Vineet Kothari, J. - (1.) This revision petition has been filed against the order dated 16.9.2003 whereby the Tax Board has held in favour of the respondent -assessee manufacturing plaster of Paris that he was entitled to the benefit of Incentive Scheme and State Level Committee was not justified in refusing the same.
(2.) Learned Counsel for the respondent -assessee submits that this controversy is covered by the various decisions of this Court including one in case of CTO, Rajsamand v/s. Surana Minerals Pvt. Ltd. and Anr. This Court in the aforesaid judgment held as under: It may be recalled that this distinction has also been noticed by the Supreme Court in Commissioner of Sales Tax, U.P. v/s. Lal Kunwa Stone Cursher (P) Ltd., (2000) 118 STC 287. The Court was considering the question of manufacturing process where taxable item stated in the schedule of rates was stone. The Court considering the decision giving by the Karnataka Sales Tax Tribunal in Reliable Rocks Builders and Suppliers v/s. State of Karnataka, (1982) 42 STC 110 wherein the activity of converting stone into marketable commodity was held to be manufacture, was not over -ruled, but was distinguished on the basis of entry in the concerned schedule of rates. The Court explained referring to Karnataka decision that it turned on the concept of consumption of goods for the purposes of bringing into existence new goods and said: In that case the Court was not concerned with an entry of the nature with which we are concerned in the present case. In the case before the Supreme Court where goods mentioned in the schedule of rates was stone. In the context of said entry the Court said that stone, as such, and other articles of stones are all similar in nature though by size they may be different. The entry with which the Supreme Court was concerned was 'stone and any article made of stone'. Obviously, if stone as stone has attracted the tax in the first point, subsequent sale of article made of that stone would fall in the same category of the schedule. So far as Lal kunwa's case was concerned so also the case of Reliable Rocks Builders and Suppliers turned on the concerned of functional utility of the goods derived by building process as was held by this Court in Prakash Udhyog referred to above. In this view of the matter, I am of the opinion that the DLSC was not right in rejecting the application of respondent without examining the issue on aforesaid principles in respect of both the activities. The Tax Board, therefore, was right in remanding the case to the DLSC for considering the case of the respondent in respect of its activity of making powder out of dolomite and marble. The answer will depend on the finding reached on aforesaid principles. I refrain from making any comments on merits. This revision Petition is, accordingly, dismissed with no order as to costs.
(3.) Learned Counsel for the revenue though does not dispute the position of the judgment of this Court, however, submits that against the previous judgment rendered by this Court, SLP has been granted by the Supreme Court and the matter is pending before the Apex Court. However, there is no stay of High decision from the Hon'ble Supreme Court.;