JUDGMENT Prakash Krishna, J.
1. This revision is directed against the order dated February 12, 1993 passed by the Sales Tax Tribunal, Bareilly in Second Appeal No. 711 of 1988.
2. The opposite party-dealer carried on the business of manufacture and sale of sulphur and sulphur's sludge. It disclosed for the assessment year 1985-86 a taxable turnover of Rs. 37,12,970. The assessing authority has accepted its account books but was of the view that the sale of sulphur sludge is taxable as waste products and as unclassified item and is taxable at the rate of eight per cent. It accepted the disclosed turnover of sulphur sludge amounting to Rs. 3,18,240 and levied the tax at the rate of eight per cent vide order dated May 25, 1989. This order was confirmed by the Deputy Commissioner (Appeals) by the order dated October 12, 1989. The Tribunal by the order under revision has held that sulphur sludge is not a waste product and is not liable to be taxed as unclassified item. Challenging the legality and propriety of the order passed by the Tribunal the present revision has been filed under Section 11 of the U.P. Sales Tax Act, 1948, by the Commissioner of Sales Tax. Following question of law as framed in the memo of the revision is said to be involved in the revision:
Whether, on the facts and in the circumstances of the case, the Sales Tax Tribunal was legally justified to hold that the sulphur sludge falls under the category of mineral and is taxable at the rate of four per cent despite the fact that the same should be taxable as an unclassified item?
3. Heard the counsel for the parties and perused the record. The dealer has purchased sulphur sludge which is also called as sulphur waste. It has purchased it from Fertilizer Corporation of India. A copy of contract with Fertilizer Corporation of India was produced before the Tribunal. From this contract the Tribunal found that the dealer purchased it at a price of Rs. 450 per metric ton and the percentage of sulphur was declared from 68 per cent to 95 per cent. In addition to the sulphur it contained silica ash, chloride and some percentage of moisturizer acid. Similarly, the contents of sulphur has been certified to be 85 per cent to 87 per cent in the sulphur sludge purchased from Southern Petro Chemical Industries Corporation Limited. The dealer-opposite party is manufacturer of sulphur role from sulphur sludge and the sulphur roll is taxable at the rate at which the mineral is taxable. Therefore it was urged that sulphur sludge should be taxable as mineral.
4. The Tribunal has considered the point in issue in great detail and has noted the manufacturing process of sulphur rolls. The sulphur rocks are imported in India from foreign countries. Southern Petro Chemical and Corporation is manufacturer of sulphur rolls from sulphur rocks. Sulphur rocks are kept in big round deep shaped containers (kunda). Through electronic process it is converted into sulphur rolls. In this process some sulphur remains stuck to the inner surface of the container. The dealer-opposite party on contract basis got the sulphur, thus, stuck with the walls of the container, scratched out and collects the same which is called sulphur sludge. As a matter of fact, it is sulphur waste. Reliance has been placed upon a report of Shri Ram Institute for Research. According to this report this Sulphur sludge product contains about 82.7 per cent of sulphur and 17.3 per cent other things. The Tribunal has recorded a finding that sulphur sludge obtained from the process mentioned above is nothing but a form of sulphur. Although the contents of sulphur are not 100 per cent.
5. The first appellate authority has observed in its order that the Southern Petro Chemical Industries Corporation, the selling dealer of the dealer-opposite party is manufacturer of sulphuric acid. In that process the sulphur sludge is produced as bye-product. Therefore, treating it to be waste product it has been justified that item in question should be taxed as an unclassified item at the rate of eight per cent. The Tribunal in great detail in its order has discussed the matter regarding the production of sulphur sludge. It has also noticed the relevant entry in the notification. The dealer-opposite party has placed reliance upon the Notification No. 4949 read with the Notification No. 6075, dated of October 1, 1983. Serial No. 3(a) of the said notification reads as follows:
Point of tax Rate of Tax All kinds of minerals M or I 4 per cent
6. Use of words "all kinds" expands the scope and ambit of entry. This Court in the case of Mineral Sales Corporation v. Commissioner of Sales Tax [1980] 46 STC 208 : 1980 UPTC 382, while interpreting the words "all kinds of minerals" in the Notification No. 4949 has held that it includes every thing which can be described as minerals. It is exhaustive in nature but it does not extend to form. A mineral taken out of mine may assume numerous forms or shapes by manufacturing or even by processing according to its use and need. What is covered in the entry "all kinds" means the mineral and not its form.
7. In the aforesaid case of Mineral Sales Corporation , reliance has been placed in a case of Mini Fertilizer (Pvt.) Ltd. v. Commissioner of Sales Tax [.). In that case a question arose whether sulphur roll obtained out from sulphur by melting, pumping and rolling, etc., ceased to be mineral. It was held that the sulphur still remains sulphur notwithstanding the fact that there has been an alteration in the identity of the commercial commodity, namely, sulphur. All that has happened is that the rock sulphur has been purified and put in a shape of sulphur rolls. The sulphur rolls are nothing but a purified form of rock sulphur. To my mind on the basis of same analogy the sulphur sludge is covered within the phrase "all kinds of mineral". A finding has been recorded by the Tribunal that the sulphur sludge, thus, obtained by the dealer-opposite party contains sulphur to a great extent varying from 85 per cent to 87 per cent. The Tribunal has placed reliance upon a report submitted by Shri Ram Institute for Research certifying that the sulphur sludge contains sulphur around 82.7 per cent. The said report is by an expert body and its contents have not been disputed or controverted or doubted by the department in any manner. In view of the words "all kinds of minerals" used in the notification in question sulphur sludge still remains mineral. At the most it can be said that the sulphur sludge is not 100 per cent sulphur. Nonetheless, nobody disputed that it is sulphur as the contents of sulphur are more than 80 per cent as certified by the expert body. Keeping in view that all kinds of minerals are taxable at the rate of four per cent, the sulphur sludge be taxed as "mineral" accordingly, and not as an unclassified item.
8. In my view there is no legal error in the order of the Tribunal. The revision is dismissed.