BALIA, J. - (1.) WE have heard the learned counsel for the parties.
(2.) THIS appeal is directed against the judgment of the learned Single Judge dated 10. 4. 2003, rejecting the writ petition filed by the petitioner on the ground that he had an alternative remedy of filing appeal before the Deputy Commissioner, Commercial Taxes against the assessment order. The appellant has urged before the learned Single Judge that in view of the fact that the superior Tribunal viz. , the Rajasthan Tax Board has already decided the issue against the assessee in another case, the pursuit of the alternative remedy could have been a futile exercise and the matter would again come to the High Court by going through the appeal in a mechanical manner, therefore, the alternative remedy, in the present case, is not an efficacious remedy. In this connection, he drew attention to the decision of the Rajasthan Tax Board rendered in M/s Udaipur Dugdh Utpadak Sahakari Sangh Ltd. , Udaipur vs. Commercial Taxes Officer, Special Circle, Udaipur (1 ). The case of the petitioner is that he has purchased skimmed milk as a material for processing the milk to different fat contents for sale and manufacture of milk products like butter milk, butter and Ghee as stated in his certificate of registration. He has purchased the skimmed milk by giving the declaration under Form ST-17 on the basis of the material entered into his certificate of registration as a raw material as well as for processing the milk for sale by paying the tax at concessional rate of 4%. As per the original assessment order dated 31. 10. 1999 for the assessment year in question, the Assessing Officer accepted his claim and did not levy any additional tax on such purchase. However, relying on the decision of the Tax Board referred to above, reassessment proceedings were initiated by issuing notice on 24. 10. 2002 under Sec. 30 of the Rajasthan Sales Tax Act, 1994 (hereinafter referred to as the Act, 1994) and by order dated 25. 2. 2003, following the decision in Udaipur Dugdh Utpadak Sahakari Sangh Ltd. , Udaipur vs. Commercial Taxes Officer, Special Circle, Udaipur, (supra), the Commercial Tax Officer, Jodhpur has held that the process of mixing the skimmed milk powder with milk cannot be considered as a manufacture as it does not result in bringing into existence any new commercially different product and therefore, he is not entitled to purchase the skimmed milk as raw material at a concessional rate on the basis by furnishing Form No. ST-17. In the facts and circumstances of the case, we are of the opinion that the existence of alternative remedy ought not to come in the way of entertaining the plea of the petitioner on merit as demonstrably the very foundation of initiating of reassessment and consequent reassessment has been founded solely on that premise. In ordinary course of proceedings the authorities below Tax Board are expected to follow the same decision as a matter of judicial propriety. In view of the decision of the Tax Board, the highest tribunal under the Sales Tax statute, the contention of the petitioner about manufacture that it would bring into existence a new commercially different commodity would have been a futile exercise particularly, keeping in view that the ultimate remedy of the petitioner was to come again to this Court against the order of the Board also. We are further informed that decision in Udaipur Dugdh Utpadak Sahakari Sangh is also pending consideration before this court raising the same issue. Moreover, in our opinion, on the basis of the statement made before us, it is apparent that the case needs only interpretation of the provisions of Sec. 10 of the Act, 1994 in the light of cognate provisions. Without going into other issues, the question needs to be decided by this Court to set at rest ambiguity, if any, in interpreting the provisions so that future multiple litigation on the issue can be curtailed.
(3.) WE, therefore, deem it just and proper to decide the appeal by considering the contentions on merits and not to rest our decision only on the availability of alternative remedy. The contention of the appellant-petitioner is that by applying the process of mixing skimmed milk with natural milk not only milk with different fat contents are brought into existence which are commercially different products than natural milk, he is also manufacturing other milk products like curd, butter milk, butter or Ghee, which in no sense could be said to be commercially same as milk in any sense of the term. It has also been urged that so far as availing purchase of skimmed milk at concessional rate of 4% by furnishing declaration in ST 17 form is concerned, even if bringing into existence of milk of different fat contents, does not amount to manufacture, under Sec. 10 (3) purchase goods for processing the goods for sale, otherwise than as raw material for manufacture, sales or purchase tax exceeding 4% cannot be levied. Therefore, neither there was ny material on the basis of which opinion could be formed about escapement of tax, when the assessee has purchased the goods in question by paying tax @ 4%, nor any assessment of tax could be made at rate exceeding 4% on purchase of skimmed milk by the assessee which has been used in processing the natural milk for sale. Even in respect of purchase skimmed milk, so long as skimmed milk has been used in relation to end products like curd, butter milk (Lassi), butter and Ghee, it has certainly been used as raw material in manufacture of such goods in state for sale. Hence to that extent, the skimmed milk ought to have been treated as raw material to be treated u/s. 10 (1) as such. On the other hand, the learned counsel for the Revenue had urged that bringing into existence milk of different fat contents does not bring into existence any different commercial commodity so as to treat skimmed milk as raw material. Milk of different fat contents commercially skill, is known and traded as milk nor for taxing purposes it is recognised a different commodity. Therefore, the contention of petitioner cannot be sustained. He also urged that concession u/s 10 cannot be availed only on preserving activity independent of manufacturing activity hence the other contention of the petitioner appellant also cannot be accepted. Lastly, he contended that skimmed milk is not used directly in manufacture of curd, Lassi, butter and Ghee the other milk products which brings into existence milk. For the manufacture of milk products, milk is the raw material, but not the skimmed milk. It loses its identity as raw material as soon as intermediary product milk is brought into existence for further processing. ;