Tiki Enterprises and another vs Commissioner of Commercial Tax, M.P., Indore

By this petition under Article 226 of the Constitution of India, the petitioner seeks to challenge correctness, validity and propriety of the order dated 2-5-2008 passed by the Commissioner, Commercial Tax Madhya Pradesh, Indore u/s 70 of Madhya Pradesh Value Added Tax Act, 2002, (hereinafter referred to as "the Act" for short) wherein he has held that Emulsified Bitumen would not fall under Entry No. 16 of Schedule II Part 2 appended to the Act.

The petitioners, who are manufacturer of ''Emulsified Bitumen'', being aggrieved by the recovery of the VAT @ 12.5% made an application to the Commissioner of Commercial Tax, Madhya Pradesh, Indore that ''Emulsified Bitumen'' falls under the Entry 16 Part 2 Schedule II commonly known as "Bitumen and Coal Tar", and as such, the product manufactured by the petitioners should also be taxed at rate of 4% and not @ 12.5%.

After hearing the parties, learned Commissioner came to the conclusion that Bitumen and Coal Tar are different than Emulsified Bitumen, and therefore, the same would not fall under Entry No. 16 of Schedule II Part 2, but would fall under residuary entry.

Shri Choudhary, Learned Counsel for the petitioner, after taking us through a number of decisions and the research work, submitted that Emulsified Bitumen, being a part or product of Bitumen itself, cannot be classified under residuary Entry. It is submitted by him that use of Bitumen and Emulsified Bitumen is the same and as Emulsified Bitumen is made out of or is a product of Bitumen with no physical or chemical changes in it, the authority was not justified in holding that ''Emulsified Bitumen'' would not fall under Entry No. 16.

Shri Kutumbale, Learned Counsel for the State, on the other hand, submitted that Bitumen and Emulsified Bitumen are commercially different articles, though Bitumen when is mixed with emulsifier then only it starts absorbing water and is used for laying of road. The authority was justified in holding that Emulsified Bitumen would not fall under Entry No. 16.

Undisputedly, Bitumen is a by product of the petroleum. It also cannot be disputed before us that Bitumen in its original form is a solid lump, which can be used for laying road or for any other purpose, after it is heated to 150�C. Undisputedly, even from the research work on which reliance is placed, it would clearly appear that when the Bitumen is heated between 150�C and 180�C at which stage, it can, be mixed with other road component, such as mineral aggregate, in a method known as the application of a hot mix. Working with Bitumen at these temperatures is very dangerous, with a risk of serious burns. It also requires costly equipment for the heating, storage and application of Bitumen, which must be performed on site. Bitumen that has been mixed with petroleum solvents is called cut-back Bitumen. The solvents, usually kerosene, play no part in the function of the binder and are costly. The solvents act to decrease the viscosity of the Bitumen making it more workable. From the research work, it would clearly appear that the Bitumen is converted into Bitumen Emulsified with the help and assistance of emulsifier and a new product comes into existence.

In the matter of Chowgule and Company Private Limited vs. Union of India and others, (1981) 47 STC 124, the Supreme Court has held that:-

The test that is required to be applied is : does the processing of the original commodity bring into existence a commercially different and distinct commodity?

In the matter of State of Orissa vs. Titaghur Paper Mills Company Limited, (1985) 60 STC 213, the Supreme Court observed :-

Timber and sized and dressed logs are one and the same commercial commodity. Logs are nothing more than wood cut up or sawn and would be timber. Planks beams and rafters would also be timber.

We are referring to these two judgments to make the things easy that basic question for application of very Entry would be that the product or by product of the article/commodity gets in the Entry contains the same physical and chemical quality or it changes itself and brings out as a different commodity commonly and differently known in the commercial world.

In the matter of Titaghur Paper Mills'' case (supra), their Lordships had considered the question of timber, whether that obtained the sized and dressed logs, timber would not change in the basic quality. Timber would continue to be timber.

In the matter of Commissioner of Sales Tax, UP vs. Lal Kunwa Stone Crusher (P.) Limited, (2000) 118 STC 287 and Divisional Deputy Commissioner of Sales Tax and another vs. Bherhaghat Mineral Industries, (2000) 120 STC 205, the Supreme Court was of the opinion that entry ''stone'' is wide enough to include its various forms, such as boulders, small stones, chips etc. In the said matter, the Supreme Court was of the opinion that ''stone'' even after it is crushed or broken, would continue to be ''stone'' though it may be named as ''boulder'', "small stone", ''chips'', ''gitti'' etc.

Reliance was placed upon a judgment of the Supreme Court in the matter of Porritts and Spencer (Asia) Limited vs. State of Haryana, (1978) 42 STC 433, to contend that "dryer felts" which are commonly used as absorbents held to be fall in Entry known as ''textiles''. Whether, in the present case, "Emulsified Bitumen" should also fall within the larger Entry commonly known as "Bitumen and Coal Tar"?

In the matter of Porritts (supra), the question before the Supreme Court was that "dryer felts" made out of cotton or woolen yarn by process of weaving and commonly used as absorbents of moisture, should the article fall within the Entry known as ''textile''? Their Lordships were of the opinion that "dryer felts" made out of cotton or woolen yarn by process of weaving according to the wrap and woof pattern and commonly used as absorbents of moisture in paper manufacturing units would fall within the ordinary and common parlance meaning of the word ''textiles''.

In the present matter, undisputedly, Bitumen if not mixed with emulsifier, then, as discussed above, its use would be difficult and dangerous. It is not in dispute before us that Bitumen in its original form would not absorb or mix with water but after emulsifier is fired upon the raw Bitumen, then it is clear that quality of absorbing or mixing in the water would come into being. The quality of a new product is changed and it is commonly and commercially known as a different commodity, then it cannot be said that the new produce would fall in original Entry. Undisputedly, Bitumen and Emulsified Bitumen are two different commodities in the commercial world, though use of the said articles some times may be common, but some times, even the cost of the use as would also require to be considered to vary and use of the new product which is commercially different economically to some extent.

In the present matter, in our opinion, the learned Commissioner, Commercial Tax, was justified in holding that ''Emulsified Bitumen'' would not fall in Entry No. 16.

We find no reasons to interfere in the matter the petition is dismissed.

C. c. as per rules.