J.Gupta (Judicial Member) - (1.) BY the instant application Eastern Gases Ltd., a limited company, and one of its directors challenge the validity of the orders of the respondent No. 1 whereby the applicant -company's (hereinafter referred to as "the company") prayer for amendment of its registration certificate was rejected. The company is registered under the West Bengal Sales Tax Act, 1994 (in short "the 1994 Act") as a re -seller. It subsequently installed the plant at Durgapur for processing of raw liquid petroleum gas (LPG) at various stages and ultimately bottling the same in cylinders. It applied to the Commercial Tax Officer (respondent No. 1) for amendment of the registration certificate (R.C.) showing it (the company) as a manufacturer. According to the company, the processing of LPG in its plant includes various stages of refining of the gas, blending the same with mercaptan as per specific requirement under the Indian Explosives Act and the ultimate bottling of the refined LPG in cylinders for public consumption. In the opinion of the company, such bottling of LPG thus constitutes a manufacturing process. It alleges that respondent No. 1 without appreciating that the bottling process involves a manufacturing process wrongly rejected its (the company's) prayer for amendment of the R.C. The company then moved the two successive revisional forums (respondent Nos. 2 and 3) against such order of rejection of its prayer. But the revising authorities also rejected the company's prayer. As the last resort the company moved another revision application before the Additional Commissioner of Commercial Taxes, Durgapur (respondent No. 4) ; but the said petition also met the same fate. Hence, the company has filed the instant application before this Tribunal challenging the orders of respondent Nos. 1, 2, 3 and 4.
(2.) ACCORDING to the respondents, the process of bottling, as undertaken by the bottling plants like that of the company, is pure and simple filling up of gas cylinders for public consumption and does not conform to a manufacturing process. Hence, they defend the impugned orders. The issue before us is whether the process of bottling LPG into cylinders constitutes a manufacturing process. The expression "manufacture" has been defined in Sub -section (17) of Section 2 of the 1994 Act. The sub -section reads thus : "(17) 'Manufacture', with all its grammatical variations and cognate expressions, means producing, making or extracting any goods, and includes blending of tea, but does not include a works contract or such manufactures or manufacturing processes as may be prescribed."
(3.) BE it mentioned that no prescription has so far been made under this sub -section. The scope of the expression "manufacture" in the context of the sales tax statutes came up for consideration of the Supreme Court in a large number of cases. It is now the settled position that "manufacture" implies a change but every change is not manufacturing and that a process amounts to manufacture if in its course a new and different article must emerges having a distinct name, character and use [the decision reported in Collector of Central Excise, Madras v. Kutty Flush Doors & Furniture Co. (P) Ltd. [1988] 70 STC 314 (SC) may be referred to]. In order to substantiate its claim that the bottling process is in fact a manufacturing process, the company in paragraph 6 of its application has enumerated a series of processes which it claims to be the essential parts of the bottling process. Though most of these processes belong to the stages anterior to the one at which the processing at the company's plant commences, sub -paras D, E, F and G of this paragraph, however, speak of certain processes which the company claim to undertake as the essential part of bottling operation. According to Mr. J.K. Goswami, learned State Representative, such claim of company is an innovative stance not urged either before the respondent No. 1 or any of the first two revising authorities. Mr. S.N. Bose, learned Senior Counsel for the applicant, has submitted that though before respondent No. 1 or the first two revising authorities the details of the actual bottling processes, amounting to manufacture, have not been highlighted but before the third revisional forum, viz., the Additional Commissioner of Commercial Taxes, as well as in the memorandum of revision as filed before him, all these aspects have been elaborated. According to Mr. Goswami, these pleas are untenable firstly because such new pleas set up before an incompetent forum are of no consequence and secondly because none of these pleas can stand to scrutiny. We fully endorse the view of Mr. Goswami because the 1994 Act does not conceive of a third revisional forum. Even Mr. Bose is fair enough to concede that Rule 244(2) which prescribes the rules for revision of orders contemplates only two tiers of revisional forums. We find that against an order by a Commercial Tax Officer or an Inspector the first revision application lies before the Assistant Commissioner (vide Clause (a) to Sub -rule (2) of Rule 244), whereas against such revisional order passed by the Assistant Commissioner the second revisional application lies before the Deputy Commissioner [vide Clause (c) to the Sub -Rule]. Again, when the original order to be challenged in a revision is by the Assistant Commissioner, the first revision application lies before the Deputy Commissioner [vide Clause (b) of the sub -rule], whereas against the first revising order by the Deputy Commissioner the second revision lies before the Additional Commissioner [vide Clause (d) of the sub -rule]. In the instant case before us, the order rejecting the prayer for amendment of the R.C. was passed by the Commercial Tax Officer. The Assistant Commissioner was the appropriate forum for preferring first revision application and against the order of first revisional authority the second revision application would lie before the Deputy Commissioner whose revisional order in such circumstances will exhaust the revisional forums under the 1994 Act, There is no scope for a third revisional forum. Therefore, the Additional Commissioner of Commercial Taxes, Durgapur Zone, does not have any statutory competence to entertain a revisional application against the order of second revisional authority, viz., the Deputy Commissioner. Accordingly, the submissions made before such third revisional forum are of no consequence and the order passed by such incompetent forum is non -est. According to Mr. Goswami, the company by raising such innovative "factual issues" before such incompetent forum, without agitating such issues before the three competent authorities below, namely, the Commercial Tax Officer, the Assistant Commissioner and the Deputy Commissioner, cannot be permitted to canvass the said issues before this Tribunal. He contends that this is a ploy, just by touching an incompetent forum to legitimize some factual issues which were not, however, raised up to the level of the second revisional authority. We find much substance in the contention of Mr. Goswami. What surpasses our comprehension is how a senior official of the rank of Additional Commissioner could act as third revisional authority which is inconceivable under the 1994 Act, and that too allowing raising of factual issues not at all canvassed before the competent forums, namely, the Commercial Tax Officer, the Assistant Commissioner and the Deputy Commissioner. Thus such factual issues having made their maiden appearance (because the third revisional forum is an incompetent one) before this Tribunal, we could have refused to probe into these new issues ; but Mr. Goswami himself has put in much labour in arguing that these new issues, placed under appropriate scrutiny, would expose absence of any intrinsic merit. Hence, we proceed to examine these issues.;