JUDGMENT
Kania, J.
1. This is a reference of a case stated by the Sales Tax Tribunal under section 61(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as “the said Act”). The following questions have been referred to us for our determination in this reference :
“(a) Whether the Tribunal was correct in law in holding that the activity of the respondents in feeding the one day old chicks and rearing them to a desired maturity of consumable table birds under expert supervision in their poultry farm for realising better price, does not amount to ‘manufacture’ within the meaning of section 2(17) of the Bombay Sales Tax Act, 1959 ?
(b) Whether the Tribunal was correct in law in holding that the activity of the respondents in feeding the one day old chicks and rearing them with a view to obtain eggs, does not amount to ‘manufacture’ with the meaning of section 2(17) of the Bombay Sales Tax Act, 1959 ?”
2. The facts giving rise to the reference are as follows :
The respondents conduct a poultry farm. The activities of the respondents inter alia comprise buying one day old chicks and rearing them into broilers or layers and rearing hens with a view to obtain eggs and selling broilers or layers and eggs laid by the layers and collected from the hens. During the period from 1st April, 1971, to 31st December, 1971, the turnover of purchases of the respondents was Rs. 34,800 and the turnover of sales was Rs. 23,456.74. The Sales Tax Officer concerned held that the above activities of the respondents amounted to manufacture within the meaning of section 2(17) of the said Act. The Sales Tax Officer fixed the liability of the respondents on the footing that they were entitled to the lower exemption of limit of Rs. 10,000 as provided in sub-section (4) of section 3 of the said Act. The Sales Tax Officer assessed the total tax payable by the respondents at Rs. 631.26 and levied a penalty of Rs. 94.68. The appeal preferred by the respondents to the Assistant Commissioner of Sales Tax was dismissed on the ground that the activities of the respondents amounted to manufacture within the meaning of section 2(170 of the said Act. The respondents filed a second appeal before the Sales Tax Tribunal. The Tribunal following its earlier decision in the case of Messrs. Rocha Poultry Farm (Appeal No. 47 of 1971 decided on 18th April, 1973) held that the activity of the respondents of rearing one day old chicks into broilers or layers does not amount to manufacture within the meaning of section 2(17) of the said Act. The Tribunal also held that the activity of rearing hens with a view to obtain eggs from the hence and collection of these eggs laid by the hens also does not amount to manufacture within the meaning of section 2(17) of the said Act. It is the correctness of this decision which is sought to be tested before us by way of questions referred to hereinabove.
3. The term “manufacture” is defined in sub-section (17) of section 2 of the said Act. The said sub-section states :
“‘manufacture’, with all its grammatical variations and cognate expressions, means producing, making, extracting, altering, ornamenting, finishing or otherwise processing, treating, or adapting any goods; but does not include such manufactures or manufacturing processes as may be prescribed.”
We are not concerned with any manufacture or manufacturing process which has been specifically excluded, because there was no argument to the effect that the activities carried on by the respondents, as set out above, were excluded specifically from the scope of the definition contained in section 2(17). At the relevant time, section 3 of the said Act inter alia provided certain limits of turnover below which the dealer concerned was not liable to tax under the said Act. In respect of a manufacturer, this limit was fixed at Rs. 10,000 and in the case of a dealer who was not a manufacturer or importer, the limits was fixed at Rs. 30,000. The submission of Mr. Thakor, learned counsel for the Commissioner, is that a broiler is a distinct commercial commodity which is different from one or two days old chicks. One or two days old chicks could not be regarded as edible whereas as broiler can be regarded as edible and is generally considered to be a table bird. It was urged by him that the definition of the term “manufacture” in sub-section (17) of section 2 showed that the definition given was an enlarged definition so as to include within its scope many activities which would not, in common parlance or ordinary language, be regarded as manufacture. In respect of the first question, it was contended by Mr. Thakor that it feeding and rearing one day old chicks into broilers, it could be said that the respondents had conducted the activity of altering or treating or adapting the chicks into broilers. The facts found by the Tribunal showed that the respondents conducted a regular poultry farm and according to Mr. Thakor, this would imply that all care was taken in the poultry farm to keep the chicks in goods health and to feed them properly, so that they would turn into broilers. Mr. Thakor drew our attention to some meanings given to the term “adapt” in some dictionaries. In this connection, we may point out that the definition of the word “adapt” in Chambers Twentieth Century Dictionary (Sixth Reprint 1981, page 13) and the Concise Oxford Dictionary (reprinted in India with corrections 1972, page 15) show that the said word means “to make a thing suitable for a purpose” or “to modify or to alter it for a purpose”. One can be said to alter an article when he does anything to change character of that article. By the phrase “treating an article” is clearly meant applying something in the nature of a “process” to the article. The only activity which is found by the Tribunal attributable to the respondents in rearing chicks into broilers is that they have taken proper care in looking after the chicks, feeding them and keeping them in sanitary conditions. There is no finding of the Tribunal that any special diet was given to enable the chicks to grow into broilers or that anything other was done to the chicks, except such things as would normally be included in rearing. In our view, merely rearing a chicks with care until it attains a particular age at which it turns into a broiler cannot be said to be altering, treating or adapting the chick. It is common ground that a chick when it is about ten weeks old can be considered to be a broiler. All that the respondents are said to have done is to rear male chicks and female chicks. As far as the male chicks are concerned, when they were ten weeks old, they were sold as broiler. As far as female chicks were concerned, it seems that they were kept and those of them that turned into layers were preserved for the purpose of getting eggs. In our view, the activity of rearing the male chicks into broiler cannot possibly be regarded as amounting to manufacture even within the extended meaning of the said term in sub-section (17) of section 2 of the said Act.
4. We may now refer to the cases cited by Mr. Thakor. Mr. Thakor placed strong reliance on the decision of a Division Bench of this Court in Commissioner of Sales Tax v. Dunken Coffee Manufacturing Co. [1975] 35 STC 493. In that case, the respondents purchased coffee seeds, roasted them, ground them and prepared coffee powder out of the seeds. The respondents also purchased ready-made chicory powder and thereafter mixed and blended the coffee powder prepared by them with the chicory powder purchased by them and produced the mixture “French Coffee”. The Tribunal found that French Coffee in its characterstic was different from pure coffee powder, that the coffee powder when mixed with chicory powder might change in colour and odour and that what was produced was a new mixture in which some of the original components might have been merged. It was held by the Division Bench that the mixing and blending of coffee powder with chicory powder so as to bring into being a different commercial product known as “French Coffee” was a process which amounts to manufacture within the meaning of section 2(17) of the said Act. It has been held by the Division Bench that for an activity to amount to manufacture it must result in a different commercial article or commodity. It must not be a commodity which is commercial the same as it was before the activity was applied to it. In some cases the ingredients are totally transformed and, in another given case, it may be that they undergo some change, alteration or transformation and yet retain their essential character and properties. The test in all cases, therefore, is to ascertain whether the activities result in a commercially different commodity and it is irrelevant whether this result is produced by a mechanical or chemical process or otherwise. It was also held that the definition of the term “manufacture” in section 2(17) of the said Act was very wide and included within its term certain activities which in ordinary parlance may not be regarded as manufacture. But even under the very definition, the various activities set out therein must result in a different commercial commodity in order that such activities may amount to manufactured of goods. In our view, this decision does not carry the submission of Mr. Thakor any further at all. In fact, what the decision lays down is that although certain activities might, looking to the plain words of section 2(17), fall within the definition, yet they cannot be regarded as manufacture if they do not result in bringing about a different and new commercial commodity. It is impossible to read this decision as laying down that whenever any activity results in coming into existence of a new commercial commodity, that activity must amount to manufacture within the meaning of the said expression in sub-section (17) of section 2. A plain reading of the judgment makes it clear that this argument was not canvassed before the Division Bench at all nor has the Division Bench considered the same. Looking to the language of section 2(17), it is clear that notwithstanding that the result of an activity might be the coming into existence of a new commercial product yet to fall within the definition of the term “manufacture” the activity must be or must amount to one of the activities referred to in said sub-section.
5. Mr. Thakor next drew our attention to the decision of the Supreme Court in State of Karnataka v. B. Raghurama Shetty . This case again is of no relevance for the determination of the question before us, because all that is held there is that paddy and rice are two distinct commodities and the milling of paddy involves a manufacturing process. This decision throws no light whatever on the question whether rearing a chick into a broiler amounts to manufacture. We may make it clear that although some contentions were raised before us as to whether a broiler can be regarded as a different commercial commodity from a one or two days old chick, we do not propose to go into that question, because even on the assumption that a broiler is a different commercial commodity from a chick, yet, in our view, rearing of a chick into a broiler does not amount to manufacture within the meaning of section 2(17) of the said Act.
6. Coming now to the second question, the facts found show that what the respondents did was merely to preserve and maintain laying hens in a proper condition so that they would lay eggs which the respondents collected, preserved and sold. It is beyond dispute that eggs must be regarded as goods and also that the eggs are produced in the sense that when a hen lays an egg, it can be said to have produced that egg. The question which really falls for consideration is whether for the purposes of section 2(17) of the said Act, the man who keeps hens can be said to have produced the eggs laid by the hens. In this connection, we cannot lose sight of the fact that it is in the nature of a laying hen that it will by eggs. The eggs are laid by a biological and natural process. It cannot thus be said that the keeper of a laying hen is the manufacturer of the eggs laid by the hen. It was urged by Mr. Thakor that if a person employs workmen in order to produce certain commodities or goods, he can certainly be regarded as a producer or a manufacturer of those goods although physically the goods might have been produced by the workmen and similarly a person who keeps laying hens with a view to obtaining eggs and selling them for profit must be regarded as the producer of these eggs. It is difficult to accept the analogy given by Mr. Thakor. In the case of an employer employing workmen to produce goods, the goods are not merely produced by keeping workmen. Merely keeping the workmen and maintaining them or paying them wages would only lead to waste of money. If workmen have to produce goods, they have to be directed to do particular work. They have to be given basic materials from which the goods are to be produced and so on whereas in the case of a person merely keeping laying hens all that he does to do is to keep the hens in goods health and to feed them, and the hens will lay eggs in the curse of nature. Thus we fail to see how a person merely keeping laying hens and feeding them could be regarded as a producer or manufacturer of those eggs even within the wise definition given in sub-section (17) of section 2 of the said Act. In the present case, there is nothing to show that the respondents did anything more in respect of layers than keeping them in proper health and feeding them. It is true that the respondents must have taken proper care to collect the eggs, to preserve them and to sell them. But all those activities were conducted after the eggs were laid or produced, and on account of those activities, it could not be said that it was the respondents who produced the eggs.
7. In the result, the questions referred to us are answered as follows :
Q. No. (a) in the affirmative.
Q. No. (b) in the affirmative.
8. As the respondents have not appeared before us, there will be no order as to costs.
9. Before parting with the matter, we must mentioned that we are obliged to Mr. Patel for the assistance which he rendered willingly as amicus curiae.
