JUDGMENT Satish Chandra, J.
1. The petitioner manufactures and sells oil as well as oil-cakes. It purchases oil-seeds after paying purchase tax on them. After extraction of oil from the seeds it sells the residue, which is oil-cake, to various dealers.
2. For the assessment year 1968-69 it was, in the usual course, assessed to sales tax. The plea that the turnover of the sale of oil-cakes by the petitioner was exempt under the notification dated 31st March, 1956, as amended by the notification dated 16th July, 1956, was accepted, and this part of the turnover was exempted from sales tax.
3. It appears that on or about 19th February, 1973, the Sales Tax Commissioner of this State issued a circular to all the assessing authorities indicating that oil-cakes, which are used for further extraction of oil and are not used as cattle fodder, are not exempt from sales tax. On the basis of this circular, the Sales Tax Officer issued notice to the petitioner under Section 21 of the U. P. Sales Tax Act for reopening the assessment for the year 1968-69. After hearing the petitioner he held that the turnover of oil-cakes of the petitioner to the tune of Rs. 1,91,261.48, which represented the sale of oil-cakes by the petitioner to Prayag Ice and Oil Mills was liable to sales tax at 2 per cent as an unclassified item because it was not exempt from sales tax as the Prayag Ice and Oil Mills used the oil-cakes sold by the petitioner for extraction of oil and not as cattle-fodder. On this view he levied a tax of Rs. 3,825.24 for this year.
4. On the basis of the same circular the Sales Tax Officer assessed the petitioner to tax in respect of its turnover of oil-cakes which he found had been sold by the petitioner to firms which, in their turn, used them for extracting oil for 1969-70. The present petition under Article 226 of the Constitution challenges these assessment orders for the years 1968-69 and 1969-70. In the latter year, there are two assessment orders-one under the Central Sales Tax Act and the other under the U. P. Sales Tax Act.
5. Entry No. 3 of the notification dated 31st March, 1956, as amended by the notification dated 16th July, 1956, reads :
Cattle fodder including green fodder, chuni, bhusi, chhilka, chokar, cotton seed, gowar and oil-cake.
6. For the petitioner it was urged that the term "cattle fodder" only includes green fodder. The other articles mentioned after green fodder are articles which are independently exempt because of their being included in this notification ; they are not exempt from sales tax on the ground that they are a kind of cattle fodder and as such they have been included in this entry.
7. The learned standing counsel, on the other hand, contended that chuni, bhusi, oil-cake, etc., mentioned in this entiy are exempt only in so far as they are included in the term "cattle fodder". In other words, these articles are commonly used as cattle fodder and, for that reason, they were included in the entry, which primarily dealt with cattle fodder so as to exempt it from sales tax.
8. Even if the interpretation placed upon the entry by the learned standing counsel be accepted, the position is that all those articles which can, in common parlance, be identified as chuni, bhusi, chhilka, chokar, cotton seed, gowar and oil-cake will be deemed included within the term "cattle fodder" as used in this notification, and will, as such, be exempt from sales tax. In our opinion, when the notification includes, inter alia, oil-cakes within "cattle fodder", it includes all such articles which are commonly known as oil-cakes. The notification presumes that oil-cakes, bhusi, chuni, etc., are generally used as cattle fodder and, as such, are to be deemed included within the term "cattle fodder". In this view of the matter, an article which is commonly and generally known as oil-cake will not cease to be so merely because in specific cases or in some situations that article is not actually used as cattle fodder but is put to some other use.
9. In the present case, the allegation of the department is that the petitioner is selling part of its production of oil-cakes to certain oil extraction plants, like the Prayag Ice and Oil Mills, which exclusively use this oil-cake for extraction of oil from it. These plants do not use it as cattle fodder. This, in our opinion, is besides the point. If the article sold by the petitioner is in the commercial world properly identifiable as oil-cake, it will be oilcake within the meaning of the notification dated 31st March, 1956, as amended by notification dated 16th July, 1956, so as to be exempt. The allegation made in the writ petition that oil-cakes are generally used as cattle fodder has not been disputed or contradicted. The position is that oil-cakes are generally and commonly used as cattle fodder ; then it cannot be said that the oil-cake of the variety produced by the petitioner is not oil-cake within the meaning of the notification dated 31st March, 1956, as amended by the notification dated 16th July, 1956. The fact that a part of the production of the petitioner goes to a firm which in its turn does not immediately put it to the common use, namely, as cattle fodder, will not change the nature or character of the product made by the petitioner. The product which was oil-cake at the time of the production at the factory of the petitioner would continue to retain its identity, no matter what use a prospective purchaser may put it to.
10. Similar question arose in Omrao Industrial Corporation (Pvt.) Ltd. v. Sales Tax Officer, Kanfiur 1974 U.P.T.C. 26. There the question was whether de-oiled rice bran was covered by the expression "cattle fodder". The evidence disclosed that generally de-oiled rice bran was used as cattle feed, but a part of the de-oiled rice bran produced by the assessee in that case was used as raw material for manufacturing poultry feed ; it was not used as such as cattle feed. A Division Bench of this Court held that none the less it will be cattle feed within the meaning of the notification because the product was generally used as cattle feed. The fact that in special cases the user was different will not make any material difference. The article was held to be cattle feed and hence "cattle fodder". The view taken in the case of Omrao Industrial Corporation 1974 U.P.T.C. 26 is applicable in the present case as well. The authorities below were not justified in bringing to tax the turnover of oil-cakes on the ground that it was sold by the petitioner to a firm, which did not use it as cattle fodder.
11. In the result, the petition succeeds and is allowed. The impugned assessment order under Section 21 of the U. P. Sales Tax Act for the assessment year 1968-69 is quashed. The assessment orders passed for the year 1969-70 under the Central Sales Tax Act as well as under the U. P. Sales Tax Act are quashed in so far as they impose tax on the turnover of oil-cake. The petitioner will be entitled to costs.