The Judgment of the Court was delivered by

Jagannadha Rao, C.J:— The Writ Petition has been referred to a Full Bench by an order dated 30-7-1990 passed by a Division Bench of this Court. The issue relates to Entry 27 of the first Schedule to the Kerala General Sales Tax Act, 1963 which imposes sales tax at the rate of 8% on “spices (including chillies and coriander seeds) not falling under any other items in the schedule”. The Division Bench pointed out that a clarification is necessary as to which of the decisions, viz., Ambika Provision Stores v. State Of Kerala (1987 (2) KLT 99) and Dy. Commissioner Of Sales Tax v. M/S. Rani Food Products (1987 (2) KLT 1033) is correct and as to the correctness of the order dated 13-9-1988 passed on review in Ravi Food Products case.

2. It is initially necessary to state the facts of the case before us. The Writ petitioner is a partnershsip firm dealing in pickles and other items like chilly powdef, coriander powder, turmeric powder, sambar powder etc. The firm purchases chillies from the local market paying the first point sales tax at 8% and it then produces chillie powder from such tax-borne stocks. As the petitioner had doubts about the liability to tax in respect of the sales of chillie powder, the petitioner applied under S. 59-A on 1-7-1982 as per Ext. P1 for clarification of his doubts on two questions as follows:

“(1): Whether the sale of chilly powder produced out of chillies which has suffered tax under items 27 of the first schedule of the Kerala General Sales Tax Act, is again exigible to tax under the said Act, and if so at what rate?

(ii): Whether the sale of curry powder made by blending of different spices powders is taxable if the spices used for making the curry powders have suffered tax under schedule 1 of the Kerala General Sales Tax Act and if so, at what rate?”

3. In other words, the questions were in two parts (1) Are chilly powder and chilly, (already taxed) different commercial commodities and if so, is chilly powder also ‘spices’ taxable under entry 27 of schedule 1, at 8%, and (2) if powders from different spices are mixed, is the resultant substance different from the principal substances (already taxed) and if so, is the mixture — which is called, curry powder — taxable under entry 27 of the first Schedule at 8%? In reply to this query, the Government clarified to the petitioner by way of Ext. P2 dated 15-1-1983 as follows:

“I am to invite your attention to the reference cited and to inform you that chilly powder produced out of chillies and curry powder made by blending various spices are again exigible to tax at the rate of 8% irrespective of the fact that tax has already been levied on chillies and spices out of which chilly powder and curry powder are produced”.

The effect of the clarification was to say that (1) chillie powder produced out of chillies is a different commercial commodity, the sale of which is taxable and further, that it is again ‘spices’ exigible to tax at 8% as per entry 27 of I schedule, and (2) that “curry powder” which is a mixture of two or more powders produced from ‘spices’, is a different commercial commodity liable to tax and that it is again ‘spices’ exigible at 8% as per entry 27 of I schedule. It is this Ext. P2 clarification that is questioned the Writ Petition. These are the two questions that arise for consideration in this reference.

Sl. No. Description of Article Point of levy Rate of tax 27. Spices (including chillies and corriander seed) not falling under any other items in this Schedule. At the point of first sale in the State by a dealer who is liable to tax under Section 5. 8

4. We shall initially advert to the points decided in the two Division Bench rulings of this court. In Ambika Provision Stores v. State Of Kerala (1987 (2) KLT 99), the Division Bench was dealing with ‘chillie powder’ and ‘corrianderpowder’ derived from chillies and corriander respectively purchased after levy of tax at 8% under entry 27 in Schedule 1. It was contended there that both chillies and corriander which had suffered tax, do not lose their identity and do not become commercially different commodities justifying fresh imposition of tax when these respective commodities are turned into powder and the powder is sold. The said contention of the assessee was rejected and it was held that when chillie powder or corriander powder was produced from chilly or corriander respectively, a “new and distinct commodity emerged out of manufacturing process” and that the said commodities are taxable again under entry 27 at 8%. The Bench followed Sri Sidhi Vinayaka Coconut & Co. v. State of Andhra Pradesh ((1974) 34 STC 103 (SC)), Ganesh Trading Co. v. State of Haryana ((1973) 32 STC 623 (SC) and the Full Bench decision of this Court in Achamma Sebastian v. State of Kerala (1967 KLT 832 (FB)).

5. The question then arose in Dy. Commissioner Of Sales Tax v. M/S. Rani Food Products (1987 (2) KLT 1033) before a Division Bench as to the taxability of sambar powder, meat masala, pickle powder etc. in the context of entry 27 of Schedule 1. The Revenue contended that each of these items—which was a mixture of powders derived from two other commodities which were ‘spices’,-were again ‘spices’ exigible to tax at 8% under entry 27. The Tribunal held, while accepting the case of the Revenue that the commodities covered by the powders were new commodities exigible to sales tax. It however, held that the new commodities, ie., the mixtures of powders were not spices falling under entry 27 but could be taxed at 4% multipoint under general goods. The Division Bench took the view that the mixtures of powders were new commodities different in flavour from the original commodities. Even if chillies and corriander seeds were taxable at 8%, the powders thereof are not to be treated as spices and cannot fall under entry 27. They could be taxed only at 4% as general goods. No reference was made to Ambika Provision Stores' case. There was a review petition in that case and it was clarified by order dated 13-9-1988, adverting to Ambika Provision Stores' case, as follows:—

“In an earlier decision in TRC No. 78 of 1987 (Ambika Provision Stores v. State Of Kerala, 1987 (2) KLT 99) this Court held that when chillies are turned into chilly powder and corriander into corriander powder, the original commodities underwent a change giving rise to chilly powder and corriander powder, and they can no longer be regarded as chilly and corriander, but are two new commercially different commodities taxable again under entry 27 of the First Schedule of the Act at 8 percent. We had not taken any contrary view in the present case and in the context of considering the character of the commodities, we have only stated that chilly and corriander seeds, when powdered and mixed, would not be spices' under item 27. The observation thereof be read and understood thus; chillies and corriander seeds, when powdered and mixed, do not fall under item 27”.

6. It was at that stage that the present Writ Petition came up before the Division Bench which referred the matter to a Full Bench. The Division Bench stated while making the reference, after referring to the above order in review petition as follows:—

“If in the light of the finding that chillie powder is different from chillies, will chillie powder still come under item 27 is not free from doubt.

It is desirable that an authoritative pronouncement is given by a larger Bench.”

7. That is how the matter has come before this Full Bench.

8. The point naturally arises whether the decision in Ambika Provision Stores' case is correctly decided and also whether there is any conflict between that case and the decision in Rani Food Products' case and the order of review in the latter case.

9. As the entire matter is open, we shall examine the question untrammelled by the above said two judgments of this Court.

10. Recently, this very Full Bench had occasion to consider the various principles of interpretation applicable to words and entries' in various sales tax statutes. That was in O.P No. 10598 of 1989 and TRC No. 203 of 1989 dated 21-7-1992. There the matter, no doubt, arose under S. 5(3) of the Central Sales Tax Act but the main point was whether raw cashew nuts and cashew-kernel extracted therefrom were the same commodities commercially or were different commodities. The judgments of the Supreme Court laying down the common parlance test, the commercial parlance test, the dictionary meaning test, the user test and lastly the substantial identity tests were all reviewed by the Full Bench in its majority Judgements (rendered by two of us, the Chief Justice and Paripooman, J.) (One of us, Krishnamoorthy, J., while concurring with the result, differed on certain aspects and pronounced a separate judgment). In the majority judgment it was held that raw cashew nuts and cashew-kernel extracted therefrom, even if they could be different commodities commercially if the earlier tests of common or commercial parlance were applied, they were however different commodities commer cially if the “substantial identity” test laid down by the Supreme Court in Deputy Commissioner of Sales Tax v. Pio Food Packers ((1980) 46 STC 63-SC), Sterling Foods v. State of Karnataka ((1980) 63 STC 238-SC) were applied. But, on facts, we felt bound by the observations of S.R Das J. in his separate judgment in Shanmughavilas' case ((1953) 4 STC 205-SC) where it was held that cashew-kernel was different commercially from raw cashew nut, there being, according to the learned Judge, a process of manufacture.

11. We may point out that in Pio Foods' case (1980 KLT 624 : (1980) 46 STC 63-SC), the Supreme Court was dealing with pine apple fruit which was washed and then the inedible portion the end-crown, the skin and inner core were removed and then the fruit was sliced and the slices filled in cans, sugar added as a preservative, the cans sealed under temperature and then put in boiling water for sterilisation. It was held that there was no process of manufacturing involved and tht the original pine apple had not lost its commercial identity. The matter had arisen under S. 5A(1a) of the Kerala General Sales Tax Act wherein the words ‘consumes such goods in the manufacture of other goods for sale or otherwise’ fell for consideration. In that context Pathak J. (as he then was) observed that the generally prevalent test was whether the article produced was regarded in 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 intent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps different kinds of processing at each stage. The Supreme Court observed:

“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 have taken place… Although it has undergone a degree of processing, it must be regarded as still retaining its original identity.”

12. After posing the question: “Does the processing of the original commodity bring into existence a commercially different and distinct article?”, Pathak, J., (as he then was) referred to two leading American cases. The first one is Anheuser-Busch Brewung Association v. United States ((1907) 207 US 556 = L. Ed. 336) where it was observed:

“At some point, processing and manufacturing will merge. But where the commodity retains a continuing substantial identity through processing stage, we cannot say that it has been “manufactured”.

13. There, as pointed out in an earlier Full Bench decision referred to above dealing with raw cashew nuts, certain corks were cut, assorted, branded with date and name of brewer etc., to show from what firm the cork came from. The corks were put into a machine or air-fan and dust, neal, bugs and worms removed, they were then cleansed by washing, and steaming, removing tannin and germs and making the corks soft and elastic, and they were exposed to blasts of air in a machine, until they were absolutely dry. They were then put into a bath of glycerin and alchohol and dried in a special system and finally dried by absorption of the chemicals that had covered them. This process would take three days. It was held that there was no new substance derived. In East Texas Lines v. Frozen Food Express ((1955) 351 US 49 : 100 L. Edn. 917) which was also referred to in Pio Foods' case, Douglas J. (as he then was) held that “processing of chickens” in order to make them marketable, did not turn them from agricultural commodities into manufactured commodities. He observed:

“Killing, dressing and freezing a chicken is certainly a change in the commodity. But it is no more drastic a change than the change which takes place in milk from pastuerising, homogeneousing, adding vitamin concentrates, standardising and bottling.”

14. There was, it was held, no difference between the chicken in the pan and the one that was dressed.

15. Sterling Foods' case ((1980) 63 STC 238-SC) came soon thereafter. There the appellants purchased shrimps, prawns and lobsters locally and cut the heads and tails of the shrimps, prawns and lobsters and then subjected them to peeling, de-veining and cleaning and freezing. It was held that by reason of the processing of the goods after their purchase, there was no change in their identity and that, in fact, commercially they were to be regarded as the original goods from they were processed. The original goods were only made ready for the table. Bhagwati, C.J, observed that the test was whether, in the eyes of those dealing in the commodity or in commercial parlance, “the processed commodity is regarded as distinct in character and identity from the original commod ity”. This case was followed in Deputy Commissioner of Sales Tax v. Shippy Interna tional ((1988) 69 STC 325-SC) where it was held that when fresh frog legs were subjected to a process wherein the skin was removed and the goods were then washed and freezed, there was no distinct change in me character or substantial identity of the goods.

16. We may also point out that even earlier, ‘Rice’ was held to include ‘parched rice’ and ‘puffed rice’ in Alladi Venkateswarlu v. Government of Andhra Pradesh ((1978) 41 STC 394-SC). In State of Orissa v. Titaghen Paper Mills ((1985) 60 STC 213-SC, timber and ‘sized and dressed timber’ were held to be the same commodity. Much earlier, in Thungabhadra Industries Ltd. v. Commercial Tax Officer ((1960) 11 STC 827-SC), it was held that even ‘hydrogenated oil’ or ‘vanaspathi’ were not different from ‘ground nut oil’. It was observed that even though by refinement and hydrogenation, the viscous liquid became ‘semi-solid’ liquid, the ‘essential nature’ of the commodity had not changed. The addition of hydrogen atoms was, it was observed, made to make the groundnut oil more stable, thus improving its quality and utility. It was stated:

“…. neither mere absorption of other matter, no inter-molecular changes necessarily affect the identity of a substance as ordinarily understood… It would undoubtedly be very bad ground nut oil but still it would be ground nut oil and if so, it does not seem to accord with logic that when the quality of the oil is improved that its resistance to the natural process of deterioration through oxidation is increased, it should be held to be not oil.”

Again in Commissioner of Sales Tax, U.P v. Harbilas Rai & Sons ((1968) 21 STC 17 SQ, bristles plucked from pigs, boiled, washed with soap and chemicals and sorted out in bundles according to their size and colour, were regarded as remaining the same commercial commodity, namely, pigbristles.

17. In the light of the above line of cases dealing with the ‘substantial identity’ test, can it be said that chilly in its original form (see item 27 of Schedule 1) and chilly powder are different commercial commodities? In our opinion, not. When chillies are made into powder, they do not, in our view, change in ‘substantial identity and character’ or ‘essential nature’. They may be used in their natural form or used after being converted into powder. The mere change into the powdered form, in our view, does not change the ‘essential nature’ of the commodity, as stated in Tungabhadra Industries' case or the substantial identity, as stated in Pio Foods' and Sterling Foods' cases decided by the Supreme Court. There is only a change in the form and no change in the substantial identity.

18. We may, in this context, also refer to other cases decided by certain other High Courts in regard to certain commodities in the original form and in the form of their powders. It has been consistently held that there is no change in the substantial identity though there may be change in the form. In Rasoi Products v. Commercial Tax Officer ((1982) 51 STC 248-Cal.), the Calcutta High Court held that when pepper, black pepper, white pepper and turmeric are powdered, there is no substantial change in the commodities and that the powders are not again, liable to sales tax. In R.B Takkur Takkur (P) Ltd. v. Coffee Board ((1991) 80 STC 199-Mad.) it was held by the Madras High Court that when coffee seeds are powdered and coffee powder results, there is no substantial change in the identity of the two goods for purposes of sales tax. In New Swastic Flour Mill v. State ((1992) 84 STC 49-Kara.), the Karnataka High Court held that ???a, maida and soji which are produced out of wheat, though different in form from the parent substance, they are nothing but wheat in substance for purposes of the sales-tax law. They followed the decision in Dhanbad Flour Mills v. State of Bihar ((1989) 75 STC 47-Patna) of the Patna High Court, where a similar view was taken.

19. Following the decisions of the Supreme Court referred to above, which now have emphasised the essential nature or the substantial identity tests, and the decisions of the High Courts above referred to, we hold that when chillies are converted into chillie powder, they essentially and substantially remain the same commodities and are therefore not taxable under entry 27 of Schedule 1 once again when sold in the powdered fom. We accordingly overrule Ambika Provision Stores v. State Of Kerala (1987 (2) KLT 99). To the extent that Ambika Provision Stores' case is accepted in Rani Food Products' case, the latter is also overruled to that extent. We also hold that Ext. P2 clarification of the Government that chillies in the powdered form are again taxable and that too under Entry 27 of the Schedule 1 to the Act is clearly erroneous. We decide the first question posed in Ext. P1 accordingly.

20. We shall now deal with the second question posed in Ext. P2 which deals with curry-powder. Curry powder is essentially a mixture of two commodities in the powdered form, such as the mixture of chilly powder and corriander powder. We have already held that when chillies are converted into chilly powder or for that matter corriander into corriander powder, each of the resultant substances are not liable to sales tax again when sold in that form as the essential nature and substantial identity remains the same. But the question now is if two commodities in their powdered form are mixed, can the mixture be said to be not a new commodity? The question also is whether the mixture would be ‘spices’ as stated in Entry 27 of the I Schedule?

21. It is in this context, that the decision in Dy. Commissioner Of Sales Tax v. M/S. Rani Food Products (1987 (2) KLT 1033) becomes relevant. There, the Division Bench held that when chilly powder and corriander powder are mixed, the resultant commodity is a different product. We are in entire agrement with this view of the Division Bench that the resultant product, the mixture—which is also called curry powder— is taxable under the Sales Tax Act for it is essentially and substantially different from either chillies or corriander taken separately.

22. The further question is whether the said mixture or curry powder is taxable under entry 27 of Schedule 1 at 8% or whether it is taxable at a lesser rate as general goods. The Division Bench in Rani Food Products' case accepted the view of the Tribunal in that case that the mixture is taxable not as spices but only as general goods. We respectfully agree with this view of the Division Bench in Rani Food Products' case. The order dated 13-9-1988 in the Review Petition filed in Rani Food Products' case is also accepted by us to the above extent.

23. Therefore, so far as the second question posed in Ext. P1 is concerned we hold that the mixture or curry powder is taxable and the rate applicable is not 8% as in entry 27 of Schedule 1 but is the lesser rate applicable to general goods. The decision of the Government in Ext. P2 to the extent that the curry powder is taxable is accepted but we do not agree that entry 27 of Schedule 1 is applicable to the curry powder. The mixture is liable to tax only as general goods. To the extent of liability of the mixture to sales tax, Ext. P2 is correct and to the extent of rate of tax on the mixture, it is wrong.

24. In the result, we overrule Ambika Provision Stores' case (1987 (2) KLT 99) and its acceptance in Rani Food Products' case (1987 (2) KLT 1033). As to the curry powder mixture's taxability and as to the rate of tax applicable thereto we accept Rani Food Products' case (1987 (2) KLT 1033). The Writ Petition is allowed quashing Ext. P2 in part as stated above. No costs.

Paripoornan, J.:—

25. With great respect to My Lord. The Chief Justice, I am of the view that the Original Petition should be dismissed. I was a party to the decisions in Ambika Provision Stores' case (1987 (2) KLT 99) and also in Rani Food Products case (1987 (2) KLT 1033). So, I am of the view that the entire matter should be reviewed briefly to bring out clearly the matters decided in those cases and the limited question that arises for consideration herein. I shall state the facts and the relevant law in brief, in view of the importance of the question that arises for consideration.

26. The petitioner herein is a firm. It is engaged in the business of producing and marketing pickles, chilly powder and other items. The firm is an assessee under the Kerala General Sales Tax Act. It purchased chillies from local market paying sales-tax at me point of first sale in the State at 8%. The firm produces chilly powder from such tax borne chillies. The chilly powder was sought to be taxed. The petitioner contended before the Assessing Authority, the Board of Revenue and the Government, that the word ‘spices’ occurring in Entry 27 of the First Schedule of the K.G.S.T Act will take in chillies and also the chilly powder, and since the commodity is taxable only at the point of first sale in the State, the chilly powder produced out of tax borne chillies cannot be taxed again. The Revenue did not accept this plea. That resulted in the filing of this Original Petition assailing the stand taken by the Revenue.

27. The short point that arises for consideration in this case turns on the interpretation of Entry 27 of First Schedule to the K.G.S.T Act as it stood at the relevant time. It is as follows:

Sl. No. Description of Article Point of levy Rate of tax 27. Spices (including chillies and corriander seed) not falling under any other items in this Schedule. At the point of first sale in the State by a dealer who is liable to tax under Section 5. 8

28. Admittedly, chillies will be taken in by the above entry. The chillies purchased by the firm had borne tax. The firm produces chilly powder from such tax borne chillies. The question is whether chilly powder can again be taxed? The stand of the Revenue is that it can be so done. The Revenue did so and further held that chilly powder is spices falling under Entry 27 of the First Schedule to the K.G.S.T Act and taxable at 8%. The assessee had no case eitherbefore the statutory authorities or before us that even if chilly powder can be taxed again, it cannot be taxed asspiees falling under Entry 27 of the First Schedule, but only under some other Entry or as general goods.

29. An identical question came up before a Bench of this Court in Ambika Provision Stores v. State Of Kerala (1987 (2) KLT 99). In the said case, the Sales Tax Appellate Tribunal had found that chillies and corriander as well as their powders are commercially distinct and different commodities. This Court held that the process in the original commodities, viz. chilly and corriander, into chilly powder and corriander powder brought into existence a commercially distinct and different commodity which were again taxable as spices, falling under Entry 27 of the First Schedule of the Kerala General Sales Tax Act. The said decision will squarely apply to the instant case also. But it is contended that a later Bench has taken a different view in Dy. Commissioner Of Sales Tax v. M/S. Rani Food Products (1987 (2) KLT 1033) and in view of the conflict of Bench decisions, the matter requires reconsideration. That is the reason why the Division Bench, which heard the matter originally, referred this case to a Full Bench, by order dated 30-7-1990.

30. In Ambika Provision Stores' case (1987 (2) KLT 99, at page 100 para 4), the Division Bench held thus:

“It is true that chilly and corriander are liable to tax at 8% single point; but it should be stated that when chilly was turned into chilly powder and corriander into corriander powder, the original commodities underwent a change, giving rise to chilly powder and corriander powder. They can no longer be regarded as chilly and corriander. A new and distinct commodity emerged out of manufacturing process. These two new or commercially different com modities are taxable again under Entry 27 of the First Schedule of the Act at 8%. The same commodity at different stages could be treated and taxed as commercially different articles. Thisposition is settled by a series of decisions of courts. We are of the view that “chillie powder” and “corriander powder” are distinct and different from chilly and corriander, both in common parlance and in commercial circles”.

31. In Rani Food Products' case (1987 (2) KLT 1033) the assessee was a dealer in sambar powder, meat masala, pickle powder, etc. For the assessment year 1983-84, the turnover of these powders was assessed at 8% treating them as spices. The Sales Tax Appellate Tribunal held that the said powders could not be treated as spices, but only as general goods taxable at the general rate of 4%. If was observed that, the three, main curry powders constituted mainly ingredients like chilly and corriander liable to be taxed at the rate of 8% as spices. But the Appellate Tribunal held that the commodity, which emerged from mixing the various ingredients, cannot be held either as chillies or corriander and cannot be called as spices. The said view, expressed by the tribunal, was upheld by this Court But an observation, in para. 6 of the judgment, to the effect that Item 27, including chillies and corriander seeds, does not include the powders thereof necessitated the filing of review petition by the Revenue and in clarifying the matter, this Court held that chilly and corriander seeds, when powdered and mixed, will not fall under Item 27. That was so since a hew commodity emerged out of the mixture which was not governed by any entry in the First Schedule and it could be treated only as general goods liable to tax at the rate of 4% multi point. It should be noticed that in the later Division Bench case (Rani Food Products' case - 1987 (2) KLT 1033) the question arose whether the curry powders consisting of a mixture of powders of chilly and corriander will fall within the entry ‘spices’ and the Court held that it will not be so. A mixture of the powders will be a distinct and different commodity and will not be taken in by the word ‘spices’. In the above perspective, there is no conflict between the two Bench decisions (Ambika Provision Stores' case - 1987 (2) KLT 99 and Rani Food Products' case - 1987 (2) KLT 1033).

32. It was argued that when chilly powder is produced from tax borne chillies, it continues to be the same commodity and bears the same identity and since chillies were taxed at the first point of sale, the chilly powder produced out of such chillies should not be taxed again. In advancing the above plea, counsel for the assessee submitted that the Supreme Court of India has, in recent times, laid down a new test known as “identity test” and in that perspective the identity of the goods is not lost when chilly powder is produced out of chillies purchased. Heavy reliance was placed on the decisions of the Supreme Court in Tungabhadra Industries Ltd., Kurnool v. Commercial Tax Officer, Kurnool (11 STC 827); Pio Food Packers' case (1980 KLT 624 : 46 STC 63); Sterling Food v. State of Karnataka (63 STC 238) and Dy. Commissioner v. Sipi (69 STC 325) to support the above plea. The above plea was highlighted contending that there is no substantial difference in the identity between chilly and chilly powder and so the chilly powder cannot be called a distinct and different spice liable to tax again. This Full Bench had occasion to survey the various or different tests adopted in different cases, as to how a particular entry occurring in Sales-tax legislation should be understood. See-O.P No. 10598/89 and TRC No. 203/89, judgment dated 21-7-1992.

33. I am of the view that the plea of the assessee is against the decisions of the Supreme Court and the Full Bench decision of this Court. A Constitution Bench of the Supreme Court, in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer (12 STC 286), has ruled that in the absence of a definition of the word in the Sales Tax Act, the words occurring in the Act should not be construed in any technical sense or from the botanical point of view, but as understood in common parlance. It must be construed in its popular sense meaning that sense which people conversant with the subject matter with which the Statute is dealing would attribute to it. Subsequent Constitution Benches and other Benches of the Supreme Court have followed the above decision. The ratio stated in Ramavatar's case (12 STC 286) was expressed in a slightly different language also by stating that the particular words used by the Legislature in the denomination of articles are to be understood according to common commercial understanding of the terms used and not in their scientific or techinical sense (see State of West Bengal v. Washi Ahmed - 39 STC 378 at page 380). They should be understood in the ‘commercial sense’ (see Commissioner of Sales Tax v. Jaswant Singh Charan Singh - 19 STC 469 (472) (SC). The crux of the matter is that the entry occurring in the Sales Tax Act should be construed as understood in common parlance or in the commercial world or circle. Ramavatar's case (12 STC 286) was followed by Motipur Zamindary Company Limited v. The State Of Bihar (13 STC 1).

34. A Constitution Bench of the Supreme Court in Sri Siddhi Vinayaka Coconut & Co. v. State of Andhra Pradesh (34 STC 103 at page 110) observed thus:

“This Court has in a number of cases held that the same commodity at different stages could be treated and taxed as commercially different articles. In A. Hajee Abdul Shukoor & Co. v. State of Madras, this Court held that “hides and skins in the untanned condition are undoubtedly different as articles of merchandise than tanned hides and skins” and pointed out that “the fact that certain articles are mentioned under the same heading in a statute or the Constitution does not mean that they all constitute one commodity”. We may also refer to the decisions in Jagannath v. Union of India, where tobacco in the whole leaf and tobacco in the broken leaf were treated as two different commodities, East India Tobacco Co. v. State of Andhra Pradesh, where Virginia tobacco and country tobacco were treated as two different commodities, and Venkataraman v. Madras, where cane jaggery and palm jaggery were treated as two different commodities”.

35. The question in the said case was whether ‘watery coconuts’ and ‘dried coconuts’ are two distinct commodities, commercially speaking. The Court held that it was so. In laying down the law extracted herein above, the Constitution Bench followed the earlier Constitution Bench decisions in Hajee Abdul Shukoor and Co. v. State of Madras (15 STC 719), Jagannath v. Union of India (AIR 1962 SC 148) and East India Tobacco Co. v. State of Andhra Pradesh (13 STC 529). Various Constitution Bench decisions of the Supreme Court, viz. Shanmughavilas Cashewnut Factory's case (4 STC 205 (247) (SC), Anwarkhan Mehboob Co. v. State of Bombay (11 STC 698), Hajee Abdul Shukoor & Co's case (15 STC 719), Jagannath's case (AIR 1962 SC 148) and Sri Siddhi Vinayaka Coconut & Co's case (34 STC 103), have emphasized the cardinal point that if a new or different commercial article, or a different article of merchandise, or a different marketable product, is produced out of a commodity, it could be treated and taxed as a commercially different and distinct article. In Sri Siddlii Vinayaka Coconut & Co's case (34 STC 103), the Constitution Bench stressed the point that the same commodity at different stages could be treated and taxed as commercially different articles. A Full Bench of this Court in Achamma Sebastian v. State of Kerala (1967 KLT 832) had occasion to decide an issue similar to the one in the instant case. In that case, ‘rubber products’ were taxable at the point of first sale in the State under Item 5 of the First Schedule to the Act as it stood then. The assessee therein purchased rubber sole and rubber strap moulding from manufactures in the State. Sales tax was levied on the sale of such goods. The commodity so purchased by the assessee was sold as chappals. It was contended that chappel is a rubber product on which tax has already been levied at the point of first sale within the State. Since the sale of soles and strap mouldings by the manufacturers was taxed as rubber products, the further sales of such rubber products cannot be taxed. Negativing this plea, a Full Bench of this Court held that though chappal is an article consisting of a division of strap moulding and rubber soles, it is commercially distinct from those parts or ingredients and has an identity of its own as a well known variety of foot-wear. The Court observed that strap and the sole sold as chanal is a different entity and has a new identity. The straps and soles have separate commercial identity of their own, quite distinct from that of a chappal. The Supreme Court of India declined to grant special leave from the said decision (SLP. No. 143 of 1968).

36. Applying the ratio laid down by the Constitution Bench of the Supreme Court in the various decisions, Shanmughavilas Cashewnut Factory's case (4 STC 205 (247) (SC), Anwarkhan Mehboob Co.'s case (11 STC 698), Hajee Abdul Shukoor & Co.'s case (15 STC 719), Jagannath's case (AIR 1962 SC 148), Sri Siddhi Vinayaka Coconut Co.'s case (34 STC 103), etc. I hold that ‘chilly powder’ is distinct and different from ‘chilly’, both in common parlance and in commercial world or circles. It may be, “chilly” is taxed as spices coming under Entry 27. But, when “chilly powder” produced out of the chilly so purchased, a different and distinct commodity emerges as ‘chilly powder’, known in common parlance and commercial world or circle by distinct and different nameand the said chilly powder is taxable, as a different and distinct goods. The further question as to whether it can be taxed as “spices” under Entry 27 does not fall to be considered in this case.

37. The decisions of the Supreme Court relied on — Tungabhadras Industries Ltd. case (11 STC 827); Pio Food Packers case (1980 KLT 624 : 46 STC 63); Sterling Food v. State of Karnataka (63 STC 238) and Dy. Commissioner v. Sipi (69 STC 325) are distinguishable and the decisions turned on their own facts. It has not been laid down in those cases that in all cases eventhough a new or distinct and different commodity is produced as understood in common parlance or in the commercial world from the original commodity, the goods produced cannot be taxed again. I am of the view, that if the original commodity and the commodity produced have both distinct and different labels and/or understood in common parlance and in the commercial world as distinct and different goods, they are for all intents and purposes, taxable as different items of merchandise. This follows from the decisions, of the Constitution Benches of the Supreme Court referred to hereinabove.

38. It is evident that the cases pressed into service by the assessee ‘s counsel turned on the construction of the particular language of the Act in question. In Tungabhadra Industries Ltd. case (11 STC 827), the matter arose in connection with the claim of deduction under R. 5(1)(g) read with R. 18(2) of the Madras General Sales Tax (Turnover and Assessment) Rules. Pio Food Packer's case (46 STC 63) was concerned with the interpretation of S. 5A of the Kerala General Sales Tax Act. Sterling Food's case (63 STC 238) and Sippy's case (69 STC 325) were concerned with the interpretation of S. 5(3) of the Central Sales Tax Act, 1956. It is not possible for us to say that in these decisions rendered by the Supreme Court, the Court was deviating in any manner, from the earlier decisions of the Constitution Benches of the Supreme Court, Shanmughavilas Cashewnut Factory's case (4 STC 205, 207), Anwarkhan Mehboob Co.'s case (11 STC 698), East India Tobacco Co.'s case (13 STC 529), Hajee Abdul Shukoor and Co.'s case (15 STC 719), Jagannath's case (AIR 1962 SC 148) and Sri Siddlii Vinayaka Coconut & Co.'s case (34 STC 103). Later Bench decisons of the Supreme Court in Ganesh Trading Co.'s case (32 STC 623), Venkataraman's case (25 STC 196) and other cases (I need not multiply authorities and so I do not refer to all of them) have laid down the law only in conformity with the decisions of the Constitution Benches referred to earlier.

39. I am of the view that the decisions pressed into service by assessee's counsel can be explained or distinguished. The said decisions turned on their own facts in the context of relevant statutory provisions. In those cases, a minimal process or fashioning was employed, to preserve ‘the goods’— the commodity concerned from decay for over a period of time, and to make them marketable. In such cases, the goods or the commoditv was preserved, or still remained in tact. There was no change in identity. It was so, in substance too. No new or distinct or different commodity, as understood in common parlance or in the commercial world, ever emerged. That may be the basic reason for the Court to reach the conclusion, it arrived at in those cases. The principles or ratio or these later cases by Division Benches should be understood by us in the light of the ratio contained in the innumerable Constitution Bench decisions of the Supreme Court, which I have referred to earlier. I am of the view that it is plausible to state that the identity test is only one of the aspects to borne in mind in evaluating whether the original commodity has ceased to be and a new commodity or goods has resulted or is produced wi th a new label or user as understood in common parlance or in the commercial world.

40. Therefore, I hold that ‘chilly powder’ is distinct and different from ‘chilly’ — “spice”, purchased and which was taxed. As chilly powder is a distinct and different commodity, it could be taxed again. The said stand taken by the Revenue is plainly right. Ambika Provision Stores case (1987 (2) KLT 99) and Rani Food Products case (1987 (2) KLT 1033) were decided on their own facts and there is no conflict in the principles laid down in those decisions. The said decisions do not require reconsideration.

41. This Original Petition is without merit. It is dismissed. No costs.

ORDER OF COURT In view of the order of the majority, the writ petition is allowed. There will be no order as to costs.

42. Dismissed