{"id":207326,"date":"1976-10-29T00:00:00","date_gmt":"1976-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-etc-vs-the-central-provinces-manganese-on-29-october-1976"},"modified":"2015-10-24T14:43:55","modified_gmt":"2015-10-24T09:13:55","slug":"state-of-maharashtra-etc-vs-the-central-provinces-manganese-on-29-october-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-etc-vs-the-central-provinces-manganese-on-29-october-1976","title":{"rendered":"State Of Maharashtra Etc vs The Central Provinces Manganese … on 29 October, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Maharashtra Etc vs The Central Provinces Manganese … on 29 October, 1976<\/div>\n
Equivalent citations: 1977 AIR 879, \t\t 1977 SCR (1)1002<\/div>\n
Author: M H Beg<\/div>\n
Bench: Beg, M. Hameedullah<\/div>\n
           PETITIONER:\nSTATE OF MAHARASHTRA ETC.\n\n\tVs.\n\nRESPONDENT:\nTHE CENTRAL PROVINCES MANGANESE ORE CO. LTD.\n\nDATE OF JUDGMENT29\/10\/1976\n\nBENCH:\nBEG, M. HAMEEDULLAH\nBENCH:\nBEG, M. HAMEEDULLAH\nRAY, A.N. (CJ)\nSHINGAL, P.N.\n\nCITATION:\n 1977 AIR  879\t\t  1977 SCR  (1)1002\n 1977 SCC  (1) 643\n CITATOR INFO :\n E\t    1980 SC  86\t (5)\n D\t    1986 SC 515\t (106)\n D\t    1986 SC1323\t (71)\n RF\t    1988 SC 740\t (19)\n\n\nACT:\n\t    Sales  Tax--Central Provinces and Berar Sales  Tax\tAct,\n\t1947, s. 2(g), Expln. II--Goods within State at the time  of\n\tcontract  of  sale, mixed up outside State and\tthe  mixture\n\tsold---\"Sale' if taxable.\n\t    Interpretation of Statutes--Provision in Act substituted\n\tby another--Amending provision void--Effect.\n\tWords and Phrases--`Substituted; meaning of.\n\n\n\nHEADNOTE:\n\t  Section   2(g)  of the Central Provinces and\tBerar  Sales\n\tTax   Act,   1947 defines 'sale' and Explanation II  to\t the\n\tsub-section  provides that notwithstanding anything  to\t the\n\tcontrary in the Indian Sale of Goods Act, 1930, the sale  of\n\tany  goods which are actually in the State at the time\twhen\n\tthe  contract  of sale, as defined in that  Act\t in  respect\n\tthereof\t is  made, shall, wherever the contract of  sale  is\n\tmade,  be deemed for the purpose of this Act to\t have  taken\n\tplace  in the State.  The Amending Act of  1949\t substituted\n\tfor this  Explanation  another Explanation but as the amend-\n\tment  did  not receive the assent of  the  Governor  General\n\tunder  S. 107 of the Government of India Act, 1935,  it\t was\n\tvoid.\n\t  The  assessee owned manganese ore mines in the  State\t and\n\twas entering into contracts at places outside the State\t for\n\tthe  despatch  abroad  of manganese  ore  through  different\n\tports.\tThe contracts contained specifications of  strengths\n\tof manganese ore to be supplied with permissible percentages\n\tof  other ingredients an admixtures.  The assessee  arranged\n\tfor  the  transport of various grades of  menganese  ore  in\n\trailway wagons from one or more of the mines, and the order\n\tin  which  trucks were loaded and unloaded was\tso  arranged\n\tthat   the   required  average consistency  or\tstrength  of\n\tmanganese ore specified in the contracts was obtained in the\n\tcourse\tof such unloading.  The assessee described the\tpar-\n\tticular type of conglomerate as 'Oriental mixture.'\n\tThe assessee contended (1) that the original Explanation  II\n\twas  validly repealed by the Amending Act and since no\tsub-\n\tstitution  of  the new provision had taken place,  only\t the\n\trepeal\tsurvived, and that, therefore neither the  old\tuna-\n\tmended provision nor its replacement were in operation, with\n\tthe result that the Sales after the date of amendment  were.\n\tnot  subject  to sales tax, and (2) even assuming  that\t the\n\tunamended  provision was in force, 'Oriental Mixture', as  a\n\ttaxable\t commodity came into existence only after  the\tores\n\tgot  mixed up in the process of unloading and not before  so\n\tthat, its sale could not be taxed as 'goods which are  actu-\n\tally  in  the State',  at the time  when   contracts:\twere\n\tentered into.\n\t    The High Court on a reference held the first  contention\n\tagainst the assessee and the second in favour of the  asses-\n\tsee.  Both sides appealed to this Court.\n\tDismissing  the\t appeals of the assessee and  allowing\t the\n\tappeals\t of the State.\n\tHELD: (1) As the period involved is preconstitution  period,\n\tArt.  286  of Constitution, which is  not  retrospective  in\n\toperation  would not help the assessee even though  the\t as-\n\tsessment  was after the Constitution came into force.  [1007\n\tF]\n\t    (2) There was no repeal of the existing Explanation when\n\t'substitution'\tby  means of the amending Act failed  to  be\n\teffective and so the sale could be taxed under it. [1012  A-\n\tB]\n\t    (a) The question is one of gathering the intent from the\n\tuse of words in the enacting provisions seen in the light of\n\tthe  procedure\tgone  through, and from the  nature  of\t the\n\taction of the authority which functions, [1010 B]\n\t1003\n\t    (b)\t The  word 'substitution' does\tnot  necessarily  or\n\t'always\t  connote   two severable steps, one of\t repeal\t and\n\tanother\t of  a\tfresh  enactment,  even if  it\timplies\t two\n\tsteps.\tThe natural meaning of the word 'substitution' is to\n\tindicate  that\tthe process cannot be so split up.   If\t the\n\tprocess\t described  as substitution fails,   it\t is  totally\n\tineffective  so\t as to leave in tact what was sought  to  be\n\tdisplaced.  It could not be inferred that; what was intended\n\twas that in case the substitution failed or proved  ineffec-\n\ttive,  some repeal, not mentioned at all, was brought  about\n\tand remained effective so as to create what may be described\n\tas a vacuum in the statutory law on the subject-matter.\t The\n\tterm 'substitution' when it occurs without anything else  in\n\tthe  language  used or in the context of it or in  the\tsur-\n\trounding  facts and circumstances, means,  ordinarily,\tthat\n\tunless the substituted provision is there to take its place,\n\tin  law and in effect, the preexisting provision  continues.\n\t[1009 H, 1010 A-G]\n\t    (c)\t In the present case, the whole legislative  process\n\ttermed\tsubstitution was abortive. because, it did not\ttake\n\teffect\tfor  want  of the  assent  of  the  GovernorGeneral.\n\tConsidering  the actual procedure, even if the Governor\t had\n\tassented  the  substitution,  yet the amendment\t would\thave\n\tbeen effective as a piece of valid legislation only when the\n\tassent of the Governor-General had also been accorded to it.\n\tIt could not be said that what the Legislature intended\t  or\n\twhat the Government had assented to consisted of a  separate\n\trepeal\tand  a\tfresh enactment.  The two  results  were  to\n\tfollow from one and the same effective legislative  process.\n\t[1010 CD]\n\t    (d) It is easier to impute an intention to an  executive\n\trule-making  authority to repeal altogether, in\t any  event,\n\twhat is sought to be displaced by another rule, because\t the\n\trepeal as we11 as replacement are capable of being  achieved\n\tand inferred from a bare issue of fresh instructions on\t the\n\tsame subject.  In the case of a legislative provision sought\n\tto be amended by a fresh enactment, the procedure for enact-\n\tment  is far more elaborate and formal.\t A  repeal   and   a\n\treplacement of a legislative provision by a fresh  enactment\n\tcan only take place after such elaborate procedure has\tbeen\n\tfollowed in toto.  Even the analogy of a merger of an  order\n\tinto another which was meant to be its substitute could only\n\twhere there is a valid substitute. [1011 C-F, 1012 A-B]\n\t       Koteswar Vittal Kamath v.K. Rangappa Balica & Co. AIR\n\t1969  SC & 509 [1969] (3) SCR 40. @ 47 Firm  .A.T.B.  Mehtab\n\tMajid  &  Co. v. State Madras [1963] Suppl. 2, SCR  435\t and\n\tB.N.  Tewari  v.  Union of India & Ors. [1965]\t2  SCR.\t 421\n\texplained.\n\t    Shriram  Gulabdas v. Board of Revenue, Madhya Pradesh  &\n\tAnr.<\/a> (1952) 3 STC 343 @ 367 approved.\n\t    3. The present case is not one of mixing various  ingre-\n\tdients at a 'mixing works', and the product which comes into\n\texistence  being sold as a separate commercial commodity  in\n\tthe  market.  The goods got mixed up in the process  of\t un-\n\tloading without employing any mechanical or chemical process\n\tof  manufacture.  The mere fact that the  specifications  in\n\tthe  conrtacts were satisfied when they got so mixed  up  is\n\tnot a good enough ground for holding that a new product\t has\n\tbeen manufactured.  The mere giving of the new name  'Orien-\n\ttal  mixture  by the assessee to. what is  really  the\tsame\n\tproduct is not the manufacture of a new product. [1013\tA-D,\n\tG-H, 1014 A-B]\n\t      The Stale of Madras v. Bell Mark Tobacco Co.<\/a> (1967) 19\n\tSTC  129,  The State of Madras v. Swasthik  Tobacco  Factory<\/a>\n\t(1966) 17 STC 316 and Anwarkhan Mchboob Co. v. The State  of\n\tBombay\t(Now Maharashtra) & Ors.<\/a> (1960) 11 STC 698 and\tShaw\n\tBros  &\t Co. v. The State of West Bengal (1963) 14  STC\t 878\n\treferred to.\n\t    Shaw  Wallace  &  Co. Ltd. v. The State  of\t Tamil\tNadu<\/a>\n\t(1976) 37 STC 522 explained.\n\t    Nilciri Ceylon Tea Supplying Co. v. The State of  Bombay\n\t(1959) 10 STC 500 approved.\n\n\n\nJUDGMENT:\n<\/pre>\n
\t    CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 446–449
\n\tof 1976.\n<\/p>\n
\tAppeals by Special Leave from the judgment and Orders dated.
\n\t14-1338SCI\/76
\n\t1004<\/span>
\n\t7-4-1969  and  25-1-1972 of the Bombay\tHigh  Court  (Nagpur
\n\tBench) In S.T.R. Nos. 17 to 20 of 1964 and
\n\tCIVIL APPEAL NOS. 450453 OF 1976.\n<\/p>\n
\t    Appeals  by Special Leave from the judgment\t and   order
\n\tdated  28-1-1972 of the Bombay High Court (Nagpur Bench)  in
\n\tG.S.T. Reference Nos. 17-20\/64.\n<\/p>\n
\t    V. p. Raman, Addl. Sol. General for India, S.B. Wad\t and
\n\tM. N Shroff for Appellants in CAs. 450 to 453\/76.
\n\t    G.L. Sanghi, A. S. Bobde, M.L. Vaidya, V.A. Bobde, A. G.
\n\tMeneses, J.B. Dadachanji, K.J. John, O.C. Mathur and Ravind-
\n\ter Narain for the Respondents in CAs. 446-449\/76 and  Appel-
\n\tlants in (2. As. 450-453\/76
\n\tThe Judgment of the Court was delivered by
\n\t    BEG,  J.–The eight appeals before us by  special  leave
\n\tarise out of four Sale “Tax References, under Section  23(1)
\n\tof  the\t Central Provinces and Berar Sales  Tax\t Act,  1947,
\n\t(hereinafter  referred\tto as ‘the Act’).  Six common  ques-
\n\ttions  arose  here relating to\t assessments  for  different
\n\tperiods\t on  identically similar facts stated  below.\tFive
\n\tof these were decided by a Division Bench of the Bombay High
\n\tCourt. As it answered the main question determining liabili-
\n\tty   to pay the sales tax under the Act against\t the  State,
\n\tthere  are four appeals against it by the State.  The  sixth
\n\tquestion,  which  was one of law only, was referred  by\t the
\n\tDivision Bench to a Full Bench, and, this was determined  in
\n\tfavour of the State.  There are, therefore, four appeals  by
\n\tthe assessee against the Full Bench decision.
\n\t    M\/s.  Central  Provinces Manganese Ore  Co.\t Ltd.,\t the
\n\tassessee,  has\tits Head Office in London.   It\t carries  on
\n\tbusiness  on  an extensive scale. It owns 22  manganese\t ore
\n\tmines  in  Madhya Pradesh from where  manganese\t ore,  after
\n\tbeing  excavated,  is sent mostly abroad  through  different
\n\tports.\t The Company is a registered dealer under  the\tAct.
\n\tIt  used  to enter into contracts at places  outside  Madhya
\n\tPradesh\t for the despatch of what came to be known,  in\t the
\n\tspecial parlance of this company’s business,  as   “Oriental
\n\tMixture”   But the contracts contain specifications only  of
\n\tstrengths of  manganese ore to be supplied with\t permissible
\n\tpercentages  of other ingredients as admixtures.   The\tterm
\n\t“Oriental  Mixture”  was evidently employed by\tthe  Company
\n\titself\tto describe a particular type of conglomerate  which
\n\tthe unloading at one place of Various types of manganese ore
\n\tproduced.   The required average consistency or strength  of
\n\tmanganese  ore\tspecified in the contracts,  which  did\t not
\n\tcontain\t a reference to any “Oriental Mixture”, was said  to
\n\tbe  obtained  in the course of this  mechanical\t process  of
\n\ttransportation\twhen  various grades of manganese  ore\twere
\n\theaped together.  These grades of manganese ore were  trans-
\n\tported,\t in railway wagons,  from one  or more\tmines,\tand,
\n\tit  appears  that the order in which trucks  were.loaded  in
\n\tgoods  trains  and unloaded was also  so,arranged  that\t the
\n\tmixture came into existence, as described above, in the mere
\n\tprocess of unloading  at the port.\n<\/p>\n
\t1005<\/span><\/p>\n
\tBut,  this  procedure did not seem to involve a\t process  of
\n\t“Manufacture”,\tas  that term is ordinarily  understood,  to
\n\twhich  the  assessee  could be said to\thave  subjected\t its
\n\tmanganese ore.\n<\/p>\n
\t    The case of the assessee company was that the  “Oriental
\n\tMixture”  as  a taxable commodity came into  existence\tonly
\n\tafter the ores got mixed up in the process of unloading\t and
\n\tnot before so that it could not be taxed as “goods in exist-
\n\tence” in Madhya Pradesh at the time when ,contracts relating
\n\tto  these goods were made.  This is the crucial\t and  simple
\n\tquestion, largely one of fact, which resulted in  considera-
\n\tble  :argument\tbefore the High Court and  before  us  also.
\n\tOther questions ,appear to be subsidiary.  Nevertheless;  we
\n\thave   to   consider   them ‘before coming  to\tthe  crucial
\n\tquestion  which is:  Is the process described above  one  of
\n\t“manufacture”  so  that\t  a new kind   of  goods,  known  as
\n\t“Oriental  Mixture”, came into existence at the\t port  where
\n\tmanganese ore trucks were unloaded?\n<\/p>\n
\t    As\tthe High Court pointed out, the periods involved  in
\n\tthe   four  references before it were not  governed  by\t the
\n\tprovisions of the Constitution.\t They related to the follow-
\n\ting period:\n<\/p>\n
\t1. Reference No. 17 of 1964 for the period 1st January, 1947
\n\t30th September, 1947.\n<\/p>\n
\t    2. Reference No. 18 of 1964 for the period 1st  October,
\n\t1947 to 31st December, 1948.\n<\/p>\n
\t    3. Reference No. 19 of 1964 for the period 1st  January,
\n\t1949 to 31st December, 1949.\n<\/p>\n
\t    4. Reference No. 20 of 1964 for the period 1st  January,
\n\t1950 to 25th January, 1950.\n<\/p>\n
\tWe, therefore, agree with the High Court’s view that Article
\n\t286  of\t the  Constitution, which is  not  retrospective  in
\n\toperation, could not help the assessee merely because it was
\n\tthere at the time of assessment.\n<\/p>\n
\t    The next question to be considered, which was   referred
\n\tto   the Full Bench, flows from Explanation (II) to  Section
\n\t2(g)  of the Act which was amended by the C.P. & Berar\tSale
\n\tTax (Amendment) Act No. XVI of 1949, came into force on 11th
\n\tApril,\t1949.  Hence, the law, as found after  the  amending
\n\tAct,  could  apply, .if valid, only to the last\t two  refer-
\n\tences.\t But, the question  which  arose, on the  assumption
\n\tthat  the  amendment  was ineffective,\t was   whether\t the
\n\tunamended  law could be applied at all after  the  purported
\n\tamendment.\n<\/p>\n
\t    Section  2(g)  of the Act, with  its  two  explanations,
\n\tbefore\tit was amended, may be reproduced here in  toto.  It
\n\treads as follows:\n<\/p>\n
\t\t\t  “2(g)\t ‘sale’\t with all   its\t grammatical
\n\t\t      variations  and cognate expressions means\t any
\n\t\t      transfer\tof  property in goods  for  cash  or
\n\t\t      deferred payment or other valuable  considera-
\n\t\t      tion,  including\ta transfer  of\tproperty
\n\t\t      in goods made in course of the execution of  a
\n\t\t      contract,\t but  does not,include\ta  mortgage,
\n\t\t      hypothecation, charge or pledge:
\n\t\t      Explanation (I): A transfer of goods on  hire-
\n\t\t      purchase\tor other installment system of\tpay-
\n\t\t      ment’ shall,  notwithstanding
\n\t\t      1006<\/span>
\n\t\t      that  the seller retains a title to any  goods
\n\t\t      as  security  for\t payment of  the  price,  be
\n\t\t      deemed to be a sale;\n<\/p><\/blockquote>\n
\t\t      Explanation (11):\t Notwithstanding anything to
\n\t\t      the contrary in the Indian Sale of Goods\tAct,
\n\t\t      1930, the sale of any goods which are actually
\n\t\t      in the Central Provinces and Berar at the time
\n\t\t      when  the contract of sale as define  in\tthat
\n\t\t      Act in respect thereof is made, shall wherever
\n\t\t      the. said contract of sale is made, be  deemed
\n\t\t      for  the\tpurpose of this Act  to\t have  taken
\n\t\t      place in the Central Provinces and Berar”.
\n\t\t      Section 2 of the Amending Act of 1949  provid-
\n\t\t      ed:\n<\/p><\/blockquote>\n
\t\t\t  2.  In section 2 of the Central  Provinces
\n\t\t      and  Berar  Sales Tax  Act  1947\t(hereinafter
\n\t\t      referred to as the said Act),\n<\/p><\/blockquote>\n
\t\t\t  (a) in clause (g) for Explanation (I1) the
\n\t\t      following shall be substituted :–
\n\t\t\t   Explanation\t  (I1)\t  :–Notwithstanding
\n\t\t      anything\tto  the contrary in the Indian\tSale
\n\t\t      of Goods Act 1930, the sale or purchase of any
\n\t\t      goods shall be deemed for the purposes of this
\n\t\t      Act,  to\thave taken place in  this  province,
\n\t\t      wherever\tthe  contract of  sale\tor  purchase
\n\t\t      might have been made—\n<\/p><\/blockquote>\n
\t\t\t  “(a)\tif the goods were actually  in\tthis
\n\t\t      province at the time when the contract of sale
\n\t\t      or purchase in respect thereof was made, or\n<\/p><\/blockquote>\n
\t\t\t    (b)\t in  case the contract was  for\t the
\n\t\t      sale  or purchase of future goods by  descrip-
\n\t\t      tion, then, if the goods are actually produced
\n\t\t      or  found in this Province at any\t time  after
\n\t\t      the  contract of sale or purchase\t in  respect
\n\t\t      thereof was made”.<\/p><\/blockquote>\n
\t    The submission made on behalf of the assessee, which was
\n\taccepted  by the High Court was that, as the  amendment\t did
\n\tnot receive the assent of the Governor General under Section
\n\t107 of the Govt. of India Act, it was void.  It was,  howev-
\n\ter, also urged, on behalf of the assessee, that a repeal  of
\n\tthe  previously existing section did not require the  assent
\n\tof  the Governor General at all. The argument was  that\t the
\n\toriginal provision was validly repealed, but, as no  substi-
\n\ttution\tof the new provision could take place,\tbecause\t the
\n\tassent\tof the Governor General was not obtained,  only\t the
\n\trepeal survived.  The result of accepting such a  submission
\n\twould be that the substitution will have to be split up into
\n\ttwo  distinct enactments; firstly, a repeal of the  original
\n\tsection 2(g) of the Act; and, secondly, the substitution  of
\n\tthe  new  provision for the repealed  one.   The  assessee’s
\n\targument  was that two processes, one of repeal and  another
\n\tof  substitution, are necessarily implied in such an  amend-
\n\tment  as  the  one before us.  It was urged  that  both\t had
\n\treceived the assent of the Governor, but, since the  substi-
\n\ttuted  provision alone required the assent of  the  Governor
\n\tGeneral, which was not obtained, a repeal, which was assent-
\n\ted  to by the Governor, stood on its own  separate  footing.
\n\tThus, the result was said to be a repeal simpliciter without
\n\tthe enactment of the fresh provision meant to replace it.\n<\/p>\n
\t1007<\/span><\/p>\n
\t    It was submitted that the High Court, after finding\t the
\n\tsubstituted  provisions\t of section 2(g) of the\t Act  to  be
\n\tinvalid,  had  erred  in holding that the  repeal  was\talso
\n\tineffective.  It was contended that such a view resulted  in
\n\tattributing to the legislature an intention contrary to that
\n\twhich  it had unmistakably expressed by repealing  the\tuna-
\n\tmended\tprovision.  It was urged that the repeal, which\t was
\n\tclearly\t intended, must be held to be valid.   According  to
\n\tthis submission, neither the old unamended provision nor the
\n\treplacement  of\t it were in operation during the  last\ttwo.
\n\tassessment  periods.  Of course, this argument assumes\tthat
\n\tthe repeal and the new’ enactment are separate.
\n\t    In Shriram Gulabdas v. Board of Revenue, Madhya  Pradesh
\n\t&  Ant.\t C)<\/a> which was cited before us, it was held,  on\t the
\n\tquestion argued\t before us (at p. 366-367):\n<\/p>\n
\t\t\t    ”\t……\twe have already\t shown\tthat
\n\t\t      the  second Explanation in clause (g) of\tSec-
\n\t\t      tion  2,\twhich  makes an\t agreement  of\tsale
\n\t\t      taxable  even though the sale may\t have  taken
\n\t\t      place  outside.  the province,  is  not  ultra
\n\t\t      vires the Provision Legislature. We must\tmake
\n\t\t      it  clear that our answer to this question  is
\n\t\t      in  the affirmative, free from  considerations
\n\t\t      arising under Article 286. We have shown\tthat
\n\t\t      the  necessary  power to\tmake  the  unamended
\n\t\t      Explanation  did exist in the  State  Legisla-
\n\t\t      ture;  but we have also made it clear that  by
\n\t\t      virtue’ of Article 286 the Explanation can  no
\n\t\t      longer  be enforced because under the  present
\n\t\t      Constitution  the sales tax can only  be\tcol-
\n\t\t      lected  at the market and where the goods\t are
\n\t\t      delivered\t for consumption. We may also  state
\n\t\t      that the amended Explanation II is not validly
\n\t\t      enacted  because it makes drastic\t changes  in
\n\t\t      the  rules as found in the Sale of  Goods\t Act
\n\t\t      without\tobtaining   the’   assent   of\t the
\n\t\t      Governor-General.\t  The effect of the  amended
\n\t\t      Explanation going out would be to rehabilitate
\n\t\t      the old Explanation as it existed because\t the
\n\t\t      amendment being unconstitutional will fail  to
\n\t\t      work  any change in the law (See\tthe  opinion
\n\t\t      given  by\t one  of us,  Hidayatullah,  J.,  in
\n\t\t      Laxmibai v. The State (I.L.R. 1951) Nag.\t563,
\n\t\t      608, 610 (F.B.)”.<\/p><\/blockquote>\n
\t    No question relating to the enforcement of the Sales-tax
\n\tby  any\t collection to be made after the  Constitution\tcame
\n\tinto  force was raised the cases before us.  Only  questions
\n\trelating  to  taxability  arise here   As  we  have  already
\n\tindicated, Article 286 does not stand in the way of taxabil-
\n\tity.   This was held to be the correct position in the\tcase
\n\tof Shriram Gulabdas (Supra).  It was also clearly held there
\n\tthat  the ‘result of the invalidity of the amended  explana-
\n\ttion  was to leave the law unaltered as it stood before\t the
\n\tamendment. We approve of this pronouncement made long ago on
\n\tthis very question.\n<\/p>\n
\tIt  was\t urged on behalf of the assessee that  the  case  of
\n\tShriram Gulabdas (supra) contained what was merely an obser-
\n\tvation\twith regard the “rehabilitation” of the\t preexisting
\n\tlaw  as\t that question was no directly\tunder  consideration
\n\tthere.\tIt was also submitted that this observation must  be
\n\tdeemed to have been over-ruled by subsequent  pronouncements
\n\tof this Court.\n<\/p>\n
\t(1) (1952) 3 S.T.C. 343. 367.\n<\/p>\n
\t1008<\/span><\/p>\n
\t    The\t passage cited above by us occurs in  answering\t the
\n\tfifth question considered there which was framed as follows:\n<\/p>\n
\t\t\t  “(v) Whether Explanation II to clause\t (g)
\n\t\t      of Section 2, which makes an agreement of sale
\n\t\t      taxable  even though the sale may\t have  taken
\n\t\t      placed  outside the Province, ultra  vires  of
\n\t\t      the Provincial Legislature ?”\n<\/p><\/blockquote>\n
\tOther  questions  framed indicate that it was not  only\t the
\n\tvalidity of the provision, both before and after its  amend-
\n\tment, which was directly considered and pronounced upon, but
\n\tthe  application of the concept of sale under the  unamended
\n\tlaw  and its effects were also under consideration.   There-
\n\tfore, we think that the decision was directly on a  question
\n\twhich  necessarily arose for determination before the  Court
\n\ton that occasion.  We think that the view that the unamended
\n\tlaw  was in operation was not a mere obiter dictum.  It\t was
\n\tnecessary  to  decide that question before  other  questions
\n\tcould  be  determined.\tWe give out own\t reasons  below\t for
\n\taccepting the correctness of the view taken then.
\n\t    The\t following  passage  was also  cited  from  Koteswar
\n\tVittal Kamath  V.K. Rangappa Baliga & Co. (at p. 509):\n<\/p>\n
\t\t\t  “Learned   counsel  for  the\t respondent,
\n\t\t      however,\turged that the Prohibition Order  of
\n\t\t      1119  cannot,  in any case, be  held  to\thave
\n\t\t      continued after 8th March, 1950, if the  prin-
\n\t\t      ciple  laid down by this Court in Firm  A.T.B.
\n\t\t      Mehtab Majid & Co. v. State of Madras,  (1963)
\n\t\t      Supp. 2 SCR 435-(AIR 1963 SC 928) is  applied.
\n\t\t      In  that case, rule 16 of the  Madras  General
\n\t\t      Sales  Tax  (Turnover and\t Assessment)  Rules,
\n\t\t      1939,  was impugned.  A new R. 16 was  substi-
\n\t\t      tuted  for the old Rule 16 by  publication  on
\n\t\t      September 7, 1955, and this new rule was to be
\n\t\t      effective\t from  1st April, 1955.\t  The  Court
\n\t\t      held  that  the’ new Rule\t 16(2)\twas  invalid
\n\t\t      because  the provisions of that. rule  contra-
\n\t\t      vened the provisions of Article 304(a) of\t the
\n\t\t      Constitution.  Thereupon, it was urged  before
\n\t\t      the  Court that, if the impugned rule be\theld
\n\t\t      to  be invalid, the old Rule 16 gets  revived,
\n\t\t      so that the tax assessed on the basis of\tthat
\n\t\t      rule  will’ be good.  The Court rejected\tthis
\n\t\t      submission by holding that :\n<\/p><\/blockquote>\n
\t\t\t  ‘Once the old rule has been substituted by
\n\t\t      the  new rule, it ceases to exist and it\tdoes
\n\t\t      not  automatically  get revived when  the\t new
\n\t\t      rule is held to be invalid’.\n<\/p><\/blockquote>\n
\t\t      On  that\tanalogy, it was argued that,  if  we
\n\t\t      hold  that the Prohibition Order of  1950\t was
\n\t\t      invalid,\tthe  previous Prohibition  Order  of
\n\t\t      1119  cannot  be\theld to\t be  revived.\tThis
\n\t\t      argument\t ignores  the  distinction   between
\n\t\t      supersession of a rule, and substitution of  a
\n\t\t      rule.  In the case of (1963) Supp. 2 SCR\t435-
\n\t\t      (AIR 1963 SC 928) (supra), the new Rule 16 was
\n\t\t      substituted for the old Rule 16.\tThe  process
\n\t\t      of substitution consists of two steps.  First,
\n\t\t      the  old rule is made to cease to exist,\tand,
\n\t\t      next,  the new rule is brought into  existence
\n\t\t      in  its  place.  Even if the new rule  be\t in-
\n\t\t      valid, the first step of the
\n\t\t       (1)  A.I.R.  1969  S.C. 504.  509:  [1969]  3
\n\t\t      S.C.R. 40. 47.\n<\/p><\/blockquote>\n
\t\t      1009<\/span><\/p>\n
\t\t      old  rule ceasing to exist comes\tinto  effect
\n\t\t      and it was for this reason that the Court held
\n\t\t      that,  on declaration of the new rule  as\t in-
\n\t\t      valid,  the old rule could not be held  to  be
\n\t\t      revived”.\n<\/p><\/blockquote>\n
\t\t\t  In the above mentioned passage, this Court
\n\t\t      merely  explained the argument which  was\t ac-
\n\t\t      cepted in the case of firm A.T.B. Mehtab Majid
\n\t\t      & Co. v. State of Madras(1).  After doing\t so,
\n\t\t      it distinguished the facts in Koteswar’s\tcase
\n\t\t      (supra),\trelating to an alleged\tsubstitution
\n\t\t      of one Prohibition Order by a subsequent order
\n\t\t      which  was found to be invalid.\tIt  recorded
\n\t\t      its conclusion as follows (at p. 509):
\n\t\t\t   “In\tthe  case before us,  there  was  no
\n\t\t      substitution of the Prohibition Order of\t1950
\n\t\t      for the Prohibition Order of 1119. The  Prohi-
\n\t\t      bition Order of 1950 was promulgated independ-
\n\t\t      ently  of the Prohibition Order of  1119,\t and
\n\t\t      because of the provisions of law it would have
\n\t\t      had the effect of making the Prohibition Order
\n\t\t      of  1119\tinoperative if it had been  a  valid
\n\t\t      order.  If  the Prohibition Order of  1950  is
\n\t\t      found  to\t be void ab initio, it\tcould  never
\n\t\t      make  the Prohibition Order of  1119  inopera-
\n\t\t      tive”.\n<\/p><\/blockquote>\n
\t    The\t argument before us is that since the word  “substi-\n<\/p><\/blockquote>\n
\ttuted”\tis used in the amending Act of 1949, it\t necessarily
\n\tfollows that the process embraces two steps.  One of  repeal
\n\tand  another  of the new enactment. But,  this\targument  is
\n\tbasically  different  from the argument which  prevailed  in
\n\tKoteswar’s  case (supra) where a distinction was  drawn\t be-
\n\ttween a “substitution” and “supersession”.  It is true that,
\n\tas  the term substitution was not used there, the  old\trule
\n\twas not held to have been repealed.  Nevertheless, the\treal
\n\tbasis of that decision was that what was called supersession
\n\twas  void ab initio so that the law remained what  it  would
\n\thave been if no such legislative process had taken place  at
\n\tall.  It was held that the void and inoperative\t legislative
\n\tprocess\t did  not affect the validity  of  the\tpre-existing
\n\trule.\tAnd, this is precisely what is contended or  by\t the
\n\tState before us.\n<\/p>\n
\t    In\tthe case before us although the word  “substitution”
\n\tis  used  in  the amending Act, yet  the  whole\t legislative
\n\tprocess termed substitution was itself abortive.  The  whole
\n\tof  that  process did not take effect as the assent  of\t the
\n\tGovernor-General,  required  by Section 107 Govt.  of  India
\n\tAct, was lacking.  Such ineffectiveness was the very  reason
\n\twhy,  in  the case of Sriram Gulabdas (supra), it  was\theld
\n\tthat  the  previous law stood unaffected  by  the  attempted
\n\tlegislation  called  substitution.  Moreover,  the  case  of
\n\tShriram\t Gulabdas (supra) is a direct authority on the\tvery
\n\tprovisions  now\t before us.  Other cases cited are  on\tvery
\n\tdifferent legislative provisions.\n<\/p>\n
\t    We\tdo not think that the word substitution\t necessarily
\n\tor always connotes two severable steps, that is to say,\t one
\n\tof  repeal and another of a fresh enactment even if  it\t im-
\n\tplies  two steps.  Indeed, the natural meaning of  the\tword
\n\t“substitution”\tis  to indicate that the process  cannot  be
\n\tsplit  up  into two pieces like this.  If  the\tprocess\t de-
\n\tscribed as substitution fails, it is totally ineffective  so
\n\tas to leave intact what was sought
\n\t(1) [1963] Suppl. 2 S.C.R. 435.\n<\/p>\n
\t1010<\/span><\/p>\n
\tto  be\tdisplaced. That seems to us to be the  ordinary\t and
\n\tnatural\t meaning of the words “shall be substituted”.\tThis
\n\tpart  could not become effective without the assent  of\t the
\n\tGovernor-General.  The State Governor’s assent was  insuffi-
\n\tcient.\tIt could not be inferred that, what was intended was
\n\tthat, in case the substitution failed or proved ineffective,
\n\tsome  repeal,  not mentioned at all, was brought  about\t and
\n\tremained effective so as to create what may be described  as
\n\ta  vacuum in the statutory law on the subject  matter.\tPri-
\n\tmarily, the question is one of gathering the intent from the
\n\tuse of words in the enacting provision seen in the light  of
\n\tthe  procedure gone through.  Here, no intention to  reveal,
\n\twithout\t a  substitution,  is deducible.   In  other  words,
\n\tthere’\tcould be no repeal if substitution failed.  The\t two
\n\twere a part and parcel\tof  a single indivisible process and
\n\tnot bits of a disjointed operation.\n<\/p>\n
\t    Looking at the actual procedure which was gone  through,
\n\twe  find  that,\t even if the Governor had  assented  to\t the
\n\tsubstitution, yet the amendments would have been  effective,
\n\tas a piece of valid legislation, only when the assent of the
\n\tGovernor-General had also been accorded to it.\tIt could not
\n\tbe  said  that what the Legislature intended.  or  what\t the
\n\tGovernor had assented to consisted of a separate repeal\t and
\n\ta fresh enactment.  The two results were to follow from\t one
\n\tand  the  same effective Legislative process.\tThe  process
\n\thad, therefore, to be so viewed and interpreted.
\n\t    Some  help was sought to be derived by the\tcitation  of
\n\tB.N.  Tewari  v. Union of India & Ors.,(1) and the  case  of
\n\tFirm  A.T.B. Mehtab Majid & Co v. State of  Madras  (supra).
\n\tTewari’s  case (supra) related to the substitution  of\twhat
\n\twas  described as the “carry forward” rule contained in\t the
\n\tdepartmental instruction which was sought to be\t substituted
\n\tby a modified instruction declared invalid by the Court.  It
\n\twas  held that when the rule contained in the  modified\t in-
\n\tstruction  of 1955 was struck down the rule contained  in  a
\n\tdisplaced  instruction did not survive.\t Indeed, one of\t the
\n\targuments  there was that the original “carry forward”\trule
\n\tof  1952 was itself void for the very reason for  which\t the
\n\t“carry forward” rule, contained in the modified instructions
\n\tof 1955, had been struck down.\tEven the analogy of a merger
\n\tof  an order into another which was meant to be its  substi-
\n\ttute  could apply only where there is a valid  substitution.
\n\tSuch  a\t doctrine applies in a case where a  judgment  of  a
\n\tSubordinate  Court merges in the judgment of  the  Appellate
\n\tCourt or an order reviewed merges in the order by which\t the
\n\treview is granted.  Its application to a legislative process
\n\tmay  be possible only in cases of valid\t substitution.\t The
\n\tlegislative  intent and its effect is gathered, inter  alia,
\n\tfrom  the nature of the action of the authority which  func-
\n\ttions.\tIt is easier to impute an intention to an  executive
\n\trule making authority to repeal altogether in any event what
\n\tis sought to be displaced by another rule.  The cases  cited
\n\twere  of executive instructions.  We do not think that\tthey
\n\tcould  serve as useful guides in interpreting a\t Legislative
\n\tprovision  sought to be amended by a fresh  enactment.\t The
\n\tprocedure for enactment is far more elaborate and formal.  A
\n\trepeal\tand a displacement of a Legislative provision  by  a
\n\tfresh  enactment  can only take place after  that  elaborate
\n\tprocedure has been followed in toto. In the case of any rule
\n\tcontained in an executive instruction.\n<\/p>\n
\t(1) [1965] 2 S.C.R. 421.\n<\/p>\n
\t1011<\/span><\/p>\n
\ton  the other hand, the repeal as well as  displacement\t are
\n\tcapable of being achieved and inferred from a bare issue  of
\n\tfresh instructions on the same subject.\n<\/p>\n
\tIn  Mehtab  Majid & Co’s case (supra) a statutory  role\t was
\n\theld  not to have revived after it was sought to be  substi-
\n\ttuted  by another held to be invalid.  This was also a\tcase
\n\tin  which no elaborate legislative procedure was  prescribed
\n\tfor a repeal as it is in the case of statutory enactment  of
\n\tstatutes  by legislatures.  In every case, it is a  question
\n\tof intention to be gathered from the language as well as the
\n\tacts  of  the  rulemaking or  legislating  authority  in.the
\n\tcontext in which these occur.\n<\/p>\n
\tA  principle  of construction contained now in\ta  statutory
\n\tprovision made in England since 1850 has been:\n<\/p>\n
\t\t\t    “Where an Act passed after 1850  repeals
\n\t\t      wholly  or partially any former enactment\t and
\n\t\t      substitutes  provision  for  the\t   enactment
\n\t\t      repealed,\t the repealed enactment\t remains  in
\n\t\t      force  until the substituted  provisions\tcome
\n\t\t      into operation”.\n<\/p><\/blockquote>\n
\t\t\t    (See: Halsbury’s Laws of England,  Third
\n\t\t      Edn.  Vol.  36,\tP. 474; Craies\ton  “Statute
\n\t\t      Law”, 6th Edn. p.386).\n<\/p><\/blockquote>\n
\tAlthough, there is no corresponding provision in our General
\n\tClauses\t Acts,\tyet,  it shows that the mere  use  of  words
\n\tdenoting a substitution does not ipso facto or automatically
\n\trepeal a provision until the provision which is to take\t its
\n\tplace  becomes legally effective. We have,  as\t   explained
\n\tabove  reached the same conclusion by considering the  ordi-
\n\tnary and natural meaning of the term “substitution” when  it
\n\toccurs. without anything else in the language used or in the
\n\tcontext of it or in the surrounding facts and  circumstances
\n\tto  lead  to another inference. It means,  ordinarily,\tthat
\n\tunless the substituted provision is there to take its place,
\n\tin law and in effect, the pre-existing provision  continues.
\n\tThere is no question of a “revival”.\n<\/p>\n
\t   This\t question of interpretation was referred  separately
\n\tto  the\t Full Bench of the Bombay High Court  which  drew  a
\n\tdistinction between the two meanings of the word “substitut-
\n\ted”;  firstly,\twhere it  involved  a direction as  to\twhat
\n\twould  have to be removed or  repealed\tsimultaneously\twith
\n\tanother\t as to what was to be substituted, so as to  involve
\n\ttwo  directions\t and secondly\t  where\t the  “substitution”
\n\tmerely carried one direction to modify . It is difficult  to
\n\tsee  how  a single direction to -one  direction\t to  modify.
\n\tIt is difficult to see how a single direction to  substitute
\n\twould be effective without implying in it another to  remove
\n\t‘what was to be displaced.  Perhaps more simply and correct-
\n\tly  stated, the difference between two meanings of the\tword
\n\t“substituted”  is  one ‘where it stands\t for  two  separable
\n\tlegislative  process  and another where it  stands  for\t one
\n\ttotal  or  completed legislative  procedure,  including\t the
\n\tassent\tof the Governor-General, which would be\t covered  by
\n\tthe  words “shall be substituted”.  The Full Bench  came  to
\n\tthe  conclusion\t that,\tin the context in  which  the  words
\n\tdirecting substitution occur, they do not imply that in\t the
\n\tevent  of the failure of the amendment, taken as a  whole  a
\n\trepeal would survive.  To be able to “Survive” a repeal
\n\t1012<\/span>
\n\thad first to come into existence. In the situation before us
\n\tno repeal came into legal existence.\n<\/p>\n
\t    The real question for determination is always one of the
\n\tmeaning of words used in a purported enactment in a particu-
\n\tlar context.  We think that the Full Bench of the High Court
\n\tcorrectly  held\t that there was no repeal  of  the  existing
\n\tprovision  when\t “substitution”, by means of  an  amendment,
\n\tfailed\tto be effective.  It had also rightly  distinguished
\n\tsome  of  the cases cited before it on the ground  that,  in
\n\tthose cases, the process for substitution was interpreted to
\n\tnecessarily  imply  both a repeal and  re-enactment  out  of
\n\twhich only the repeal which took place had survived when the
\n\tre-enactment proved abortive.\n<\/p>\n
\t    On the question whether the particular goods existed  in
\n\tMadhya Pradesh at all at the time of the contracts, so\tthat
\n\tthe contract could be said to be referable to them, the High
\n\tCourt had observed:\n<\/p>\n
\t\t\t  ”  ….  the question was whether Oriental
\n\t\t      Mixture\twas present in the former  State  of
\n\t\t      Madhya Pradesh  when  the contracts of sale in
\n\t\t      respect  of Oriental Mixture were made by\t the
\n\t\t      applicant\t company. On this point,  which\t was
\n\t\t      purely a question of fact, the decision of the
\n\t\t      second appellate authority was final and\tthat
\n\t\t      decision was that Oriental Mixture in the form
\n\t\t      in which the contracts to sell that  commodity
\n\t\t      were  made was present in the State of  Madhya
\n\t\t      Pradesh\tat   the time when  those  contracts
\n\t\t      were made.  Therefore, that point was not open
\n\t\t      for decision before the Tribunal and it is not
\n\t\t      necessary\t to dilate on the facts relating  to
\n\t\t      that question”.\n<\/p><\/blockquote>\n
\t\t      It also said:\n<\/p><\/blockquote>\n
\t\t\t  “In  Commissioner  of Sales  Tax,  Eastern
\n\t\t      Division,\t Nagpur\t v. Hesenali  Adamji  &\t Co.<\/a>
\n\t\t      (1959)  (10  STC 297), there was\tno  evidence
\n\t\t      that  at the date when the agreement for\tsale
\n\t\t      was made, the particular logs delivered there-
\n\t\t      under  were in Central Provinces in the  shape
\n\t\t      of  logs at all, and  a  standing\t tree  which
\n\t\t      was in existence at the date of the  agreement
\n\t\t      of  sale and out of which the logs were  later
\n\t\t      on  prepared cannot be said to be the form  of
\n\t\t      the  commodity in respect of which the  agree-
\n\t\t      ment of sale was made.  The Tribunal relied on
\n\t\t      the  observations in the Judgment of  the\t Su-
\n\t\t      preme  Court  at\tpage 310 which\tare  to\t the
\n\t\t      effect that the goods must, at the date of the
\n\t\t      contract, be there in the taxing State in\t the
\n\t\t      form  in which they are agreed to be sold.  In
\n\t\t      that  case, the agreement of sale can be\tsaid
\n\t\t      to  be  in respect of those goods.   Here,  as
\n\t\t      found  by the second appellate authority,\t ore
\n\t\t      in the form of Oriental Mixture was present in
\n\t\t      the taxing State when contracts of sale in re-
\n\t\t      spect  of Oriental Mixture were made   by\t the
\n\t\t      Head Office of the applicant company”.<\/p><\/blockquote>\n
\t    After giving the findings set out above, on the question
\n\twhether\t the. goods existed in the State of  Madhya  Pradesh
\n\twhen they were sold and, whether the contracts were  refera-
\n\tble to these goods, the High  Court
\n\t1013<\/span>
\n\tproceeded  to consider the question whether  “Oriental\tMix-
\n\tture” itself had come into existence in Madhya Pradesh or at
\n\tthe  port  where the goods forming  the\t “Oriental  Mixture”
\n\tbecame mixed up in the process of unloading and\t transporta-
\n\ttion.\tApparently,  what the High  Court had meant  by\t its
\n\tearlier findings was not that the “Oriental Mixture” was  in
\n\texistence in Madhya Pradesh, but that the  ingredients which
\n\twent  into its composition existed in Madhya Pradesh at\t the
\n\ttime  when the contracts were made.  It had finally  reached
\n\tthe  conclusion\t that the Mixture itself was formed  at\t the
\n\tport where the ingredients  were unloaded.
\n\t    We are unable to accept the High Court’s reasoning that,
\n\twhile  the  goods which went into the composition   of\t the
\n\t“Oriental   Mixture”  existed  in Madhya  Pradesh  when\t the
\n\tcontracts  were made, yet, they were not taxable  in  Madhya
\n\tPradesh because’ the “Oriental Mixture” came into  existence
\n\tat the port.  In other words, it held that a mere mixture of
\n\tgoods,\teven  if  it occurs in\tthe  process  of  unloading,
\n\tconverts the goods, which existed in Madhya Pradesh and were
\n\ttransported  to\t the  port,  into  separately\tidentifiable
\n\tcommercial   commodity\tKnown  as  “Oriental  Mixture”.\t  As
\n\talready\t mentioned   above,  this term is not  used  in\t the
\n\tcontracts  but\tis  a term employed by the  firm  itself  to
\n\tindicate  the specifications contained in the  contracts  of
\n\tgoods  ordered.\t  It  is difficult to see  what\t process  of
\n\tmanufacture  is\t gone through so as to bring a new  category
\n\tor genus of commercial goods into existence at the port.
\n\t    The\t High  Court had relied on cases where\traw  tobacco
\n\tsubjected  to various processes, such as sprinkling of\tjag-
\n\tgery  juice  or water on it and allowing it to\tferment\t for
\n\tsome  time before cutting it up and packing it, was held  to
\n\tbecome\ta  new\tcommodity. These cases were:  The  State  of
\n\tMadras\tv. Bell Mark Tobacco Co. C)<\/a>; The State of Madras  v.
\n\tSwasthik  Tobacco Factory<\/a>(2); Anwarkhan Mehboob Co.  v.\t The
\n\tState of Bombay (Now Maharashtra) & Ors.<\/a> (3).
\n\t    Reliance  was also placed on behalf of the\tassessee  on
\n\tShaw Wallace & Co. Ltd. v. The State of Tamil Nadu<\/a>(4), where
\n\tit was held that goods were actually subjected to a  process
\n\tof manufacturing when chemical fertilisers and fillers\tlike
\n\t“China clay”, “gypsum”, and other ingredients, were mixed at
\n\ta “mixing works” of a company, by means of shovels, so as to
\n\tconform to a particular formula.  It was held there by\tthis
\n\tCourt that the resulting product was a commercially distinct
\n\tcommodity.  Several cases of manure mixtures are referred to
\n\tin the\tcase. Now,’ in the case of manure mixtures, made out
\n\tof  different ingredients, at a “mixing works”, it can\tper-
\n\thaps  be said that a chemical process is gone  through.\t  In
\n\tany case, the product which came  into\texistence was  known
\n\tand  sold as a separate commercial  commodity  in  the\tmar-
\n\tket.  It required a process to be gone through at what\twere
\n\tknown as mixing works of the company to convert it into that
\n\tcommodity.  On\tthe other hand, in the case  before  us,  it
\n\tseems to us that what has been “manufactured” by the  asses-
\n\tsee is the same “Oriental Mixture”\n<\/p>\n
\t  (1) (1967) 19 S.T.C. 129.\t  (2) (1966) 17 S.T.C. 316.
\n\t  (3) (1960) 11 S.T.C. 698.\t (4) (1976) 3 S.T.C. 522.\n<\/p>\n
\t1014<\/span><\/p>\n
\tonly  if  the term “manufacture” can be employed at  all  to
\n\tanything done by the assessee.\tWhat is to be determined  is
\n\twhether\t there\thas been the manufacture of  a\tnew  product
\n\twhich  has a separate commercially current name in the\tmar-
\n\tket. The mere giving of a new name by the seller to what  is
\n\treally\tthe same product is not the “manufacture” of  a\t new
\n\tproduct.  There is, it appears to us, no new process of\t the
\n\tmanufacture of goods at all by the assessee before us.
\n\t    Again, cases in which logs of wood were cut in order  to
\n\tconvert them into planks [e.g. Shaw Bros & Co. v. The  State
\n\tof  West  Bengal(1)] could be of no assistance in  the\tcase
\n\tbefore\tus.  That too could be a process  of  “manufacture”.
\n\tThe  High Court had also  made\ta passing reference to\tNil-
\n\tgiri  Ceylon Tea Supplying Co. v. The State of Bombay(2),  a
\n\tcase  decided  by the Bombay High  Court,  where   different
\n\tbrands of tea, purchased in bulk and “without application of
\n\tany  mechanical or chemical process”,  were mixed so  as  to
\n\tconform to a particular mixing formula, but this mixture was
\n\theld not to constitute a fresh commodity as neither process-
\n\ting  nor  alteration of the  ingredients of the tea  in\t any
\n\tmanner had taken place.\t We think that the similarity of the
\n\tprocess\t to which goods sold were subjected  in\t  this\tcase
\n\tseems to make the reasoning adopted in this case more  prop-
\n\terly applicable to the cases before us than any other  found
\n\tin other cases mentioned above.\n<\/p>\n
\t    In any event, we are unable to see how, without Subject-
\n\ting to some process the various grades of ores, mixed up  in
\n\tthe process of transporting, so as to conform to the  speci-
\n\tfications  given  in the  contract, could result  in  a\t new
\n\tcommercial product as it is known in the market. The  ingre-
\n\tdients\twere  not even shown to have got so mixed up  as  to
\n\tbecome\tinseparable.  As already mentioned above, this is  a
\n\tcase  in which the term “Oriental Mixture” was nothing\tmore
\n\tthan  a\t name given by the appellant company itself  to\t the
\n\tgoods  which  were  in the State of Madhya  Pradesh  at\t the
\n\trelevant  time and sent\t from  there specially in  order  to
\n\tsatisfy\t the  specifications given in  the   contracts.\t The
\n\tgoods  get mixed up in the process of unloading.   The\tmere
\n\tfact that the specifications in the contracts are  satisfied
\n\twhen  they  get\t mixed up is not a good\t enough\t ground\t for
\n\tholding\t that  a new product has  been\tmanufactured.\tThey
\n\tcould no more constitute a new commodity than parts of\tsome
\n\tmachinery sent by its manufacturer to a purchaser outside  a
\n\tState,\tso  that the buyer has to just fit  in\tthe  various
\n\tparts  together, becomes a new commodity when the parts\t are
\n\tfitted\tin.  The mere fitting up of parts or  a\t mixture  of
\n\tgoods, without employing any mechanical or chemical  process
\n\tof manufacture, could not, we think, result in a new commod-
\n\tity.\n<\/p>\n
\t    We, therefore, answer the following six questions before
\n\tthe High Court as follows:\n<\/p>\n
\t\t      Q. 1. Was the Tribunal right in holding  that,
\n\t\t      although\tthe assessment order was made  after
\n\t\t      the  Constitution\t of India came\tinto  force,
\n\t\t      Article  286  was\t thereby  not\tcontravened,
\n\t\t      because  such order related to a period  prior
\n\t\t      to 26.1.1950?\n<\/p><\/blockquote>\n
\t\t      (1)  (1963)  14 S.T.C. 878.    (2)  (1959)  10
\n\t\t      S.T.C. 500.\n<\/p><\/blockquote>\n
\t\t      1015<\/span><\/p>\n
\t\t      Ans. Yes,\t The provisions of Article 286\twere
\n\t\t      not contravened.\n<\/p><\/blockquote>\n
\t\t      Q.  2. Was the Tribunal right in holding\tthat
\n\t\t      Explanation (II) to Section 2(g) as was origi-
\n\t\t      nally embodied in the Sales Tax Act, 1947, got
\n\t\t      restored\ton the Statute-book because  of\t the
\n\t\t      unconstitutionality of the substituted  Expla-
\n\t\t      nation  enacted in the Sales  Tax\t (Amendment)
\n\t\t      Act, 1949 ?\n<\/p><\/blockquote>\n
\t\t      Ans.   There is no question of restoration  of
\n\t\t      unamended explanation (II) to Section 2(g)  as
\n\t\t      the  purported amendment itself did  not\ttake
\n\t\t      effect.  Hence, the unamended provision  stood
\n\t\t      as it was before the attempted amendment.\t The
\n\t\t      question\tframed rests on\t    a  misconception
\n\t\t      that  there was something to be restored.\t  As
\n\t\t      nothing  was taken away, nothing was there  to
\n\t\t      be  restored. And, there was nothing added  or
\n\t\t      substituted.\n<\/p><\/blockquote>\n
\t\t      Q. 3. Does the Tribunal’s decision not contra-
\n\t\t      dict the true meaning of the language “sale of
\n\t\t      any  goods which are actually in\tthe  Central
\n\t\t      Provinces\t and  Berar  at the  time  when\t the
\n\t\t      contract of sale as     defined in that Act in
\n\t\t      respect  thereof\tis  made”,  as\toccuring  in
\n\t\t      Explanation (II) to section 2(g) of the  Sales
\n\t\t      Tax  Act,\t with  reference  to   “in   respect
\n\t\t      thereof”\tis reference to “specified  or\tear-
\n\t\t      marked”  goods which are actually\t present  in
\n\t\t      the taxing State when the contracts are made ?
\n\t\t       Ans.   This is a question of fact as to\twhat
\n\t\t      contracts specify and whether those goods were
\n\t\t      taxed,  on which the finding already  recorded
\n\t\t      are  enough  to  dispose it  off\tagainst\t the
\n\t\t      assessee.\n<\/p><\/blockquote>\n
\t\t       Q. 4. In any case, was the Tribunal right  in
\n\t\t      its interpretation, application and use of the
\n\t\t      provisions  of  original Explanation  (II)  to
\n\t\t      section 2(g) of the Sales Tax Act even as they
\n\t\t      were ?\n<\/p><\/blockquote>\n
\t\t      Ans.  Yes.\n<\/p><\/blockquote>\n
\t\t      Q.  5. Was the Tribunal right in assuming\t the
\n\t\t      law to be that the existence of ingredients of
\n\t\t      ores  in the taxing State in  question,  which
\n\t\t      were  sufficient if and when mixed in the\t due
\n\t\t      proportion for yielding different varieties of
\n\t\t      standard mixtures contracted for by the  over-
\n\t\t      seas buyers, was in law enough to attract\t the
\n\t\t      tax ?\n<\/p><\/blockquote>\n
\t\t      Ans.  There  is no question of  assuming\tany-
\n\t\t      thing.\tThe process which was  revealed\t and
\n\t\t      findings of fact given on it show that it\t did
\n\t\t      not result in the production of a new commodi-
\n\t\t      ty  at the port. It was only manganese ore  of
\n\t\t      different\t grades\t which was unloaded  at\t the
\n\t\t      port and gives the name of “Oriental  Mixture”
\n\t\t      because the ingredients got mixed up automati-
\n\t\t      cally in transportation and satisfied  certain
\n\t\t      specifications.  No new commodity was produced
\n\t\t      in this process.\n<\/p><\/blockquote>\n
\t\t      Q.  6. Was the Tribunal right in holding\tthat
\n\t\t      the Sales Tax Authorities\t had found as a fact
\n\t\t      that the goods consisting of oriental mixture
\n\t\t      1016<\/span>
\n\t\t      were  in\tthe Madhya Pradesh  State  when\t the
\n\t\t      contracts in respect of these goods were\tmade
\n\t\t      ?\n<\/p><\/blockquote>\n
\tAns.  Yes.\n<\/p>\n
\t    Before  we\tpart with the case we may observe  that\t the
\n\tquestions  could have been much more lucidly and simply\t and
\n\tless  culmsily stated.\n<\/p>\n
\t    The\t appeals of the assessee company against  the  deci-
\n\tsions  of the Full Bench are dismissed.\t The appeals of\t the
\n\tState  of Maharashtra against the judgment of  the  Division
\n\tBench are allowed.  Parties will hear their own costs,
\n\tV.P.S.\n<\/p>\n
\tAppeals dismissed.\n<\/p>\n
\t1017<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Maharashtra Etc vs The Central Provinces Manganese … on 29 October, 1976 Equivalent citations: 1977 AIR 879, 1977 SCR (1)1002 Author: M H Beg Bench: Beg, M. Hameedullah PETITIONER: STATE OF MAHARASHTRA ETC. Vs. RESPONDENT: THE CENTRAL PROVINCES MANGANESE ORE CO. LTD. DATE OF JUDGMENT29\/10\/1976 BENCH: BEG, M. HAMEEDULLAH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-207326","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Maharashtra Etc vs The Central Provinces Manganese ... on 29 October, 1976 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-etc-vs-the-central-provinces-manganese-on-29-october-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Maharashtra Etc vs The Central Provinces Manganese ... on 29 October, 1976 - 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