COMMISSIONER OF INCOME TAX vs ASPINWALL and CO. LTD.

V. V. KAMAT, J. :

These references relate to the asst. yrs. 1980-81 and 1983-84 respectively. However, the questions that we are required to consider on reference is identical and the same is as follows :

"Whether, on the facts and in the circumstances of the case, the Tribunal is right in law and fact in holding that the assessees activity of curing coffee amounts to manufacturing and the assessee is entitled to relief under s. 32A of the IT Act ?"

The assessee is a public limited company. Undisputedly, it is engaged in the export of coir products, distribution of insecticides and pesticides, running and managing of estates on service contracts, coffee curing and sale and also agency activities for certain shipping lines. We are concerned with the activity of the assessee-company in coffee curing and its sale.

This activity has become the subject-matter of investment allowance under s. 32A of the IT Act, in relation to machinery or plant installed in a small-scale industrial undertaking for the purpose of business of manufacturing or production of any article or thing. This activity of coffee curing and sale for the asst. yr. 1978-79 of the same assessee-company has been the subject-matter of the earlier judgment dt. 12th Aug., 1993 in IT Ref. No. 46 of 1991 [since reported as CIT vs. Aspinwall & Co. Ltd. (1993) 115 CTR (Ker) 85], wherein this Court, being unable to answer properly and satisfactorily the factual position, declined to answer the situation as to whether any manufacturing activity or process is involved in curing coffee.

The learned counsel has produced before us a copy of the judgment of the Tribunal to know exactly as to what is curing coffee and the factual position in regard thereto.

Before dealing with the factual position on the basis of the said fact-finding by the Tribunal, it would be beneficial to know what is understood by coffee as is generally known in the commercial parlance. The said general material is made available to us by the learned senior tax counsel by referring to Encyclopedia Britannica, Vol. 6 (1972 Edn.) (page 26 onwards) and we get a general idea that coffee is a beverage made from the roasted seeds (beans) of the coffee plant. The said beverage is consumed as either a hot or cold drink and is considered to be having an invigorating effect. This effect is produced by caffeine as it functions as a stimulant and diuretic through its actions on the central nervous system. Coffee is prepared by either a dry or a wash process. In the dry process, known as natural process, the coffee cherries are thoroughly rinsed in water and then spread out on cement patios in the open air and sun to dry. After drying, the coffee is repeatedly run through fanning and hulling machines to remove the hulls, dried pulp and parchment. The wash process is quite different. In this process, the cherries are first put through a pulping machine that breaks them open and virtually squeezes the beans out of the pulpy skin. Such beans go into large tanks where they are left for about 24 hours. Fermentation in the process is avoided, because it loosens what is known as a jellylike substance understood as honey in regard thereto. Even in this process, after washing, the coffee is spread out in patios to dry. It takes two to three weeks in the sun for the coffee to become thoroughly dried and during this time, needless to say that this requires reshuffling in the process by turning over in the process of giving sufficient natural heat depending on the climatic conditions.

It is to be noted that the usual expected aroma is available only after the process of roasting. Upto this stage of roasting, even the taste that is generally associated with the mouth washing effect is also not associated therewith. Roasting also changes the colour giving it a brown colour and a consequent process of chemical change also. This process of roasting brings with it splendid aromatic qualities and pleasing taste.

The factual material to enable us to know that is curing of coffee is available to us with regard to the activity of the assessee-company as a result of the material in pursuance of the earlier order. There should not be any dispute in regard thereto because the factory premises were inspected by the Tribunal to have a firsthand knowledge of the operations carried on by the assessee-company. The Tribunal has also noted that this was embarked upon by it so as to enter a finding of fact. This was also done in the presence of both the parties through their representatives. The factual observations of the Tribunal as a result of the inspection found it necessary to deal with the following nine aspects in curing of coffee.

"(1) Receipt of coffee from the Estates;

(2) Storage of coffee in covered godowns;

(3) Drying of coffee to the required standards prescribed by the Coffee Board in drying yards;

(4) Hulling/Pealing/Polishing;

(5) Grading of coffee mechanically;

(6) Colour sorting;

(7) Garbling and manual grading;

(8) Out-turning of garbled coffee; and

(9) Bulking".

The Tribunal has also found that to deal with the nine aspects, the assessee has the factory area where godowns for storage of uncurred/clean coffee, coffee drying yards, machine rooms, garbling sheds, etc. are located.

In the curing of coffee, certain processes are involved and they are also spread over by the Tribunal. The first is the process of drying. Thus curing operations start with the drying of coffee in the drying yards in bright sunlight. Then comes the stage of hulling. It means, the outer husk of the coffee bean has to be carefully removed, if necessary, by mechanical operations to obtain coffee seeds, which can further be processed. This hulling process is also considered by the Tribunal in relation to particulars thereof, such as pre-cleaning, destining, elimination of husk, separation of unhulled beans, and polishing. In other words, this process of hulling, if understood in the light of the different facts discussed in regard thereto, in common parlance, would have to be understood as separating chaff from the wheat. The Tribunal has also dealt with the further steps as a result of the process of hulling. It is a process of gradation. This process of gradation requires separation of good coffee for the purpose of grading by a process of what is known as garbling/manual grading. As time advances and necessity demands, this work, as is fairly known, is done by the process of mechanical men in regard thereto.

Thereafter, the next stage is the process of polishing on the basis of grading. It is at this stage, the Tribunal describes the entire process as garbling, out-turning, bulking and then exportation thereof. This is at the stage of raw material, which is graded dry still in the shape of coffee cherry. In this process, as it would be seen even otherwise, impurities are removed, husk is removed from the coffee cherry and cured seeds are obtained finally in graded varieties, if necessary, after polishing and needed coloring. As far as the assessee-company is concerned, this coffee cherry is the final product with reference to their activity. We must record that in view of the earlier judgment of this Court, wherein a fact finding was expected and accordingly directed, we have chosen to accept the said factual approach which otherwise also received finality in regard thereto, whether the proceedings relate to the asst. yr. 1978-79 or even with regard to other two years which are the subject matter of application of the law in regard thereto. It must be noted that for all these assessment years, in the absence of a specific finding of fact, this Court had to adopt the course of inviting necessary fact-finding. When we find after that the necessary fact-finding that the product is a product after inspections by the members of the Tribunal in the presence of both the sides, taking into account the elements of finality in regard thereto, even with regard to other assessment years, we proceed with our further reasoning as to whether any relief under s. 32A of the IT Act would be available, dwelling upon the above fact-finding, which is specified by us hereinbefore with the benefit of the copy thereof placed for our consideration by the learned counsel.

Sec. 32A of the IT Act deals with the question of investment allowance. It is in respect of the ship or aircraft or machinery or plant specifically spoken in s. 32A(2) thereof. In the proceedings before us, obviously, the investment allowance would be with reference to machinery or plant. Further step that is required in regard thereto is the ownership by the assessee and an additional requirement that it is wholly used for the purpose of the business carried on by the assessee-company. If these things are established, deduction can be allowed with regard to the machinery or plant installed in the immediately succeeding previous year. Percentage of the said investment allowance, unnecessary for our purpose, is also stated in the said statutory provision.

The above statutory provision has exceptions which are provided in the proviso to s. 32A(1) of the Act. They are relating to, (a) any machinery or plant installed in any office premises or any residential accommodation, including any accommodation also in the nature of a guest house; (b) any office appliance or road transport vehicles; (c) machinery or plant is respect of which the deduction is also allowable under s. 33 of the Act by way of development rebate; and lastly (d) any machinery or plant in regard to which the whole of the actual cost is allowed as a deduction by way of depreciation in computing the income chargeable under the head profits and gains of business or profession.

Similarly, this machinery or plant is also particularised as stated above in s. 32A(2). For the purpose of these proceedings, installation is necessary after 31st day of March, 1976 and also has to be found in s. 32A(2)(b)(iii) that the machinery or plant is required to be in a small-scale industrial undertaking for the purposes of business of manufacture or production of any article or thing. This is the necessary required statutory provision of s. 32A of the IT Act, 1961 requiring us to determine that the installed machinery or plant satisfies that it is for the purposes of business of manufacture or production of any article or thing. In other words, on the basis of the above factual matrix spread over, we have to determine the activity, whether it is for the purposes of business of manufacture or production of any other article or thing.

The learned senior tax counsel submitted that the occasion to determine the installation of the machinery or plant for the purposes of the business of manufacture or production of any article or thing is required to be considered by the Courts not only in the context of the above provisions of the IT Act, but also in regard to other statutory provisions of the said Act, illustratively such as s. 80J of the Act relating to deduction in respect of profits and gains from newly established industrial undertakings which begin to manufacture or produce articles or to operate its cold storage plant or plants after 31st March, 1976. The learned senior tax counsel also brought to our notice situations of similar occasion in the statutory provision of s. 80HH of the IT Act relating to profits and gains derived from an industrial undertaking or hotel requiring the Court to determine the exact nature of the activity, whether it relates to a situation of manufacture or production in relation to the process undertaken by the assessee concerned.

The learned senior tax counsel also submitted before us that the Courts are required to consider the nature of the activity whether it amounts to manufacture and/or production in regard to the process involved in regard thereto, also for the purposes of levy of tax and duty of excise. He submitted that in regard to necessary and relevant statutory provisions of the Kerala General Sales-tax Act (s. 5A thereof) and the Central Sales-tax Act [s. 5(3)], the concerned authorities are required to determine the nature of the process as to whether there is any element of manufacture and/or production in regard to the process undertaken by the person claiming deduction on the basis thereof. Illustratively in the context, the learned senior tax counsel pointed out the provisions of s. 5A of the Kerala General Sales-tax Act and submitted that apart from the question of levy of tax, the Courts otherwise also are required to determine the nature of the activity for the purpose of levy of excise duty under the provisions of the Central Excise and Salt Act. Referring to the above legislations, the learned senior tax counsel submitted that in fact, for application of the principle as to what is to be understood with regard to the process as to whether it is manufacturing and/or production activity, whether it is for the purpose of deductions under s. 32A of the Act, whether it is for the purpose of benefits under s. 80HH and 80J of the Act or even whether it is for the purpose of sales-tax or even levy of excise duty, the situation in the context would be wholly immaterial because with regard to the concerned activity, it would be for the Court to determine the nature of the activity with reference to the factual matrix, in regard to which there should not be any dispute. The learned senior tax counsel submitted that as to what amounts to manufacture or production has been declared not by one, but as many as four decisions of the apex Court Commissioner of Income Tax, Orissa and Others Vs. N.C. Budharaja and Company and Others, ; Delhi Cold Storage Pvt. Ltd. Vs. Commissioner of Income Tax, New Delhi, Sterling Foods vs. State of Karnataka & Anr. (1986) 63 STC 239; Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam Vs. Pio Food Packers, ]. The learned senior tax counsel, placing reliance on the above decisions of the apex Court with reference thereto, has submitted that the apex Court in unequivocal terms, leaving no manner of doubt, has declared the law in regard to the situation as to what is to be understood as manufacture and/or production in the context of the situation under consideration to be applied to the various statutory provisions, not only of the IT Act, 1961, but also with regard to the provisions of the Sales-tax Act and Excise Act in regard thereto. The learned senior tax counsel also brought to our notice, by referring to these decisions in extenso, that even the apex Court, while dealing with the situation under the IT Act, has not considered to be under any fetters to refer to its earlier decisions under the provisions of the Sales-tax Act because it is the determination of the nature of activity whether it is for consideration of the benefits of the Sales-tax Act or for the benefits of the Central Sales-tax Act or Central Excise Act, the situation would not be of a different character in regard to its application. The learned senior tax counsel made us conscious and aware of Art. 141 of the Constitution of India to the effect that the declaration of law made by the Supreme Court has an absolute binding character, on all Courts within the territory of India and on the basis thereof, contended that even if in a given situation, a distinction is made out to the effect that the decisions of the apex Court rendered under the provisions of the IT Act, 1961 would not govern the situations required to be considered with reference to proceedings either under the Sales-tax Act or under the Central Excise Act, such a situation can never be meaningful in terms of Art. 141 of the Constitution. The learned senior tax counsel submitted that the question is completely answered by the above decisions of the apex Court. The learned senior tax counsel also submitted that reading the factual peculiarities of the said four decisions of the apex Court, the question would not be leaving any doubt in regard thereto, because the apex Court had an occasion to consider the situation with reference to meaningful nature of activities and that the apex Court had considered the situation with regard to the problem relating to the claim for deduction by a contractor engaged in the construction of dam. He also submitted that the question has also been considered by the apex Court, in fact, to a situation in regard to shrimps, prawns and lobsters appearing in the process without heads and tails thereof whether could be considered as a manufacture or production activity in regard thereto. The learned senior tax counsel also submitted that again in the same spirit, the apex Court had considered a situation as to whether in the processing of pineapples peeling the rough skin and cutting the fruit for the purpose of its subsequent packing whether any manufacture or production activity is involved. Suffice it to state that the attempt of the learned senior tax counsel was that once it is available through these four decisions of the apex Court to tell us what would be the nature of the activity, it has to be applied to the problem at hand and there is no scope for disturbing the principles declared by the apex Court. It is also submitted that there is no scope to find out special peculiarities in regard thereto. After giving our anxious thought to the submissions of the learned senior tax counsel, we feel that it would be of abundant benefit to us in dealing with the situation of identical character to consider with care and caution these four decisions of the apex Court. Naturally, we would start with the reverse chronological process by referring to the latest decision in the first instance. It is Budharajas case, dealing with a new industrial undertaking in backward areas, where the Supreme Court had an occasion to consider as to whether construction of a dam would be understood as manufacture or production of article in regard to a claim of the assessee therein for relief under s. 80HH of the IT Act, 1961.

In the first instance, the apex Court has dealt with the situation of interpretation of taxing statutes. A question is given that the words used in the concerned taxing statute take colour from the context and it is not possible to ignore the plain language, when the object is to be gathered on reasonable interpretation of language on taking colour in the context of the situation. The apex Court was considering this in regard to the association of the words manufacture and production in the context used in the statutory provisions of s. 80HH of the Act.

In fact, the apex Court has considered all the cognative related terms, such as manufacture, production, produce, article to understand the meanings thereof. It is observed in the process of reasoning that the test for determining whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognised in the trade as a new and distinct commodity. In this process of reasoning, reliance is placed by the apex Court on its earlier decision in Pio Food Products (supra).

Then the word production is considered to be of a wider connotation than the word manufacture. It is observed that while manufacture can be characterised as production, every production need not amount to manufacture. The word production or produce, when used in juxtaposition with the word manufacture, takes in bringing into existence new goods by a process which may or may not amount to manufacture. It also takes in all the byproducts, intermediate products and residual products which emerge in the course of manufacture of goods. It is also observed that the expressions manufacture and produce are normally associated with movable articles and goods, big and small, but they are never employed to denote construction activity of the nature involved in the construction of a dam or a building.

It is then the word article is taken up for consideration noting that the said word is not defined in the IT Act or the Rules and, therefore, must be understood in its normal connotation, in the sense in which it is understood in the commercial world. In the said process, it is observed that the word article cannot comprehend or take within its ambit a dam, a bridge, a road, a canal and so on.

In all these processes of reasoning, a warning has been given by the apex Court that temptation to adopt liberal interpretation advancing the purpose and object of beneficent provisions cannot be carried to the extent of doing violence to the plain and simple language used in the enactment. It is not possible and permissible to rewrite the section or substitute words of its own for the actual words employed by the legislature in the name of giving effect to the supposed underlying object.

We have carefully gone through the entire judgment in Budharajas case (supra). Although the apex Court was dealing with the claim under s. 80HH of the IT Act, 1961 at the instance of the assessee engaged in constructing a dam, we find that in the process of reasoning, the apex Court has placed reliance on its earlier decision in Pio Food Packers case (supra) which was a case with regard to levy of sales-tax, in the spirit that the meaning of the expression manufacture was considered earlier by the apex Court. Not content with this, we also find that it was the approach on the basis of the test determined in the said decision of Pio Food Packers case dealing with levy of sales-tax that the apex Court has followed the said test in its application to a claim under the IT Act. At page 423 of the report in Budharajas case, in fact, a passage from the earlier decision of the apex Court (Pio Food Packers case) at page 65 thereof, has been quoted as verbatim. We find that what is relied upon is the foundation laid by the said earlier decision that commonly, manufacture is the end result of one or more processes through which the original commodity is made to pass and to record thereafter that with each process suffered, the original commodity experiences a change and 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.

It is in this process, the word manufacture is understood as bringing into existence new goods by a process which may or may not amount to manufacture.

Thereafter, it is emphasised that all by-products, intermediate products and residual products which emerge in the course of manufacture of goods are also to be taken into consideration. Thereafter, the question is posed as to what does article mean ? Being conscious that the word article is not defined in the Act or in the Rules, the apex court has emphasised that therefore, the word article would have to be understood in its normal connotation - that the sense in which it is understood in the commercial world. In the context, it is observed that the word article is preceded by the words "it has begun or begins to manufacture or produce". A question is posed as to whether the word article comprehends and takes within its ambit a dam, bridge or a building.

Thus we find that the apex Court, in regard to the question that what should be understood with reference to the words manufacture, production, produce and articles, has even considered not only the decisions of other High Courts, but also the decisions of the House of Lords -Longhurst vs. Guildford Codalming & District Water Board (1961) 3 All ER 545.

In our judgment, practically, all what is needed as required to be applied to the factual matrix before us is available in the decision of Budharajas case. Although a claim of the contractor with regard to the provisions of s. 80HH of the IT Act, 1961 was required to be considered therein, in our judgment, that makes so difference to the situation.

A little earlier in Delhi Cold Storages case (supra), the apex Court had an occasion to consider the terms "manufacture or processing of goods" to determine as to whether the assessee could be understood as industrial company dealing with cold storage with regard to the direct question in regard thereto as to whether it would amount to process or processing in the context of the activity. The apex Court has observed that in common parlance, processing is understood as an action which brings forth some change or alteration of the goods or material subjected to the act of processing. This has been applied to the situation of the assessee-company being concerned with cold storage wherein vegetables, fruits and several other articles requiring preservation by refrigeration were stored. The apex Court ruled that the stored article could not be understood to have undergone a process which was the requirement within the meaning of s. 2(7)(c) of the Finance Act, 1973, leading to the ultimate conclusion that running a cold storage could not lead to the conclusion that the assessee-company was an industrial company.

It would be found that therein also, the apex Court had an occasion to refer to the decisions of various High Courts such as Calcutta High Court, Allahabad High Court and earlier decisions of the apex Court in Chowgule and Co. Pvt. Ltd. and Another Vs. Union of India (UOI) and Others, , yet in another sales-tax matter to find out the true meaning of the words "manufacturing and processing". In fact, a paragraph from the Chowgules case is found as quoted at page 659 of the report, again to emphasise the experience of some change as a result of the processing. The apex Court also has relied on the said judgment accepting the proposition with regard to the experience of a change emphasising that the said aspect also received endorsement elsewhere. In fact, we find from the judgment that the Allahabad and the Calcutta High Courts decisions had been overruled taking a contrary view relating to the process of air-conditioning as a process of storing articles showing a change in regard thereto. Thus we find that the same principle has been considered with regard to the cold storage activity of the assessee under the IT Act with the aid of its earlier decision dealing with the liability under the Sales-tax Act.

Still going back in the process, is a third decision of the apex Court in Pio Food Packers case (supra). The apex Court in that case was concerned with a question of purchase tax deductions in relation to the activity of processing of pineapple fruits into pineapple slices for being sold in sealed cans. It is specifically observed that when pineapple fruit is processed into pineapple slices for the purpose of being sold in sealed cans, there is no consumption of the original pineapple fruit for the purpose of manufacture and the case does not fall within s. 5A(1) (a) of the Kerala General Sales-tax Act, 1963. The apex Court has observed that although a degree of processing is involved in preparing pineapple slices from the original fruit, the commodity continues to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it. In the process of reasoning, the apex Court has also emphasised that 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 there may be several stages of processing and a different kind of processing at each stage. What is emphasised is that with each process suffered, the original commodity experiences a change and 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. It is emphasised that although it has undergone a degree of processing, it must be regarded as still retaining its original identity and the fact as to whether the original identity is retained, the situation has to be appreciated in the light of what is understood in the context of the commercial character of the nature of the process, meaning thereby what is necessary to understand is as to how the commodity is understood, whether different from the original or an aspect of the same original commodity in terms of the concerned commercial commodity in the context of understanding the concerned commercial commodity. Thus we find from the said judgment the application of the well-known accepted principles to the factual matrix. In the process of discussion, the apex Court has also considered the situation relating to raw tobacco necessary in the process of manufacture of bidi. It has also considered the situation of raw hides and skins which constituted a different commodity from dressed hides and skins with different physical properties. It has also considered the question of raw tobacco manufactured into chewing tobacco as well as paddy dehusked into rice, in order to deal with the situation and contention where the original commodity would appear to have undergone a change as a result of the degree of processing. A situation of hydrogenated groundnut oil whether to be regarded as groundnut oil or not as well as bristles plucked from pigs, boiled, washed with soap and other chemicals and sorted out in bundles according to their seize could be considered as the same commercial commodity as pigs bristles has also been considered leading to the proposition enunciated hereinbefore.

The fourth decision of the apex Court in Sterling Foods case (supra) relating to the applicability of s. 5(3) of the Central Sales-tax Act statutorily requiring that the goods which are purchased by the assessee for the purpose of complying with the agreement or order for or in relation to export, must be the same goods which are exported out of the territory of India. In order to understand as to whether the goods exported are the same, the apex Court was concerned with the situation as to whether the said goods that are exported changed their identity so that commercially they can no longer be regarded as the original goods, but instead become a new and different kind of goods. The situation of processed or frozen shrimps, prawns and lobsters was taken up for consideration as to whether they could be commercially regarded as the said commodity as shrimps, prawns and lobsters. Again, in the process of reasoning, the apex Court has answered the question that they can still go under the description of shrimps, prawns and lobsters only as raw shrimps, prawns and lobsters even though their heads and tails are separated for the purpose of storage and preservation. This was with reference to the provisions of the Karnataka Sales-tax Act, 1957. It is necessary to note that the apex Court here also has drawn from the observations in the context with approval made by it earlier in Pio Food Packers case. It is observed that if dressed and frozen chicken was a commercially distinct article from the original chicken, it must follow again with the reasoning that the processed frozen shrimps, prawns and lobsters cannot be regarded as commercially distinct from the raw shrimps, prawns and lobsters.

Going though the above four decisions of the apex Court, there cannot be any doubt that whether the Court is to consider the proceedings under the Sales-tax Act or proceedings under the Central Sales-tax Act or proceedings with regard to the relevant statutory provisions under the IT Act, some of the features that are available from the above decisions of the apex Court would govern and rule the situation and it is not possible to understand the situation in the meaningful approach, especially in the context of specific question in regard thereto given by the apex Court in Budharajas case.

It will have to be observed that the meaningful approach cannot do violence to the plain language. We emphasise that what is manufactured and/or produced has to be understood on the basis of the subsequent word taking colour from the earlier word. In this situation, it will have to be understood that it would be the duty of the Court as to whether in regard to the concerned process, may be from stage to stage, as required in the concerned process, is there any change of such a character that at that stage of the change, a commercially different article is available. In other words the process concerned in the production of final product is such that during its pathway, there was no situation of change in the context of the commercial necessity as has been emphasised. The situation cannot be understood even as production related to the process of manufacturing taking obvious colour therefrom. The Court also will have to consider the situation right from the point of origin down to the final stage in the process under consideration to find out as to whether at any time any change appeared and from stage to stage in regard thereto, the change was such that is related to a commercially distinct article in the process with reference to the stage under consideration. If, on the basis of the examination of the factual matrix before it, the Court finds that in the process at different stages a change was perceptible in such a way that commercially from stage to stage different article appeared and the process was terminated by the final product, the real article, meaningful in the context of its commercial character. In our judgment, whether it is a question of levy of sales-tax, whether it is a question of deduction or claim under the IT Act, 1961 or may be in regard to a claim for levy of excise, the situation would not alter with regard to the application of the above principles, which are declared by the above four decisions of the apex Court. Therefore, it is not permissible for us to consider otherwise.

We have already spread over the factual matrix in necessary details with the benefit of the entering of a finding of fact by the Tribunal in regard to the asst. yr. 1978-79 emphasising its finality. Carefully considering the process, we find that all the nine stages of the process do not show any kind of change or a commercially different commodity is not seen to be passing through the various stages of the process. It cannot be ignored that in common parlance, coffee means, coffee powder, a beverage consumed as either a hot or cold drink. At no stage, this colour combination between manufacture and production has its manifestation. We have already observed that the entire activity that is to be found from the factual matrix spread over by the Tribunal as a factual situation would not show that the activity can be understood either as manufacture or production in accordance with the law declared in the above four decisions of the apex Court. We would like to note that the judgment of the Tribunal dt. 18th July, 1994 recording the factual situation has been the basis, for the reasons already recorded by us in regard thereto. It is this situation that closes the gates with regard to the finding of fact in regard to the situation may be with regard to another assessment year. We emphasise this because the finality of the situation rules out any necessity for a remand, again for the same purpose.

For all the above reasons, we answer the question in favour of the Revenue and against the assessee in both these references.