R.N. Misra, C.J.
1. The Member, Additional Sales Tax Tribunal, Orissa, has stated this case and referred the following two questions for opinion of the court under Section 24(1) of the Orissa Sales Tax Act, 1947 (hereinafter referred to as the 'Act') :
(1) Whether, on the facts and in the circumstances of the case, the Additional Sales Tax Tribunal is justified in holding that there is practically no change when siali leaves are pinned together as siali khalli and there is no sub- stantial change in the identity to attract liability as a distinct separate goods at the point of sale under the Orissa Sales Tax Act, 1947 ?
(2) Whether, on the facts and in the circumstances of the case, the Additional Sales Tax Tribunal is justified to annul the tax levied in respect of siali khallis prepared out of siali leaves on which purchase tax has been paid ?
2. The assessee is a registered dealer under the Act and dealt inter alia in siali leaves during the period ending 1966-67. He purchased siali leaves and paid tax on the purchased turnover. On a finding that the assessee had, after purchase of siali leaves, pinned them up and had sold them as siali khallis and thus had converted siali leaves into a new commodity, the assessing officer levied tax of 5 per cent on the sales turnover of khallis. On the assessee's appeal, the Assistant Commissioner of Sales Tax found that siali leaves and khalli were two different commodities and sales turnover thereof was liable to tax under Section 5(1) of the Act. The Tribunal in second appeal by the assessee observed:
I am convinced that there is practically no difference between siali leaves and the siali khallis. Khalli is only brought into existence by stitching the ends of the leaves by bamboo pins and by that process it is made more acceptable to the consumer. In that way there is no substantial change in the identity and no new product has been brought into existence. Hence the tax on the sale of khalli should be annulled.
3. In spite of notice the assessee does not appear.
4. The learned standing counsel contends that siali leaves and khalli are two different commercial commodities and one is not a substitute of the other. A customer in need of khallis would not accept siali leaves in satisfaction of his demand in the market. Since they are two different commercial commodities, according to the learned standing counsel, the Sales Tax Officer and the first appellate authority were right in holding that the sales turnover of khallis was liable to tax and the Additional Sales Tax Tribunal went wrong in holding that sale of khallis was exempt from a fresh set of tax as purchase tax had already been paid on it. We are of the view that the principle indicated by a Bench of three learned Judges of the Supreme Court in the case of Deputy Commissioner of Sales Tax, Ernakulam v. Pio Food Packers AIR 1980 SC 1227 had rightly indicated the guideline. The court in that case was considering whether whole pineapples when converted into canned pineapple slices constituted a different commodity. The court observed :
6. A large number of cases has been placed before us by the parties, and in each of them the same principle has been applied : Does the processing of the original commodity bring into existence a commercially different and distinct article Some of the cases where it was held by this court that a different commercial article had come into existence include Anwarkhan Mehboob Co. v. State of Bombay  11 STC 698 (SC) (where raw tobacco was manufactured into bidi patti), A. Hajee Abdul Shukoor & Co. v. State of Madras  15 STC 719 (SC) (raw hides and skins constituted a different commodity from dressed hides and skins with different physical properties), State of Madras v. Swasthik Tobacco Factory  17 STC 316 (SC) (raw tobacco manufactured into chewing tobacco) and Ganesh Trading Co., Karnal v. State of Haryana  32 STC 623 (SC) (paddy dehusked into rice). On the other side, cases where this court has held that although the original commodity has undergone a degree of processing it has not lost its original identity include Tungabhadra Industries Ltd., Kurnool v. Commercial Tax Officer, Kurnool  11 STC 827 (SC) (where hydrogenated groundnut oil was regarded as groundnut oil) and Commissioner of Sales Tax, U. P., Lucknow v. Harbilas Rai and Sons  21 STC 17 (SC) (where bristles plucked from pigs, boiled, washed with soap and other chemicals and sorted out in bundles according to their size and colour were regarded as remaining the same commercial commodity, pigs bristles).
7. In the present case, there is no essential difference between pineapple fruit and the canned pineapple slices. The dealer and the consumer regard both as pineapple. The only difference is that the sliced pineapple is a presentation of fruit in a more convenient form and by reason of being canned it is capable of storage without spoiling. The additional sweetness in the canned pineapple arises from the sugar added as a preservative. On a total impression, it seems to us, the pineapple slices must be held to possess the same identity as the original pineapple fruit.
The court then referred to some American precedents and proceeded to say :.Although a degree of processing is involved in preparing pineapple slices from the original fruit, the commodity continues to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it. It is contended for the revenue that pineapple slices have a higher price in the market than the original fruit and that implies that the slices constitute a different commercial commodity. The higher price, it seems to us, is occasioned only because of the labour put into making the fruit more readily consumable and because of the can employed to contain it. It is not as if the higher price is claimed because it is a different commercial commodity. It is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a can of pineapple slices he has in mind something very different from fresh pineapple fruit. Here again, the distinction in the mind of the consumer arises not from any difference in the essential identity of the two, but is derived from the mere form in which the fruit is desired.
If pineapple slices canned in tins with appropriate sweetened preservative added are not different from the pineapple fruit itself, it is indeed difficult to accept the submission of the learned standing counsel that siali leaves when put together with thin bamboo stickers would make a different commercial commodity known as khalli. When the pineapple fruit is cut into slices and the slices are cooked up in sugar-mixed juice and canned, there is no scope for restoring the slices back to the position of a whole fruit. Humpty dumpty after it had a fall can no more be put back into its original position. Siali leaves in khalli can, however, be restored to their original position as and when desired by removing the stickers.
The use to which siali leaves are put is more or less the same to which khallis also would be put except that a single leaf would be smaller while a combination of 4-5 leaves together which makes a khalli would provide a larger base to cut upon. The leaf is essentially a substitute for a plate and when a larger material is necessary these leaves are joined up. The joining is by such a method that they do not lose their identity at all, and as we have just said, if khallis are not sold and there be demand for sale of leaves, the dealer would be entitled to restore the khallis to the earlier form of leaves and cater to the demand of the customer by supplying leaves. Such being the case, there can be no justification for the contention that khalli is different from siali leaves.
5. Though two questions have been referred, they are really one, and our answer would be that on the facts and in the circumstances of the case, the Additional Sales Tax Tribunal was justified in holding that there was practically no change when siali leaves were pinned together as siali khalli and there was no substantial change in the identity to attract liability as a distinct separate goods at the point of sale so as to be liable to tax as an unspecified goods.
6. The assessee did not appear. We, therefore, make no order for costs.
B.K. Behera, J.
7. I agree.