J. Gupta (Judicial Member)
1. By the instant application Eastern Gases Ltd., a limited company, and one of its directors challenge the validity of the orders of the respondent No. 1 whereby the applicant-company’s (hereinafter referred to as “the company”) prayer for amendment of its registration certificate was rejected. The company is registered under the West Bengal Sales Tax Act, 1994 (in short “the 1994 Act”) as a re-seller. It subsequently installed the plant at Durgapur for processing of raw liquid petroleum gas (LPG) at various stages and ultimately bottling the same in cylinders. It applied to the Commercial Tax Officer (respondent No. 1) for amendment of the registration certificate (R.C.) showing it (the company) as a manufacturer. According to the company, the processing of LPG in its plant includes various stages of refining of the gas, blending the same with mercaptan as per specific requirement under the Indian Explosives Act and the ultimate bottling of the refined LPG in cylinders for public consumption. In the opinion of the company, such bottling of LPG thus constitutes a manufacturing process. It alleges that respondent No. 1 without appreciating that the bottling process involves a manufacturing process wrongly rejected its (the company’s) prayer for amendment of the R.C. The company then moved the two successive revisional forums (respondent Nos. 2 and 3) against such order of rejection of its prayer. But the revising authorities also rejected the company’s prayer. As the last resort the company moved another revision application before the Additional Commissioner of Commercial Taxes, Durgapur (respondent No. 4) ; but the said petition also met the same fate. Hence, the company has filed the instant application before this Tribunal challenging the orders of respondent Nos. 1, 2, 3 and 4.
2. According to the respondents, the process of bottling, as undertaken by the bottling plants like that of the company, is pure and simple filling up of gas cylinders for public consumption and does not conform to a manufacturing process. Hence, they defend the impugned orders.
3. The issue before us is whether the process of bottling LPG into cylinders constitutes a manufacturing process. The expression “manufacture” has been defined in Sub-section (17) of Section 2 of the 1994 Act. The sub-section reads thus :
“(17) ‘Manufacture’, with all its grammatical variations and cognate expressions, means producing, making or extracting any goods, and includes blending of tea, but does not include a works contract or such manufactures or manufacturing processes as may be prescribed.”
4. Be it mentioned that no prescription has so far been made under this sub-section. The scope of the expression “manufacture” in the context of the sales tax statutes came up for consideration of the Supreme Court in a large number of cases. It is now the settled position that “manufacture” implies a change but every change is not manufacturing and that a process amounts to manufacture if in its course a new and different article must emerges having a distinct name, character and use [the decision reported in Collector of Central Excise, Madras v. Kutty Flush Doors & Furniture Co. (P) Ltd.  70 STC 314 (SC) may be referred to]. In order to substantiate its claim that the bottling process is in fact a manufacturing process, the company in paragraph 6 of its application has enumerated a series of processes which it claims to be the essential parts of the bottling process. Though most of these processes belong to the stages anterior to the one at which the processing at the company’s plant commences, sub-paras D, E, F and G of this paragraph, however, speak of certain processes which the company claim to undertake as the essential part of bottling operation. According to Mr. J.K. Goswami, learned State Representative, such claim of company is an innovative stance not urged either before the respondent No. 1 or any of the first two revising authorities. Mr. S.N. Bose, learned Senior Counsel for the applicant, has submitted that though before respondent No. 1 or the first two revising authorities the details of the actual bottling processes, amounting to manufacture, have not been highlighted but before the third revisional forum, viz., the Additional Commissioner of Commercial Taxes, as well as in the memorandum of revision as filed before him, all these aspects have been elaborated. According to Mr. Goswami, these pleas are untenable firstly because such new pleas set up before an incompetent forum are of no consequence and secondly because none of these pleas can stand to scrutiny. We fully endorse the view of Mr. Goswami because the 1994 Act does not conceive of a third revisional forum. Even Mr. Bose is fair enough to concede that Rule 244(2) which prescribes the rules for revision of orders contemplates only two tiers of revisional forums. We find that against an order by a Commercial Tax Officer or an Inspector the first revision application lies before the Assistant Commissioner (vide Clause (a) to Sub-rule (2) of Rule 244), whereas against such revisional order passed by the Assistant Commissioner the second revisional application lies before the Deputy Commissioner [vide Clause (c) to the Sub-Rule]. Again, when the original order to be challenged in a revision is by the Assistant Commissioner, the first revision application lies before the Deputy Commissioner [vide Clause (b) of the sub-rule], whereas against the first revising order by the Deputy Commissioner the second revision lies before the Additional Commissioner [vide Clause (d) of the sub-rule]. In the instant case before us, the order rejecting the prayer for amendment of the R.C. was passed by the Commercial Tax Officer. The Assistant Commissioner was the appropriate forum for preferring first revision application and against the order of first revisional authority the second revision application would lie before the Deputy Commissioner whose revisional order in such circumstances will exhaust the revisional forums under the 1994 Act, There is no scope for a third revisional forum. Therefore, the Additional Commissioner of Commercial Taxes, Durgapur Zone, does not have any statutory competence to entertain a revisional application against the order of second revisional authority, viz., the Deputy Commissioner. Accordingly, the submissions made before such third revisional forum are of no consequence and the order passed by such incompetent forum is non-est. According to Mr. Goswami, the company by raising such innovative “factual issues” before such incompetent forum, without agitating such issues before the three competent authorities below, namely, the Commercial Tax Officer, the Assistant Commissioner and the Deputy Commissioner, cannot be permitted to canvass the said issues before this Tribunal. He contends that this is a ploy, just by touching an incompetent forum to legitimize some factual issues which were not, however, raised up to the level of the second revisional authority. We find much substance in the contention of Mr. Goswami. What surpasses our comprehension is how a senior official of the rank of Additional Commissioner could act as third revisional authority which is inconceivable under the 1994 Act, and that too allowing raising of factual issues not at all canvassed before the competent forums, namely, the Commercial Tax Officer, the Assistant Commissioner and the Deputy Commissioner. Thus such factual issues having made their maiden appearance (because the third revisional forum is an incompetent one) before this Tribunal, we could have refused to probe into these new issues ; but Mr. Goswami himself has put in much labour in arguing that these new issues, placed under appropriate scrutiny, would expose absence of any intrinsic merit. Hence, we proceed to examine these issues.
5. Mr. Bose has argued that the LPG, as delivered by the manufacturer to the applicant-company, is taken through various processes before putting them in cylinders for ultimate delivery to the consumers. Mr. Goswami has disputed this assertion. However, Mr. Bose sought time to produce technical literature on the industrial process of bottling of LPG, in order to show that the processes enumerated in sub-paras D, E, F and G of para 6 of the application are essential parts of the bottling process. But after two adjournments Mr. Bose has expressed his inability to produce any such literature. It is not the case of the company that LPG, as received by it through the tankers from the manufacturer, is in a state different from what other bottling plants in the country get, so that it (the company) has to subject the contents of such tankers to some additional processes which other bottling plants are not required to do. Undisputedly, the only “project report” in relation to its (the company’s) bottling plant, pressed into service before the Commercial Tax Officer and the first two competent revisional authorities, is the one which has been annexed to the affidavit-in-opposition as annexure A. The relevant part of this report dealing with the technology of bottling process runs thus :
“The process of filling LPG in cylinders is simple, standardised and common. The process consists of transfer of LPG gas from LPG bullets (tankers) to the specially built storage tanks and then pumped to filling station. From the filling station LPG is filled in cylinders with the help of filling guns. Filled LPG cylinders are weighed and, if necessary, purged to get standard weight. Then cylinders are tested for any leakage in body on ‘Deep Testing Machine’ and for leakage in valve by valve tester. Then inspected and sealed cylinders are transferred to storage shed of finished goods.”
6. Thus what is done in course of the bottling process is to transfer LPG out of the bulk quantity contained in storage tanks into small containers, viz. cylinders, suiting the convenience of transportation and requirement of the individual consumers through the agency of the retailers.
7. Mr. Bose during the course of his argument has contended that there is another project report, a real technical project report, on the basis of which the company got registered under the Department of small-scale Industries, Government of West Bengal and such project report will affirm the company’s claim that before actually filling the cylinders with LPG, it is subjected to large number of processes for converting the raw LPG into a refined gas, blended with ethyl mercaptan gas, making LPG fit for consumption at the customers’ end. For the purpose of producing such project report Mr. Bose took two adjournments, but ultimately he has given up the plea of existence of such a technical project report. We are constrained to say that this is an attempt to mislead the Tribunal to believe something which does not exist.
8. Mr. Bose has drawn our attention to the definition of “manufacture of gas” as contained in Sub-rule (xxv) of Rule 2 of the Gas Cylinders Rules, 1981. According to this definition, manufacture of gas means filling of a cylinder. Mr. Bose contends that in view of this definition the company is entitled to be treated as a manufacturer. But a special definition for the purpose of the Gas Cylinder Rules, 1981 is limited in its scope. On the other hand, the 1994 Act for its own purpose gives a definition of the expression “manufacturer” and the apex Court of our country has in its various decisions interpreted the specific import of this definition. The definition of “manufacture of gas” within the meaning of the Gas Cylinder Act, 1981 cannot be adopted for the purpose of the 1994 Act in derogation of the said interpretations of the Supreme Court.
9. In the case of Commissioner of Sales Tax, U.P., Lucknow v. Harbilas Rai and Sons  21 STC 17, it has been held by the Supreme Court that the word “manufacture” has various shades of meaning, and in the context of sales tax legislation, if the goods to which some labour is applied remain essentially the same commercial article, it cannot be said that the final product is the result of manufacture. Again, in the case of Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Pio Food Packers  46 STC 63, the Supreme Court has observed that it is only when a change or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article, a manufacture is said to have taken place. We have already said from the project report that what the company does is the transfer of LPG from big containers to fill in small containers like cylinders, without any characteristic change of the contents. Mr. Bose has referred to a Few reported decisions, but in all these cases except one the courts concerned in their respective decision have observed that there was a manufacturing process because there was an emergence of absolutely a new commercial item as the outcome of the process. However, only in the case reported in Abdos Oil Pvt. Ltd. v. Assistant Commissioner of Commercial Taxes, Special Cell  121 STC 166 (WBTT); (1999) 33 STA 96 (WBTT) blending of perfumes to coconut oil has also been considered to be a manufacturing process by this Tribunal. We shall discuss the applicability of decisions in the following paragraphs.
10. The claim of the company is that it mixes mercaptan gas to LPG to give the latter a distinct smell to facilitate detection of leakage of LPG and such blending is akin to blending of perfumes to coconut oil. Mr. Bose in this context refers to the decision of this Tribunal in the case of Abdos Oil Pvt. Ltd. v. Assistant Commissioner of Commercial Taxes, Special Cell reported in  121 STC 166 ; (1999) 33 STA 95. In the said case it has been held that blending of RED coconut oil with perfume amounts to manufacture. According to Mr. Bose, on the same analogy adding of ethyl mercaptan to LPG amounts to manufacture. But the question of application of the ratio of this decision may be considered if the company at all mixes ethyl mercaptan to LPG. The company’s case in this regard has changed from time to time as the argument before us has proceeded. In the early part of his argument Mr. Bose has argued that LPG, received by the company from its suppliers in big tankers, is not at all added with ethyl mercaptan gas (hereinafter referred to as E.M. gas) and it is the company which under the statutory obligation under the Indian Explosives Act mixes that gas to LPG, Mr. Goswami has submitted that this plea has never been raised before the Commercial Tax Officer or the two revisional authorities. Mr. Bose has, however, conceded that this issue was not raised before the authorities below. Mr. Goswami even asked Mr. Bose to produce a certificate from the company’s supplier disclosing the position in regard to that issue. At this stage Mr. Bose on consulting his client present in the court room, has taken a new stand that LPG supplied to the company is partially mixed with E.M. gas necessitating further addition of the same to ensure presence of the latter in requisite percentage in LPG. Mr. Goswami has again disputed this claim, Mr. Bose to substantiate his claim sought adjournments to produce standard technical literature or at least to produce a certificate from the supplier supporting the company’s claim of mixing E.M. gas to make it present in LPG in requisite percentage. But even after two consecutive adjournment Mr. Bose has failed to produce any such document and has ultimately given up the plea relating to addition of E.M. gas to LPG. Mr. Bose has shown us a document to prove that on one occasion the applicant-company purchased E.M. gas. According to Mr. Goswami, this document has been procured only for fabricating evidence to prop up its story of blending E.M. gas and the document all alone showing a solitary instance of purchase, is not capable of proving that the applicant is at all mixing or is required to mix such gas to LPG. Moreover, Mr. Goswami has produced a letter from the Indian Oil Corporation Ltd. (in short, the Corporation). In this letter the Corporation makes a candid declaration that E.M. gas is added to LPG at their end and that there is no facility of mixing E.M. gas to LPG at the bottling plants. This letter goes to attest the fact that in the bottling plant only liquid LPG is filled up into cylinders and question of any chemical change in LPG does not arise. Mr. Bose neither disputes this, nor does he want to put the applicant’s bottling plant on a footing separate from other bottling plants. So the story of adding E.M. gas falls through. The ratio of the decision in the case of Abdos Oil Pvt. Ltd. v. Assistant Commissioner of Commercial Taxes, Special Cell  121 STC 166 (WBTT) ; (1999) 33 STA 95 (WBTT) does not have any application to the instant case.
11. In the result, we are of the opinion that the process of bottling LPG at the plant of the company does not amount to manufacture. Hence, there is nothing wrong in the impugned orders of the Commercial Tax Officer and the first two revisional authorities. The order of the Additional Commissioner, Durgapur Zone being out of jurisdiction is not taken into consideration at all. Therefore, the application is dismissed. We make no order as to costs.
D. BHATTACHARYYA (Technical Member).–I agree.