BALIA, J. - (1.) SHORT issue has been raised In connection with the proper meaning to be assigned to the expression `the other manufacturers in the State in the relevant industry during the accounting year 1984-85' which find place in the Notification issued by the State of Rajasthan in exercise of powers conferred by Sec. 8 (5) of the Central Sales Tax Act, 1956 (Annex. 1) No. F. 4 (72) FDGr. IV/81-18 dt. 6. 5. 1986.
(2.) THE question has arisen in the circumstances that the petitioner is a Public Limited Co. , it has established an industrial unit in State of Rajasthan for manufacturing white cement known as Birla White at Post Office Rajshree Nagar, Via Pipar Road, District Jodhpur. Through aforesaid Notification a partial exemption was offered to the dealers having their place of business and who are manufacturing goods in the State of Rajasthan. Such manufacturer could claim partial exemption from the tax payable in respect of the increased sales of such goods manufactured by him in the course of inter-State trade or commerce. The concession is by way of reduction in the rate of tax @ 50% of the tax so payable on increased sales vis a vis such sales in the base year 1984-85 upto 50% and at the rate of 75% of the tax so payable on increased sales made over and above the aforesaid 50%, in the manner and subject to the conditions as detailed in the Notification. The Notification related the eligible increased sale in respect of which partial exemption could be claimed with the percentage of sales during the accounting year 84-85 (hereinafter called the base year) by a dealer. Envisa- ging the contingency that the dealer, who is manufacturing the goods, may or may not be in existence in 84-85, the base year, in relation to which the increase in sales in the course of inter-State trade or commerce to the extent envisaged is to be computed, made the specific provision in the Notification. The Notification in question reads: S. O. 23.- In exercise of the powers conferred by S. 8 (5), CST Act, 1956, the State Govt. (2) in supersession of the FD Notfn. No. F4 (72)FDGr/iv/81-36 dated 3. 12. 1985 [s. No. 584], hereby directs that, with immediate effect, any dealer, having his place of business and manufacturing goods in the State of Rajasthan, may claim partial exemption from the tax payable in respect of the sales by him of such goods in the course of inter-State trade or commerce by way of reduction at the rate of 50% of the tax so payable on increased sales upto 50% and at the rate of 75% of the tax so payable on increased sales made over and above the aforesaid 50%, in the manner and subject to the conditions as follows:- (1) Such reduction of tax shall be allowed to a dealer only after and in respect of the increase which is effected in the percentage of the quantum of goods sold in the course of inter- State trade or commerce out of the total quantum of goods sold within the State and in the course of inter-State trade or commerce and despatched to Head Office, Branch Office, Depot or Agent outside the State for sale outside the State, during any accounting year as against such percentage during the accounting year 1984-85; (2) In the case of a dealer who commenced the manufacture of goods in the State of Rajasthan on or after 1. 1. 1985, the average of the aforesaid percentages in respect of the other manufacturers in the State in the relevant industry during the accounting year 1984-85, calculated and determined by the assessing authority with the approval of the Commissioner, shall be deemed to be the percentage in respect of such dealer for the accounting year 1984-85; (3) This increase effected in the percentage, as referred to in clause (1) above in respect of the sales in the course of inter-State trade or commerce, to be considered shall be limited to the extent of the decrease in the percentage in respect of the despatch of goods to Head Office, Branch Office, Deport or Agent outside the State for sale outside the State, during the relevant accounting year as against such percentage during the accounting year 1984-85. It is not in dispute in this petition that the petitioner is entitled to partial exemption under the aforesaid Notification on its inter-State trade or commerce. It is also not in dispute that the petitioner has commenced the manufacture of white cement in the State of Rajasthan after 1. 1. 85, therefore, the increased sales in respect of which partial exemption could be claimed by him could not be related to its own sales in the course of inter- State trade or commerce and despatches to Head Office, Branch Office, Depot or Agent outside the State for sale outside the State during base year (accounting year 1984-85 ). Therefore, the increased sales in the course of inter-State trade or commerce of such goods as are manufactured by it within the State of Rajasthan has to be related to the percentage of quantum of goods sold in the inter-State trade or commerce out of the total quantum of goods sold within the State in respect of `other manufacturers in the State in the relevant industry during the accounting year 1984-85'. The assessee's contention in this regard is that the relevant industry in the context can only mean primarily the industry engaged in manufacture of such goods, as are manufactured by the claimant, which is situated within Rajasthan. In this regard vis a vis the petitioner the only industry engaged in manufacture of white cement could be considered as the other manufacturer in relevant industry. The only manufacturer which was in existence in Rajasthan prior to 1. 1. 85 engaged in the manufacture of white cement, the goods manufactured by the petitioner company, was J. K. White Cement at Gotan, and therefore, for the purpose of finding relevant percentage of quantum of goods sold in the course of inter-State trade or commerce out of the total quantum of goods sold within the State and in the course of inter-State trade and commerce and despatches to the Head Office, Branch Office, Depot or Agent outside the State for sale outside the State, during the base year the data of other manufacturer in relevant industry, namely J. K. Industries, engaged in the manufacture of white cement as J. K. White Cement Works at Gotan in the State of Rajasthan during the accounting year 1984-85, could be taken into consideration. The figures accepted in the case of J. K. White Cement Works are not to be doubted inasmuch as both certificates, one furnished by the J. K. White Cement showing the computation made in its case of the sales during the base year for claiming the benefit of the aforesaid Notification, as well as the figures admitted to be accepted by the department in the case of J. K. White Cement Works have been placed on record as Annex. 2 and Annex. R/5 by the petitioner and respondents respectively. The respondents case is that the term `relevant industry' cannot be confined to the industry of manufacturing `white cement' within the State of Rajasthan but takes within its compass all the industries within the State of Rajasthan manufacturing cement of whatever nature and creed and the computation of base year's figure of the total sales; intra-State as well as inter- State: and the despatches outside the State for sale outside State for 84-85 were computed on that basis and the advantage on that basis has been extended to the petitioner.
(3.) IN that connection, the petitioner has submitted that even in that regard the percentage figures of base year for cement industry as a whole has been applied to the petitioner. It has been submitted that the case of M/s. Sri Ram Fertilizers and Chemicals, Kota, a manufacturer of grey portland cement, by the department itself had determined the base year's percentage figures. The base year date to be applied to the petitioner as conveyed to the petitioner vide Annex. 5 dated 25. 4. 98 are not in consonance with that either. A comparative chart of the base year figures adopted for the purpose of carrying out computation of the partial exemption benefit under the aforesaid Notification has been placed on record as Annex. `a' attached to Annex. 6 by the petitioner, which is as under: INDIAN RAYON & INDUSTRIES LTD. WHITE CEMENT DIVISION Comparative Chart Showing Determination Under Notification Dated 6. 5. 86 Sl. No. Type of Sales As determined by Assistant Commissioner Spl. Circle-I, Jodhpur vide his letter dt. 25. 4. 98 As per order dt. 4. 12. 87 in the case of M/s. Shri Ram Fert. & Chem. Kota Actual despatches of JKWC Gotan 1. Sales within State 22. 22% 17% 02. 92% 2. INter-State Sales 26. 13% 18% 24. 60% 3 Sales Outside State/branch Transfer 52. 65% 65% 72. 48% It is true that broadly speaking the expression `cement' is a generic term which includes within its ambit all types of cement of whatever nature which have the adhesive value and are used in construction. However, the Notification dt. 6. 5. 1986 is not concerned with the cement as a commodity for special treatment for partial exemption but it deals with all `goods manufactured by the dealers'. The term `goods manufactured' does not refer to a genus which embraces a variety of species within it, but refers to every species of goods which are specifically distinguishable from other specie of goods either for the purpose of manufacture or for the purpose of sales, the subject with which the Notification deals. The term `goods' has been used in generic sense which has classified the word `manufactured by the dealer'. Therefore, for determination of increased sales & decreased despatches (otherwise than as sales), while considering the inter-state sales of goods manufactured with reference to which the exemption is claimed, in case the manufacturer himself was not in existence or not manufacturing goods until 1st of Jan. , 1985, one has to look at the other manufacturers in the relevant industry manufacturing the same specie of goods as manufactured by the claimant dealer within the State of Rajasthan. If the inter-State sales of white cement as the specie of goods manufactured by the dealer is to be considered for extending partial exemption and for which other manufacturer in the relevant industry is to be looked around within the State of Rajasthan for the purpose of finding base year statistics then such other manufacturer in the relevant industry can ordinarily be only an industry engaged in manufacture of specific goods viz. white cement. Other manufacturer of such goods cannot be identified with the generic genus but has to be identified with goods in specie identifiable with the specie of goods manufactured by the claimant for the purpose of finding the relevant industry engaged in the manufacture of the goods as are manufactured by the dealer. The expression `relevant industry' related to which the other manufacturers in the State are referred to, in the context of the entire Notification, can only relate to the manufacture of such goods as are manufactured by the dealer in question in the State of Rajasthan. The entire expression cannot be read outside the context of `such goods' referred to in the preamble of the Notification which provides the subject of the Notification S. O. 23. "s. O. 23.-In exercise of the powers conferred by S. 8 (5), CST Act, 1956, the State Govt. in supersession of the FD Notfn. No. F. 4 (72)FDGr/iv/81-36 dated 3. 12. 1985 hereby directs that, with immediate effect, any dealer, having his place of business and manufacturing goods in the State of Rajasthan, may claim partial exemption from the tax payable in respect of the sales by him of such goods in the course of inter-State trade or commerce by way of reduction at the rate of 50% of the tax so payable on increased sales made over and above the aforesaid 50%, in the manner and subject to the conditions as follows. ;