sells it. The question is whether it is a manufacturer of linseed oil or not. The Judge (Revisions) answered it in the affirmative observing:
If the assessees had employed a labourer for crushing oil-seeds at their own place they would have been undoubtedly manufacturers of the oil, not because they themselves produced the oil but because they paid for the work which was done and also because they were the owners of the oil-seeds. I, therefore, fail to see how they cease to be the manufacturers if instead of engaging a labourer and getting the work done at their place they went to the mills and paid for the oil seeds being crushed and converted into oil....So far as the oil in dispute is concerned the payment of charges was made by the assessees and they were, therefore, in the position of manufacturers.
3. We agree with the view taken by the Judge (Revisions).
4. Converting oil-seeds into oil is undoubtedly manufacturing oil and it was not disputed before us that linseed oil has been manufactured. As linseed oil has been manufactured, there must be some manufacturer and the only two persons who can be the manufacturers are the assessee and the owner of the mill. The owner of the mill cannot be the manufacturer, because he did not own the oil-seeds or the oil produced by him, as he did not buy the oil-seeds from the assessee nor sold the oil to him and charged no price when he delivered the oil to it but only his charges for the labour of crushing the oil-seeds into oil. His position is simply that of an agent to do the work which could have been done by the assessee itself. The assessee could have crushed the oil-seeds itself or through a servant or agent employed by it. In order to be a manu facturer it is not necessary that the person himself must manufacture. Qui facit per alium facit per se and if he gets oil-seeds crushed into oil through a servant or agent the law regards him as having done the crushing himself. If he himself crushes oil-seeds into oil he would undoubtedly be the manufacturer and when the law regards him as the actual crusher when he gets the crushing done by a servant or agent, it means that the law regards him as the manufacturer. The owner of the mill does not do any business in oil and does not crush oil-seeds into oil in order to deal in it; his business is not to sell oil but to let out on hire his mill and the production of oil from oil-seeds is only an incidental result of his letting out his mill to the assessee. When he did not own the oil-seeds he could not be the manufacturer of the oil produced by him.
5. In order that a person is a manufacturer of linseed oil it is not essential that he should himself produce oil from oil-seeds or should produce it with his own machinery or should produce it in his own pre mises. He can be a manufacturer if what he gets done through others is deemed to be his act and the act amounts to manufacturing.
6. In 33 Halsbury's Laws of England, Third Edition, 'Revenue', paragraph 407, it is said :
A person is deemed to make goods or to apply a process if the goods are made, or the process is applied, by another person to his order under any form of contract other than a purchase.
7. Here the oil was produced by the mill owner to the assessee's order under a certain form of contract other than a purchase and the assessee is deemed to manufacture oil. It is said in 55 Corpus Juris Secundum, 'Manufacturers', para. 1 at page 673, that-
everyone who manufactures is not embraced within the legal meaning of the term, but rather only those who manufacture articles of trade as the principal part of their business. A manufacturer makes to sell and depands for his profit on the labour which he bestows on the raw material.
8. The mill owner, though he can be said to have manufactured oil, is not himsilf the manufacturer, because he did not manufacture oil as the principal part of his business, e.g., of selling oil. Again it is said-
Thus the term 'manufacturer' applies both to him who actually makes and to him who causes to be made.
9. This makes it clear that the assessee is the manufacturer though it only caused oil to be produced instead of producing it itself. In determining whether or not a person is a manufacturer the Court first ascertains what his business consists in and then whether or not that business is manufacture. And everyone who manufactures is not a manufacturer ; the manufacture may be merely incidental to another business; thus a farmer who makes articles from his produce un doubtedly manufactures them but is not a manufacturer because his business is to produce the raw material and the manufacture is not in his case a business by itself but only an incident to his farming : see In re Chandler cited in 55 C.J.S. at page 673. Further support for the view that we take is to be had in Srirangam Brothers v. Sales Tax Officer  10 S.T.C 257, which laid down that the word 'manufacturer' occurring in the notification exempting from sales tax gold ornaments, 'when sold by the manufacturer who charges separately for the value of gold and the cost of manufacture' means 'the first owner of the finished product for whom it is made, either by his paid employees or even by independent artisans on receipt of raw materials and labour charges from him'. The assessee in that case was a person carrying on business of selling gold ornaments. It did not have a factory for the manufacture of ornaments and used to supply gold to independent artisans who made it into ornaments with the help of their own tools either in their own houses or in the assessee's shop and the assessee paid them labour charges and the learned Judges held that it was a manufacturer of ornaments within the meaning of the notification. In the same way the assessee in the instant case should be held to be a manufacturer of linseed oil. We may also refer to the definition of 'manufacturer' contained in Section 41 of Finance (No. 2) Act, 1940, 3 and 4 Geo. 6 Ch. 48 which is 'a person who carries on ...a business of making goods or of applying any process in the course of the making of goods'. This definition was enacted by Parliament in connection with the use of the word in provisions relating to the purchase tax. We are not concerned in the instant case with the definition contained in the English Act but the definition does support the view that we take of the meaning of 'manufacturer' as used in the U.P. Sales Tax Act, e.g., that a manufacturer must carry on the business of making goods. The owner of the mill does not carry on the business of producing oil from oil-seeds; his business, as we said earlier, is that of hiring out his mill to anybody who wants any crushing to be done on it.
10. Coming to the second question it has been conceded by counsel that the answer must be in the affirmative in view of the decision of this Court in Chandausi Oil Mills v. Sales Tax Commissioner  12 S.T.C. 310.
11. Our answers to both questions are in the affirmative.
12. We direct that copies of this judgment under the seal of the Court and the signature of the Registrar shall be sent to the Judge (Revisions) Sales Tax and the Commissioner of Sales Tax, U. P.
13. Considering that each party succeeds in part, we order that cost of this reference shall be borne by the parties themselves. Counsel's fee is assessed at Rs. 100.