- (1.) THE following two questions have been raised for decision by this Court under Section 15 of the Rajasthan Sales Tax Act, - " (1) Whether under the fact and circumstances of the case the dealer comes within the definition of manufacturer by doing the process of cutting and cleaning of Falspar and Quartz; (2) Whether under the fact and circumstances of the case the process of dressing and cutting of Falspar and Quartz sold by the non-petitioner amounts to the process of manufacturer as defined under Section 2 (k) of the Rajasthan Sales Tax Act. "
(2.) THE brief facts of the case are that the assessment for the year 1970-71, 1971-72 of the assessee was made on 11. 04. 1974 in which the declaration forms/s. T. 17 in respect of sale of Falspar and Quartz were rejected on the ground that excavation is not a process of manufacture, hence, the minerals sold are not manufactured product and could not be sold against form S. T. P. for resale. Against this order an appeal was preferred before the Deputy Commissioner, Appeals, Commercial Taxes, Jaipur where it was submitted that the falspar and quartz excavated from the mines cleaned for removing the impurities, dressed and cut into small pieces for facilitating the transportation and, therefore, it is a process of manufacture. A certificate of the Mining Engineer was also submitted. The Deputy Commissioner, Appeals came to the conclusion that the new article is not having a distinct name, character or use and, therefore, it is not a process of manufacture. It was held that the cutting was done to facilitate the transportation and for the reason also it could not be considered as a process of manufacture. The appeal was rejected. Against this order the matter was carried to the Board of Revenue in revision and the Board of Revenue after taking into consideration the definition of manufacture as given under Sec. 2 (K) of the Rajasthan Sales Tax Act came to the conclusion that the definition is very liberal which includes any process even of collecting, and extracting and the revision was accordingly allowed. Against this order of the learned single Judge of the Board of Revenue the matter was carried to the Division Bench of the Board of Revenue by way of special appeal It was held by the Division Bench of Board of Revenue that process of cutting and dressing of Falspar and Quartz amounts to a process of manufacture and accordingly, the benefit of the Notification dated 1-4-1961 could be availed by the assessee. The learned counsel for the Revenue has submitted that no process of manufacture is involved inasmuch as the mineral excavated was only dressed to remove the impurity and cutting was also not of the nature which could make the commodity as different one than was excavated. It is an established principle of law that for the purpose of determining as to whether a particular process amounts to manufacture or not there should be a change physical or chemical in nature and the commodity must be different than what it was before any process was carried on with it. From the perusal of various records which have been produced it would be evident that the assessing authority has written only one line that the process of excavation is not a process of manufacture. If it is merely a matter of excavation of mineral from the mine than it would not have been considered as a process or manufacture but what subsequent processes have been carried and in what manner so that it could be said that the commodity has undergone a change physical or chemical in character and is understood distinctly as commodity produced from the original commodity, the authorities could not have gone on that point without having any evidence before them. It would have been proper for the Board of Revenue to either remand the matter to the assessing authority for recording the evidence with regards to the nature of process carried on or the Board of Revenue could have asked the assessee to adduce the evidence as to the nature of the process carried on. Nothing of this sort has been done in the present matter.
(3.) IN these circumstances, the two questions which were raised could not be answered. The matter is sent back to the Tribunal which may now ask the assessee to produce the evidence with regard to the nature of process carried on and shall give an opportunity to the Department as well and then decide the issue in accordance with law. The learned counsel for the Revenue has also relied upon the decisions of 21 STC 17, 35 STC 65, 46 STC 63 and 50 STC 76. It would not be proper for this Court to adjudicate on this question as to whether the process alleged to have been carried on in this case amount to manufacture or not unless a finding is recorded as to actual process and the manner in which the said processes were carried on is recorded by the taxing authorities. The revision petition is accordingly, partly allowed. No orders as to costs. . ;