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Khanna Coke Industries and anr. Vs. the Assistant Commissioner (Judicial), Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ No. 485 of 1976 and Writ Petition Nos. 384, 423 and 424 of 1977
Judge
Reported in[1987]64STC335(All)
AppellantKhanna Coke Industries and anr.
RespondentThe Assistant Commissioner (Judicial), Sales Tax and anr.
DispositionPetition allowed
Cases ReferredBijli Cotton Mills v. Estate Officer
Excerpt:
- - (1b) whether clause (3) of article 226 of the constitution will bar a petition under clause (1) of that article in cases where the remedy by way of a suit or any other remedy is not effective or adequate to redress the injury complained of in the negative......as such liable to lower rate of tax as provided in section 15 of the act.2. on the finding that coke briquettes are manufactured by mechanically pressing the mixture of coal-dust, multani mitti and molasses, the sales tax officer held it to be a product of coal and an unclassified item. the rate of tax under sub-section (2-a) of section 3-a of the u.p. sales tax act in respect of goods other than those referred in sub-sections (1) and (2) of the section at the point of sale by manufacturer or importer is seven per cent. it is not disputed that coke briquettes are not mentioned in any schedule or notification issued by the state government.3. section 14(ia) of the central sales tax act reads as under :14. it is hereby declared that the following goods are of special importance in inter.....
Judgment:

R.M. Sahai, J.

1. In these petitions the only controversy is whether coke briquettes manufactured by the assessee are declared goods as contemplated in Section 14 of the Central Sales Tax Act, as such liable to lower rate of tax as provided in Section 15 of the Act.

2. On the finding that coke briquettes are manufactured by mechanically pressing the mixture of coal-dust, multani mitti and molasses, the Sales Tax Officer held it to be a product of coal and an unclassified item. The rate of tax under Sub-section (2-A) of Section 3-A of the U.P. Sales Tax Act in respect of goods other than those referred in Sub-sections (1) and (2) of the section at the point of sale by manufacturer or importer is seven per cent. It is not disputed that coke briquettes are not mentioned in any schedule or notification issued by the State Government.

3. Section 14(ia) of the Central Sales Tax Act reads as under :

14. It is hereby declared that the following goods are of special importance in inter State trade or commerce:-.

ia) coal, including coke in all its forms, but excluding charcoal:.

4. This Sub-clause came up for interpretation before the Supreme Court in India Carbon Ltd. v. Superintendent of Taxes, Gauhati [1971] 28 STC 603 (SC). The entry was held to be very wide. The view taken by the High Court that it must be coke which had been derived or acquired from coal by following the usual process of heating or burning was not approved.

5. In State of Gujarat v. Sakarwala Brothers [1967] 19 STC 24 (SC) the Supreme Court while interpreting an entry in the Bombay Sales Tax Act held that sugar included within its ambit all forms of sugar.

6. In Tungbhadra Industries Ltd. v. Commercial Tax Officer [1960] 11 STC 827 (SC) the argument that conversion of raw groundnut oil from its raw state by absorption of the hydrogen atoms, into stearic acid which resulted in semi-solid condition resulted in product of groundnut oil was not accepted.

Coke is a hard, cellular mass of carbonaceous material. Coke is essentially a partially graphitized and cellular form of carbon. Coke is solid residue that remains after certain types of bituminous coals are heated to a high temperature out of contact with air until substantially all of the volatile constituents of the coal have been driven off. The residue consists principally of carbon....

7. The petitioner manufactures coke briquettes by compiling the hard coke breeze mechanically with the help of cinders which is usually 5 per cent of the total hard coke breeze. In the compilation of the hard coke breeze, 95 per cent of the hard coke breeze, which is known as coal dust or breeze coke is taken which is compiled with the help of clay and molasses. In the counter-affidavit filed by the Sales Tax Officer the process of manufacture is described thus: the petitioner manufactures the coke briquettes (tikli) from coal-dust, breeze (half burnt coke), multani mitti, molasses and calex powder. The assessing authority found that coal briquettes were produced by mixing molasses and certain other things with coal-dust. As the produce thus obtained, was a new commodity the petitioner was liable to pay tax at the higher rate.

8. The allegation that coke briquettes are meant for domestic kitchen consumption is not denied in the counter-affidavit. The coke therefore manufactured by mechanical pressing is used for the same purpose as coke. The contents of coke briquettes, namely, moisture, volatile matters, ash and carbon are the same as in any other coke. The mere change in shape by mechanical pressing does not change the commodity. It remains the same. In Webster's Third New International Dictionary 'form' has been defined as 'the shape and structure of something as distinguished from the material of which it is composed'. Mere change of shape or structure in the raw material does not result in production of a new commodity. And even if it is so the entry is wide enough to cover in its fold commodities which remain the same despite change in shape. Coke briquettes thus being only a preparation of coke dust are covered by the expression 'coke in all its forms'.

9. Relying on Delhi Cloth and General Mills v. R.R. Gupta, Commercial Tax Officer AIR 1977 SC 2086 the learned standing counsel has urged that the petitioner having an alternative and efficacious remedy by way of appeal and revision, this Court should refuse to interfere under Article 226 of the Constitution of India particularly as it relates to interpretation of an entry in the Sales Tax Act which should be done by this Court under Section 11(4) in its advisory jurisdiction.

10. In the petitioner's case there is no dispute on facts. The process of manufacture indicated in the assessment order and the appellate order are not in question. Even if the matter comes to this Court by way of reference under Section 11(4) of the Act, this Court shall answer the question of law on these very facts. Moreover notices have been issued for assessment years 1974-75, 1975-76 and 1976-77. The Sales Tax Officer is bound to follow the decision given by the appellate court. It would create huge liability each year. In such circumstances it is difficult to agree that the petitioner has an efficacious remedy by way of appeal or revision.

11. In Engineering Traders v. State of U.P. 1973 UPTC 91 a Full Bench of our Court repelled the argument of alternative remedy in similar circumstances.

12. In India Carbon Ltd. case [1971] 28 STC 603 (SC) the Supreme Court decided the controversy whether petroleum coke was covered by 'coke in all its forms' in an appeal against an order passed by the High Court of Assam and Nagaland in the exercise of its writ jurisdiction.

13. A five Judges Full Bench of this Court while interpreting amended Article 226 of the Constitution of India in Bijli Cotton Mills v. Estate Officer/Secretary, National Textile Corporation (Civil Miscellaneous Writ No. 416 of 1977 decided on 10th March, 1977) 1977 All. WC 191 answered the following question referred to it:

(1b) Whether Clause (3) of Article 226 of the Constitution will bar a petition under Clause (1) of that article in cases where the remedy by way of a suit or any other remedy is not effective or adequate to redress the injury complained of

in the negative.

14. The Supreme Court in Delhi Cloth and General Mill's case AIR 1977 SC 2086 affirmed the High Court's decision that there was no error apparent on the face of the record as question whether tyre cord fabric could be described as a fabric or merely cord pretending to pass off as a textile fabric was a technical question of which two views could be possible and it required careful consideration of the technical process of manufacturing. As indicated by us there is no dispute on facts. We have proceeded on the facts found by the sales tax authorities. The decision thus in Delhi Cloth and General Mill's case AIR 1977 SC 2086 is not helpful.

15. The result is that this petition succeeds and is allowed. The order passed by the Sales Tax Officer is quashed. The notices for assessment years 1974-75, 1975-76 and 1976-77 are also quashed. The petitioner shall be entitled to one set of costs.


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