2009 (5) TMI 898

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....ji Agrawal assisted by Shri Piyush Agrawal and Shri B.K. Pandey, learned Counsel for the State have been heard. In Trade Tax Revision No. 1550 of 2005 Shri V.B. Upadhyaya learned Counsel for the assessee assisted by Shri S.C. Tripathi and Shri B.K. Pandey, learned Counsel for the State have been heard. Both the matters are being heard together as both the matters are concerned with the construction of Entry No. 47 of Notification No. 2375 dated 23.11.98. The entry No. 47 reads as hereunder:- Sl. No.  Description of Goods Point of tax Rate of percentage 47. Paints and varnishes of all kinds and all materials used in painting or varnishing, including distempers, cement colours or paints, powder paints, stiff paste pa....

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....ufacture' is based on surmises and conjectures in view of the fact that no such admission was ever made either in the written arguments or in the course of oral arguments that in any base material something is added to make it a paint which amounts to 'manufacture' and this observation was made without any basis and without any justification? 5. Whether in any view of the matter, the order of the Trade Tax Tribunal is erroneous and liable to be set aside? 3. Trade Tax Revision No. 711 of 2002 has been filed against the order of the Tribunal dated 11.10.02 by which the Tribunal came to the conclusion that the base paint is quite different from the paint which emerges after the adding of colours, giving a finding that there was no scien....

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....uct into existence. The base paint can also be used as paint." 6. Other than the findings recorded in the order of the Tribunal for Raj Deep Brothers and the evidence, which has come from the Harcourt Butler Technological Institute, the present day common usage of paint is that normally a white and base paint material is available in the market and colour is added according to the choice of the consumer, which is mixed through computerized colouring dispensers, to arrive at the shape required by the customer. The base material, which is used prior to the addition of paint is commonly known and used as paint and even after the addition of the colour, it is known as paint. It is commercially used and sold as paint and that is its distinct ....

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....hat "every type of variation of the goods or finishing of goods would not amount to manufacture unless it results in emergence of a new commercial commodity." In the instant case, the very nature of the activity does not result in manufacture because no new commercial commodity comes into existence. 10. Learned Standing Counsel has relied on a decision of the Apex Court in the case of Sonebhadra Fuels vs. Commissioner, Trade Tax, U.P., Lucknow 2006 NTN (Vol. 31) 1. However, the facts of this case are completely distinguishable from the present case because that was a case, which was relating to the manufacture of coal briquettes, which were produced by binding clay or molasses with coal. 11. Having heard learned Counsel on both the si....