K. Shivashankar Bhat, J.:— The petitioner buys raw tamarind seeds. Thereafter the outer layer is removed and the seeds are “decorticated”. According to the petitioner, there is no manufacturing activity involved and both the goods are the same. Since the petitioner purchases the tamarind from unregistered dealers and therefore, no tax was levied at the time of purchase by the petitioner, the sales tax department has taken the view that there is a manufacturing activity involved and the purchased articles were consumed in the manufacture of tamarind seeds which are sold by the petitioner and therefore, purchase tax was leviable under section 6 of the Karnataka Sales Tax Act, 1957 (“the Act” for short). The articles allegedly produced by the petitioner is referred as tamarind white pappu and white powder, from black tamarind seeds. The short question is, whether there was any manufacturing activity at all and if so, certainly section 6 of the Act would be attracted.

2. Learned counsel for the petitioner contended that dehusking of tamarind seeds into taramind pappu does not result in the manufacture of any other product and any by-product. The purpose of the tamarind seed and that of the tamarind pappu is to provide starch. Qualitatively, both are the same goods whether the test of chemical analysis is applied or the commercial use is applied. Learned Government Advocate, on the other hand, relied on a decision of this Court in S.T.R.P Nos. 35 and 36 of 1970, disposed of on May 27, 1971, wherein it was held that tamarind pappu is a different commodity from tamarind seed. This was in connection with the interpretation of item 14 of the Third Schedule to the Act which referred to only “tamarind seeds”. This Court followed the decision of the Supreme Court in State of Travancore-Cochin v. Shanmugha Vilas Cashew-nut Factory, [1953] 4 STC 205; AIR 1953 SC 333. Learned counsel for the petitioner pointed out that there have been number of decisions subsequent to the aforesaid decision of the Supreme Court clarifying the position and laying down the test to be applied.

3. In Deputy Commissioner of Sales Tax v. Pio Food Packers, [1980] 46 STC 63, the Supreme Court was concerned with pineapple slices sold in sealed cans. The question was whether there was consumption of pineapple fruit for the purpose of manufacturing pineapple slices sold in sealed cans. The finding was that there was no manufacturing activity at all. The Supreme Court was considering the provision under section 5A of the Kerala General Sales Tax Act which is almost similar to the provision under section 6 of the Act. At page 65, the Supreme Court observed:

“The goods purchased should be consumed, the consumption should be in the process of manufacture, and the result must be the manufacture of other goods. There are several criteria for determining whether a commodity is consumed in the manufacture of another. The generally prevalent test is whether the article produced is regarded in the trade, by those who deal in it, as distinct in identity from the commodity involved in its manufacture. Commonly, manufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the 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 that a manufacture can be said to take place. Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining its original identity.”

4. At page 66, the Supreme Court referred to a decision of the U.S Supreme Court which pointed out that, 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 necessary and there must be transformation.

5. Since the pineapple slices continued to possess its original identity notwithstanding the removal of inedible portion, it was held that the slicing and canning it with addition of sugar to preserve it, would not alter the character of pineapple fruit and there was no manufacture involved as the fruit was not consumed for the purpose of manufacture.

6. The same principle was applied by a Bench of the Madras High Court in K.S Shahul Hameed v. State Of Tamil Nadu, [1992] 84 STC 466. It was held that the conversion of turmeric purchased from the agriculturists into powder does not involve any manufacturing process and that powdered turmeric is only a changed form of turmeric purchased by the assessee. The test was again reiterated in State of Orissa v. Titaghur Paper Mills Co. Ltd., [1985] 60 STC 213. The Supreme Court observed:

“The question in both those cases was whether sawing of planks and chopping of timber into firewood amounted to manufacture so as to make the assessee liable to pay sales tax on the manufactured goods. This is a different question from that to which we have to address ourselves. We may, however, point out that even where the question is whether a certain process has resulted in a manufacture, the resultant product must be a different commercial commodity and merely because certain articles are known by different names, it does not mean that they are different commercial commodities if in fact they are merely different forms of the same commodity.”

7. In Reliable Rocks Builders and Suppliers v. State of Karnataka, [1982] 49 STC 110, a Bench of this Court held that breaking of boulders into jelly does not involve any manufacturing process and therefore, the process does not warrant applicability of section 6 of the Act. The earlier decision of the Supreme Court in Ganesh Prasad Dixit v. Commissioner Of Sales Tax, Madhya Pradesh , [1969] 24 STC 343; (1969) 1 SCC 492 : AIR 1969 SC 1276 was distinguished and the Bench observed that the court was bound by the later decision of the Supreme Court in Pio Food Packers case, [1980] 46 STC 63. Mr. Narayana pointed out that in the case of cashew-nut and cashew kernel, it stands on a different footing. In State of Travancore-Cochin v. Shanmugha Vilas Cashew-nut Factory, [1953] 4 STC 205 (SC); AIR 1953 SC 333, the process of converting the cashew into cashew kernel was described at page 249 of STC (354 of AIR):

“The raw cashew-nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew-nut oil and edible cashew-nut kernels, are obtained. It follows, therefore, that the raw cashew-nut is consumed by the respondents in the sense I have mentioned.”

8. In the instant case, there is no such consumption of the tamarind seed at all except that tamarind pappu, no other product comes out in the process of dehusking. This is nothing but a change in the form.

9. Learned Government Advocate then relied on the decision of the Supreme Court in State of Karnataka v. Raghurama Shetty, [1981] 47 STC 369 wherein it was held that rice was a distinct commodity from paddy and that the dehusking of paddy into rice involved manufacturing process and the situation attracts the provisions of section 6 of the Act.

10. Only because dehusking is involved in the case of paddy when rice is brought out, we cannot apply the said decision to the case of tamarind seeds. It is the quality of the article in question that should be seen. The paddy as an article of commerce, has several utilities apart from its being the basis for producing rice. We may also refer to the fact that rice bran oil is one of the products that could be produced from paddy. Rice is an entirely different, article both from the point of view of consumption and from the point of view of other utilities when compared to paddy. But here, the situation seems to be altogether different. The people who are dealing with the subject-matter have definitely expressed their opinion that whether prior to the husking or after dehusking it is the same article.

11. Petitioner's counsel relied on the analytical report dated March 2, 1990, issued by the Central Food Technological Research Institute. It is certified that both the tamarind core kernel and tamarind dehusked kernel contain starch. To the same effect is the certificate of analysis dated February 24, 1990, issued by Devi & Co., which is a Government of India approved inspection agency. This certificate states that “the starch made out of these seeds is used in manufacturing and starching of woollen blankets and cloths, etc. The starch made out of seeds with shell is half white in colour whereas the starch made out by seeds without shell is purely white in colour. However the adhesive quality remains same in starch made out of these seeds (with shell or without shell)”. There is another certificate dated February 26, 1990, issued by another similar organisation called Essen & Co. This certificate also points out that the only difference between the two kinds of seeds is the colour of the starch. Therefore, it is clear that qualitatively, both are identical and dehusking is only a convenient mode, obviously to give a better colour to the starch produced out of the seeds. A mere change of form, as the Supreme Court held, cannot alter the character of the article. We may also point out that in Titaghur Paper Mills case, [1985] 60 STC 213 (SC), the earlier decision of the Supreme Court in Ganesh Trading Co. case, [1973] 32 STC 623 was distinguished at page 264.

12. It was then pointed out by the learned Government Advocate that the petitioner has been producing powder out of the tamarind seeds and this would certainly result in manufacturing the powder from the seeds. Learned counsel for the petitioner disputes this factual aspect of the case. This is normally, a matter for the authorities to consider in the light of the principles and observations made above.

13. The Government Advocate also relied on the decision of the Kerala High Court in Dy. Commr. Of Salestax v. Sulaiman, [1986] 61 STC 331 wherein it was held that bone-meal manufactured as a fertilizer out of the raw bones purchased involved a process of manufacture even though the process of manufacture was only the crushing and powdering such raw bones. As already observed by us, the answer would mainly depend upon the article in question. The Kerala High Court found that the bone-meal manufactured out of raw bones has got a different commercial identity as fertilizer and therefore conclusion was inevitable that there was a manufacturing process involved in the said case. It was then contended that the seeds were powdered and sold. The question is whether the powder is the result of any manufacturing activity. The principle should be governed by the decision of the Madras High Court which we have already referred to (K.S Shahul Hameed v. State Of Tamil Nadu, [1992] 84 STC 466). Following the aforesaid decision, we hold that the conversion of the seeds into powder form also does not result in the manufacture of a new article.

14. For the reasons stated above, we allow this revision petition. The order of assessment made in respect of tamarind seeds by applying section 6 of the Act is set aside. The assessing authority shall modify the order of assessment in the light of the observations made herein.

15. Petition allowed.