DEPUTY COMMISSIONER, SALES TAX (LAW) BOARD OF REVENUE (TAXES) ERNAKULAM v. PIO FOOD PACKERS

Citation: [1980] 3 S.C.R. 1271

Court: Supreme Court of India

Bench: P.N. BHAGWATI, V.D. TULZAPURKAR, R.S. PATHAK

Case summary

The additional sweetness in the canned pineapple arises from the sugar added as a preservative. The High Court is right in the view taken -~~ F \ The appeal fails and is dismissed with costs.

Judgment text

DEPUTY COMMISSIONER, SALES TAX (LAW) BOARD OF A, REVENUE (TAXES) ERNAKULAM v. PIO FOOD PACKERS May 9, 1980 [P. N. BHAGWATI, V· D. TuLZAPURKAR AND R. S. PATHAK, JJ. ] Kera/a General Sales Tax Act, Section 5-A(l)(a) "conmmes such goods in the malrufacture of other goods for sale or otherwise", meaning of-ExigibiliJy to tax of pineapple ffuit. when processed into slices for the purpose of being IO! d in sealed cans. ·-.. ; Tho respondent assessee, Pio Food Packers carries on the business of manu- . facturing and selling canned fruit besides other products. The Pineapple purchased by the assessee is washed and then the inedible portion, tbe end crown, skin· and inner core are removed, thereafter the fruit is, sliced and the slices are filled in cans, sugar is added as a preservative, the cans are sealed under temperature and then put in boiling water for sterilisation.

In its return for the year 1973-74 under the Kerala General Sales Tax Act, 1963 the assessee claimed that a turnover of Rs. 3,84,138-89 representing the purchase of pineapple fruit was not covered by Section 5-A(l)(b) of the Act. It was asserted that the pineapple was converted into pineapple slices, pineapple jam, pineapple squash and pineapple juice. The assessee maintained that by the conversion ·Of pineapple fruit into its products no new commodity was created and it was erroneous to say that there was a consumption of pineapple E K fruit "in the manufacture of" these goods. The Sales Tax Officer did not accept the contention and completed the assessment on the finding that a manufacturing process was involved and that, therefore, the case fell within s. 5-A (t):(a). In revision before tbe Sales Ta:ii Appellate Tribunal, the assessee c0nceded that pineapple jam and pineapple squash would ·be covered by s. 5-A(l)(a), and in regard to pineapple juice the Tribunal found that s.

S-l(a) was attracted. The only question which remained was whether the prepara- F lion of pineapple slices fall within s. 5-A(l) (a). On that question two mem- ' bers of the Tribunal. found in favour of the assessee, and the third member fDund. in favour of the Revenue. The Revenue then applied in revision to the High Court and the High Court, has by its judgment dated 24th January, 1978, . maintained the order of the Tribunal. Dismissing the appeal, by special leave, the court HEID : 1. Wiien pineapple fruit is processed into pineapple slices for. the purpose of being sold in sealed cans, there is no . f ! llllluf&cture, and the result must be the manufacture of other goods. - : ,;.. There are several criteria for determining whether a commo rate identity either. The distinction in the mind of the consumer arises nOt from any difference in tho essential identity of the two, but is derived from the mere fOim in which the fruit is desired. (1277 II-CJ I SALES TAX BOARD v.

PIO FOOD PACKEfS (Pathak, /. ) 1273 $. Claiise (l)(a) of Section 5-A of the Kerala General Sales Tax Act, •peaj PACKERS (P11thak, !. ) 12 7 5 ,, commerciiilly it can no longer be regarded as the original commodity but instead is recognised as a new and distjnct article that maa1$cture can be said to take place. Where there is no ·essential differelJCll in identity between the original commodity and 'the processed article it is not possible to say that one commodity has been COllSUIIled in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining ... . . i1S original identity. A Jarge number of cases has been placed before us . by the parties, and in each of them the same principle has been applied : ~ r1Joes the processing of the Original commodity bring into existence . 'j a commercially different and distinct article ?

Some of the cases · where it was held by this Court that a different commercial article had come into existence include Anwarkhan Mehboob Co. v. The State of Bombay and Others(') (where raw tobacco was manufactured into bidi patti), A Hajee Abdul Shukoor and Co. v. The State of Madras(') (raw hides and skins constituted a different commodity from dressed hides and skins with different physical properties), The State of Madras v. Swasthik Tobacco Factory(') (raw tobacco manufactured into chewing tobacco) and Ganesh Trading Co. Kamal v. State of Haryana and Another,(') (paddy dehusked into rice). On the other side, cases where this Caurt has held that although the original commodity has undergone a degree of process- )( ing it has not lost its original identity include Tungabhadra Industril! s Ltd. , Kurnool v. Commercial Tax Officer, Kurnoo/(5) (where hydrogenated groundnut oil was regarded as groundnut oil) and Commissioner of Sales Tax, U. P. ; Lucknow v.

Harbilas Rai and 6 sons( ) (where bristles plucked from pigs, boiled, washed with soap and other chemicals and sorted out in bundles according. to their , size and colour were regarded as remaining the same commercial \commodity, pigs bristles). In the present case, there is no essential difference ~tween pineapple fruit and the canned pineapple slices. The dealer and the consumer regard both as pineapple. The only difference is that the sliced pineapple is .! I presentation of fruit in a more convenient form and by reason of being canned it is capable of storage without (! ) (1960) II S. :r· C· 698. (2) (1964) 15 S. T. C. 719· (3) (1966) 17 S. T. C. 316. (4) (1973) 32 S. T. C. 623, (S) (1960) 11 S. T. C. 827. (6) (1968) 21 S. T. C. 17. ~. . ,_,,,,. ;. ;'~ 1276 SUPREME C(1t1RT REPORTS [1980) 3 S. C. R. spoiling. The additional sweetness in the canned pineapple arises from the sugar added as a preservative.

On a total impression, it seems to us, the pineapple slices must be held to possess the same identity as the original pineapple fruit. While on the point, we may refer to East Texas Motor Freight Lines v. Frozen Food Express,(! ) where the U. S. Supreme Court T held that dressed and frozen chicken was not a commercially distinct article from the original chicken. It was pointed out : "Killing, dressed and freezing a chicken is certainly a change in the commodity. But it is no more drastic a change than the chang6 which takes place in milk from pasturising, homogenizing, adding vitamin concentrates, standardising and '""\ r bottling. " ". It was also observed: " .................. there is hardly less difference between cotton in the field and cotton at the gin or in the bale 01 between cottonseed in the field and cottons~ at the gin, than between a chicken in the pen and one that is dressed.

The ginned and baled cotton and the cottonseed, as well as the dressed chicken, have gone through a processing stage But neither has been "manufactured" in the normal sense of the word. " \ Referring to /ifntheusercBusch Brewing Association v. United 2 States( ) the Court said: "Manufacture implies a change but every change is not manufacture and yet every change in an article is the result · of treatment, labour and manipulation. But something more is neci,ssary. . . . . . . . . . . . . . . . . . There must be transformation; a new and different article must emerge, having a l distinctive name, character or use. " And further: ·G "At some point processing and manufacturing will merge. But where the commodity retains a continuing substantial identity through tJhe processingj stage we cannot say that it has been "manufactured". " ~~ The comment applies fully in the case before us. Although a ft degree of processing is involved in preparing pineapple slices from r (! ) 100 L. Ed. 917.

(2) 52 L. Ed. 336-338. \ SALES TAX BOARD v, PIO FOOD PACKERS (Pathak,!. ) 1277 the original fruit, the commodity continues . to possess its original identity, notwitibstanding the removal of inedible portions, the slicing .... and thereafter canning it on adding sugar to preserve it. It is contended fur the Revenue that pineapple slices have a higher price in the • madet than the original fruit and that implies that the slices constitute a different commercial commodjty. The higher price, it seems to us, is I occasioned only because of the labour put into making the fruit more "" readily consumable and because of the can employed . to contain it. It . ,. . is notl as if the higher price is claimed because it is a different commercial commodity.

It is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a can of pineapple 'Jsf"Ces he has in mind something very different from fresh pineapple fruit Here again, the distinction in the mind of the consumer arises not from any difference in the essential identity of the two, bnt is derived from the mere form in which the fruit is desired. Learned counsel for the Revenue contends that even if no ·manufacturing process is involved, the case still falls within. s. 5~A(1) (a) of the Kerala General Sales Tax Act, because the statutory provision speaks not only of goods consumed in the manufacture of other goods for slile bnt also goods consumed otherwise. There is a fallacy in the subuiission. The clause, truly read, speaks of goods consumed in the m8nufacture of other goods for sale or goods consumed in the manu- )( facture of other goods for purposes other than sale.

In the result, we hold that when pineapple fruit is processed into pineapple slices for the purpose of being sold in sealed cans there is no consumption of the original pineapple fruit for the purpose of manufacture. The case does not fall within s. 5-A(l)(a) of the Kerala General Sales Tax Act. The High Court is right in the view taken -~~ F \ The appeal fails and is dismissed with costs. S. R. Appeal dismissed. _)(