- (1.) OM PRAKASH, J. This revision is directed against impugned order dated August 23, 1988 passed by the Sales Tax Tribunal, Lucknow.
(2.) ONE of the questions is whether on the facts and in the circumstances of the case the Sales Tax Tribunal was justified in holding that the raw material was not purchased prior to October 1, 1982. The relevant facts are that a partnership deed was executed on September 3, 1982, for carrying on business of brick kiln and (the same) land was transferred under that agreement on the same day by one of the partners towards his capital contribution. After the land was contributed by one of the partners as his capital, the partnership concerned applied to the concerned authorities for grant of licence for mining on November 14, 1982. On these facts, the Sales Tax Commissioner who passed the impugned order under section 4-A (3) of the U. P. Sales Tax Act, as it was then, took the view that the production had started from before October 1, 1982, inasmuch as the land was acquired by the partnership concerned on September 3, 1982. He was of the view that land was the raw material for the business of brick kiln and that having been acquired by the partnership on September 3, 1982, production would be deemed to have commenced from before October 1, 1982. The Sales Tax Tribunal rejected such view taken by the Sales Tax Commissioner in the following words : " Basic raw material for brick kiln industry is no doubt earth/soil which is obtained from land but unless the land is mined, the earth which is basic raw material of the brick cannot be obtained. In view of this fact mere acquiring of land does not amount to acquiring of earth. In fact land from which earth is extracted is not the basic raw material but the earth which is extracted from the land is the basic raw material and since land cannot be extracted without obtaining a licence for the purpose, the date of commencement of production is definitely after October 1, 1982. "
(3.) FOR brick kiln business, land by itself is not the raw material. If one has a little idea of the brick kiln business then it will not be difficult to understand that it is not the land but the clay which is collected from a particular area for manufacturing bricks is the raw material and, that is, possible only after necessary mining permit is obtained. In this case mining permit was obtained on November 14, 1982, and prior to that, extraction of clay from the land which was the asset of the partnership concern, was not possible. Therefore, the view taken by the Sales Tax Commissioner that as the land was acquired by the partnership on September 3, 1982, the production would be deemed to have commenced right from that ate, is patently erroneous. Another question is whether the business of brick kiln remained closed for more than six months. The view taken by the Sales Tax Commissioner is that the business remained closed during the period from September 26, 1983 to March 21, 1984 and from June 15, 1985 to January 15, 1986. Relying on the pathai charts produced by the assessee, the Tribunal concluded that during the period from December 7, 1983 to December 14, 1983 and from February 26, 1984 to March 14, 1984 and again from March 18, 1984 to March 27, 1984 pathai operation continued and that being part of the manufacturing process it could not be said that brick kiln business was closed for more than six months. In Advance Bricks Company v. Assessing Authority, Rohtak [1987] 67 STC 233; 1988 UPTC 126, the Supreme Court held as follows : ". . . . . . For brick-making, cleaned clay and sand mixed in desired proportion are put into sized frames and after the extra substance is removed, the raw brick is taken out of the frame and is laid on the filed to dry up and become hard. It it is intended to make hard bricks, the same are stacked into a kiln and adequately heated up by fire. There are various methods of burning the bricks. If not burnt, the sun-dried bricks are not hard enough to take good load. Sun-dried bricks are thus an intermediate stage of bricks as understood in common parlance and are goods in the ordinary sense of the term being a commercial commodity. ";