High Court Kerala High Court

M/S. Invincible Chemicals Pvt. … vs General Manager on 19 May, 2010

Kerala High Court
M/S. Invincible Chemicals Pvt. … vs General Manager on 19 May, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 30015 of 2002(W)


1. M/S. INVINCIBLE CHEMICALS PVT. LTD.,
                      ...  Petitioner

                        Vs



1. GENERAL MANAGER, DISTRICT INDUSTRIES
                       ...       Respondent

2. DIRECTOR OF INDUSTRIES AND COMMERCE,

3. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.E.K.NANDAKUMAR

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :19/05/2010

 O R D E R
                    P.R. RAMACHANDRA MENON, J.
              ..............................................................................
                           O.P.No. 30015 OF 2002
               .........................................................................
                         Dated this the 19th May , 2010



                                    J U D G M E N T

Sustainability of Ext.P2 order passed by the first

respondent and Ext.P5 order passed by the appellate

authority/second respondent rejecting the claim for exemption

raised by the petitioner forms the subject matter of challenge in

this Writ Petition.

2. The petitioner is a Small Scale Industrial Unit

engaged in the manufacture of Carbonated Silicate and

production was started on 16.08.1996. The case of the petitioner

is that petitioner is entitled to get exemption from payment of

tax by virtue of stipulation in SRO. 1729 /93. On filing an

application for exemption , the matter was considered by the

first respondent and holding that there was no manufacturing

process as defined in Ext.P1 notification , the claim was rejected,

which was subjected to challenge by filing Ext. P3 before the

O.P.No. 30015 OF 2002

2

second respondent. The reason for rejection as evident from Ext.

P2 is that Carbonated Silicate and Sodium Silicate are one and

the same products, viz, Soap Grade Sodium Silicate, since it is

stipulated in Ext. P1 notification under Clause (d) of exemption

from the definition of ‘Manufacture’ that ‘Converting Sodium

silicate into liquid silicate’ is not a process involving manufacture,

the application was rejected .

3. During the pendency of the proceedings before the

second respondent/appellate authority, the petitioner had

submitted samples of both the products to be examined by the

expert bodies i.e, Regional Research Laboratory,

Thiruvananthapuram of the CSIR , which is a Govt. of India

Institution. As per Ext.P4 it was certified that samples of

Sodium Silicate and Carbonated Silicate are chemically different

products. The said report was produced by the petitioner, which

however is stated as not considered by the second

respondent/appellate authority. Instead, the said auhority

sought to obtain opinion from elsewhere, based on which a

decision was taken that both are the same products and

O.P.No. 30015 OF 2002

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accordingly Ext.P3 appeal was rejected confirming Ext.P2, as

per Ext.P5, which is under challenge.

4. The learned Counsel for the petitioner submitted that

the finding and reasoning given by the appellate authority are

not corret, due to many a reason. It is stated that Ext.P5 order

was passed without considering Ext.P4 report submitted by the

Regional Research Laboratory owned by the Central

Government, while placing undue reliance on the alleged report

submitted by the Head of Department of Chemical Engineering,

Govt. Engineering College, Thrissur. It is also pointed out that

neither a copy of the said report was given to the petitioner nor

was he given an opportunity of hearing to question the contents

and credibility of the said report.

5. The learned Government Pleader appearing for the

respondents conceded that there is no reference in Ext. P5 as to

the veracity or credibility of Ext. P4 report submitted by the

Regional Research Laboratory or as to why it was not

acceptable . That apart, it is also not discernible from Ext. P5

whether a copy of the alleged expert report obtained from the

O.P.No. 30015 OF 2002

4

Department of Chemical Engineering was served to the petitioner

giving opportunity of hearing so as to sustain the case. What is

stated in Ext. P5 is only that the State Level Committee held on

29.07.2002 discussed the issue in detail and accepted the expert

opinion of the Professor and Head of the Department of Chemical

Engineering, Govt. Engineering College, Thrissur and resolved to

reject the appeal, as ‘Soap Grade Sodium Silicate’ is in the

‘negative list’ and carbonated silicate is nothing but liquid sodium

silicate.

6. It is submitted by the learned Government Pleader that

both the products ie., carbonated silicate as well as sodium

silicate are used for the very same purpose and since utility is

same both are considered as the same product . This Court

finds it very difficult to accept the proposition. Similarly, the

submission that both, ‘carbonated silicate’ and ‘sodium silicate’

contain very same components also does not appear to be

palatable to this court. This is for the reason that the very same

components may give rise to different products. For example,

two atoms of Oxygen and one atom of Sulphur will give rise to

O.P.No. 30015 OF 2002

5

one molecule of Sulphur Dioxide (SO2) while one atom of

Sulphur and three atoms of Oxygen will give rise to one molecule

of Sulphur Trioxide (SO3), though the components remain to be

same in both the products.

7. As borne by Ext.P1 notification, the term ‘Manufacture’

is defined as follows:

“Manufacture’ shall mean the use of raw

materials and production of goods commercially

different from the raw materials used but shall

not include mere packing of goods, polishing,

cleaning, grading, drying, blending or mixing

different varieties of the same goods, sawing,

garbling, processing one form of goods into

another form of the same goods by mixing with

chemicals or gas, fumigation or any other

processing applied for preserving the goods in

good condition or for easy transportation. The

process of producing desiccated coconut out of

coconut, (chemical treatment of rubber wood

and production of dressed or tanned hides out

of raw hides) shall be deemed to be

‘manufacture’ for the purpose of this

O.P.No. 30015 OF 2002

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notification.

8. The circumstance under which a process will not be

deemed as manufacturing process is also specified in the very

same notification , which is extracted below:

.”Thefollowing proceesing shall not be deemed

to be ‘manufacture’ for the purpose of this

notification.

(a) Crushing copra and producing coconut oil

and coconut oil cake.

(b) Converting timber logs into timber sizes

(c) Crushing rubble into small metal pieces.

(d) Converting sodium silicate into liquid

silicate

(e) Tyre-retreading.

(f) Cutting granite or marble slabs into smaller

pieces and/or polishing them.

(g) Such other processes as may be notified by

Government in this behalf.

[(h) Conversion of rubber latex into centrifugal

latex, raw rubber sheet, ammoniated latex,

crepe rubber, crumb rubber or any other item

falling under entry 110 of the First Schedule to

the Kerala General Sales Tax Act, 1963 or

O.P.No. 30015 OF 2002

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treating the raw rubber in any form with

chemicals to form a compound of rubber by

whatever name called. ]

9. Clause (d) of the term ‘Manufacture’ provides for

exclusion of a specified instance from the purview of the

manufacture such as ‘converting Sodium Silicate into liquid

silicate will not be deemed as manufcturing process. But here,

the process involved is manufcature of ‘Carbonated silicate.

Prima facie, it cannot be said that it is a simple convervison of

sodium silicate into liquid silicate. This is for the reason that

the process of ‘Manufacture ‘ of carbonated silicate is clearly

explained by the petitioner in paragraph 3 of the Original petition

which is as follows:

“……..Carbonated silicate is manufactured by

dissolving soluble glass in water under steam

pressure and temperature. Thereafter certain

percentage of soda ash and sodium hypo

chlorite is also added to make the product

carbonated silicate. Mere addition of these raw

O.P.No. 30015 OF 2002

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materials does not result in the end product of

carbonated silicate. These raw materials are to

be heated at 165 degree centigrade by

introducing steam produced by the boiler and

stirred. Ext. P1 contemplates that conversion of

sodium silicate into liquid silicate is not a

manufacturing process.”

10. The process of ‘manufacture’ as above is not disputed

by the respondents in the counter affidavit. On the other hand,

the only assertion in the counter affidavit is that the

‘carbonated silicate’ produced by the petitioner is mainly used

presumably in the soap industry, in place of ‘liquid sodium

silicate’, which by itself cannot be a reason to hold that the

products are one and the same, especially when it is certified

otherwise as borne by Ext. P4. Anyhow, this Court does not

propose to go into the technical aspects or correctness as to the

findings or reasoning given by the experts, but for expressing

the doubts as to the correctness of the stand revealed from the

proceedings and the pleadings on record. When there is a clear

O.P.No. 30015 OF 2002

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report given by the Regional Research Laboratory owned by the

Council of Scientific and Industrial Research, an Institution of

the Central Govt. of India as borne by Ext. P4, certifying that

‘Carbonated Silicate’ as well as the ‘Sodium Silicate’ are two

different products, how both the items could be considered as

the same product is not discernible from the materials on record.

Since there is no reference with regard to Ext.P4 report in Ext.

P5, what prompted the said authority to obtain another opinion

from the Department of Chemical Engineering, Govt.

Engineering College, Thrissur is quite obscure. That apart,

since there is a contention raised from the part the petitioner

that copy of the expert opinion stated as received by the State

Level Committee is not supplied to the petitioner and the

petitioner was not given any opportunity of hearing before

passing Ext. P5, this Court finds that the order cannot stand the

test of law. Accordingly, Ext.P5 is set aside. This Court finds

that the matter requires to be considered by the second

respondent in the light of the observations made above and

also with specific reference to Ext.P4. The second respondent is

O.P.No. 30015 OF 2002

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at liberty to obtain expert opinion from still higher authority, if

so necessitated and the matter shall be finalised in accordance

with law, giving clear and effective opportunity of hearing to the

petitioner. Final orders shall be passed as expeditiously as

possible, at any rate, within a period of three months from the

date of receipt of a copy of the judgment

The Writ Petition is allowed to the above extent. No cost.

P.R. RAMACHANDRA MENON,
JUDGE.

lk

O.P.No. 30015 OF 2002

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P.R. RAMACHANDRA MENON, J.

……………………………………………

O.P. No. 30015 of 2002

……………………………………………
Dated this the 19th May, 2010

J U D G M E N T