Judgment ( 1. ) THE Division Bench while considering the Appeal of the State Government against the Order dated 4-5-2006, passed by the learned Single Judge in Writ petition No. 1169/2004, has referred the following question for consideration of larger Bench in view of the cleavage of opinion between decisions rendered by the Full Bench, the Division Bench and the Single Bench :-"whether the Coal Ash is a part of Cinder and covered by the term Coal in Entry No. 22 in Part- V of Schedule- II of the commercial Tax Act or the said commodity would be taxable under Entry 39 in Part- IV"? ( 2. ) INITIALLY a Three Judge Bench was constituted to consider the said question, but the Bench on being apprised that the question also involves the legality of the decision of the Full Bench in Hukumchand Mills Ltd. Vs. Commissioner of Sales Tax, M. P. , [1988] 71 STC 101, on being requested by the full Bench of Three Judges, Honble the Chief Justice has constituted this Bench comprising Five Judges. ( 3. ) THE appeal before the Division Bench was filed assailing the interpretation of Entry No. 22 in Part V of Schedule II of the M. P. Commercial tax Act, 1994. Vide judgment impugned, the learned Single Judge held that the rate of tax on the sale of Coal Ash would be the same as that of Coal and not the rate prescribed under the residuary entry. Since the said judgment militated against the ratio of the judgment of Hukumchand Mills (supra), the State has preferred this appeal in which, for authentic enunciation of the legal position, the case has been referred to this Five Judge Bench. ( 4. ) FOR better grasp of the facts, it is necessary to refer to the order passed by the Division Bench seeking opinion of the Larger Bench on the question aforesaid. The respondent is a Trader who deals in sale and purchase of "coal ash". According to the case of the respondent-petitioner, the partly burnt coal, which comes out of boiler is extinguished by water and thus Coal Ash is derived. The Dictionary meaning ascribed to Coal includes, "coke", and also "cinder", "churi", and "coal Ash". The respondent is a Trader who deals in sale and purchase of "coal ash". According to the case of the respondent-petitioner, the partly burnt coal, which comes out of boiler is extinguished by water and thus Coal Ash is derived. The Dictionary meaning ascribed to Coal includes, "coke", and also "cinder", "churi", and "coal Ash". In order to get the disputed question decided with regard to the position of the Coal Ash (Cinder), under Entry 22 of Schedule II part V of the Act, the petitioner (respondent) made an application under the provisions of Section 68 for determination and by order dated 6-9-2004, following the decision of the Full Bench in Hukumchand Mills (supra), the Commissioner came to the conclusion that Coal Ash would not fall within the nomenclature "coal" or "coke" and that the commodity would be exigible to tax under the residuary Entry No. 39 in Part IV of Schedule II of the Commercial Tax Act. Finding that under the provisions of law, the decision of the Commissioner was binding on all subordinate Authorities, the respondent filed the Writ Petition which was allowed by the learned Single Judge against which the present appeal has been filed. ( 5. ) DURING hearing of the appeal, reference was made to the decision in M/s. Burn Standard Company Ltd. Vs. Commissioner of Sales Tax, (1993) 17 curr. T. J. 387 which took the view that Coal Ash should be treated as different from Coal and, therefore, taxed under the residuary clause. Reference was also made to the decision of the Full Bench of this Court in M/s. Hukumchand Mills ltd. (supra) and M/s. Kalyan Mills Vs. Commercial Tax Commissioner, [1999] 32 VKN 214 to the effect that Coal Ash of Nepa Limited Company is a bye-product of Coal and will be taxed under Entry 39 of Part IV of Schedule II of the m. P. Commercial Tax Act, 1994. The State Counsel, however, pointed out that the judgment in Kalyan Mills (supra) strongly relied upon by the learned Single judge was of the Board of Revenue and the other cases namely; S. Kumar Ltd. Vs. Addl. Commissioner of Sales Tax and others, (2004) 4 STJ 785 (MP) and commissioner of Sales Tax Vs. The State Counsel, however, pointed out that the judgment in Kalyan Mills (supra) strongly relied upon by the learned Single judge was of the Board of Revenue and the other cases namely; S. Kumar Ltd. Vs. Addl. Commissioner of Sales Tax and others, (2004) 4 STJ 785 (MP) and commissioner of Sales Tax Vs. Modi Spinning and Weaving Mills, Modinagar, (2004) 4 STJ 689 (All) expressing that Coal Ash was different from Coal because coal is a mineral, clearly subscribed to the view of the said Full Bench decision in Hukumchand Mills (supra ). It was stated that in view of the decision of the full Bench which clinches the issue, there was no room for speculation about the position of the Coal Ash and its taxability under the residuary entry. It was also pointed out that the decision in S. Kumar Ltd. (supra) was that of a Single bench which cannot prevail over the decision of the Full Bench. Attention was also invited to the case of Commissioner of Sales Tax Vs. Samrathmal Dhoolchand, (Miscellaneous Civil Case No. 253 of 1967) decided on 23-12-1969 and Binod mills Co. Ltd. , Ujjain Vs. Commissioner of Sales Tax, M. P. [1972] 29 STC 413. We may emphasise that prior to the bringing into force of the Commercial Tax act, the Entry 22 in Part V of Schedule II of the M. P. General Sales Tax Act reads as under :- " (1) Coal including Coke in all its form, but excluding charcoal". The Entry, however, was modified in the M. P. Commercial Tax Act (the act, for brevity) to the following effect :-" (1) Coal including Coke in all its form and Charcoal". ( 6. ) IT was in this context that it was stated by the Division Bench that since the Entry in the Act prevailing at the relevant time refers to Coal including coke in all its form and it is not stated that Coal Ash and Coal is "charcoal" or even remotely a component of Charcoal, the decision in Hukumchand Mills (supra) will hold the field. However, in view of the diverge views in the other decisions, it was observed that the appeal cannot be decided by the Division bench without an authentic enunciation on the subject, especially the marginal change of the definition in the subsequent Act. However, in view of the diverge views in the other decisions, it was observed that the appeal cannot be decided by the Division bench without an authentic enunciation on the subject, especially the marginal change of the definition in the subsequent Act. In this context, the question referred to by the Division Bench has been reproduced hereinabove. However, before embarking upon the said exercise, it is necessary to refer to the decisions of this court on the subject rendered prior to the decision in Hukumchand Mills (supra)and subsequent thereto. In Binod Mills (supra), a Division Bench comprising p. K. Tare and G. P. Singh, JJ, considered whether Coal includes Coal Ash and it was observed that the Entry Coal including Coke in all its form had already been interpreted in the case of Samrathmal Dhoolchand (supra ). Thus, it is only by reference to the earlier decision that conclusion was recorded. It is, thus, necessary to examine the decision in Samrathmal Dhoolchand (supra ). ( 7. ) IN the case of Samrathmal Dhoolchand, the question considered by the Division Bench was as to whether Coal Ash is Coal and comes under entry No. 1 Part III of Schedule II of the Act or whether it comes under Part VI of Schedule II of the 1958 Act. It was conceded before the Bench that Coal Ash is called "cinder" in commercial parlance and in view of the Dictionary meaning given by Webster, Cinder being a piece of partly burnt Coal capable of further burning without flame, and being partly burnt combustible, the Entry would include Coal Ash. We find it pertinent to point out that in the judgment rendered in Hukumchand Mills, these decisions have not been considered. ( 8. ) IN Hukumchand Mills, the primary question that was mooted before the Court was as to whether the Tribunal was right in holding that unserviceable items of stores which comprised discarded assets like scrap, dyes, chemicals, broken iron hoops, obsolete machinery, Coal ash, etc. , were exigible to tax ? It is, therefore, clear that the Judges dealing with the matter in the Full bench had no occasion to focus attention on the question whether the Coal Ash was included within the entry of Coal, indeed, even the entry has not been adverted to. It is only in paragraph No. 28 that it has been observed as follows :- "28. It is, therefore, clear that the Judges dealing with the matter in the Full bench had no occasion to focus attention on the question whether the Coal Ash was included within the entry of Coal, indeed, even the entry has not been adverted to. It is only in paragraph No. 28 that it has been observed as follows :- "28. As regards Coal Ash, in our opinion, the Tribunal has rightly held that Coal is converted into Coal Ash after it is burnt in boilers and that in this way, Coal undergoes a manufacturing process before becoming Coal Ash and is in fact a by-product of Coal so that Coal and Coal Ash cannot be treated as exactly the same goods. " ( 9. ) WE may clarify that the principal question which the Bench was addressing itself to was only with regard to the exigibility to tax of the items stated in the question including Coal. We are, therefore, of the view that since the observations contained in paragraph 28 of the report of the judgment of the full Bench in Hukumchand Mills (supra) related only to the exigibility of tax of unserviceable items, the question decided in the passing is obiter and for the reasons that follow, the opinion as regards Coal Ash not being Coal is not the correct view of the matter when examined apposite the provisions and the law on the subject. ( 10. ) THE criteria for interpretation, construction and import of the fiscal statute has already been settled by the Supreme Court in various decisions. It would, therefore, be advantageous to first refer to the decisions laying down the parameters and then undertake the exercise to find whether on the anvil of the criteria laid down by the Apex Court and the other High Courts, the Entry concerned, would engulf within the meaning of Coal, the Coal Ash/cinder. In commissioner of Income Tax, Madras Vs. Kasturi and Sons Ltd. , ( AIR 1999 SC 1275 ) it is held that a taxing statute has to be strictly construed and wherever the legislature intended to refer to payment in kind other than cash or money, it has taken care to provide specifically therefor. In the Constitutional Bench decision of the Apex Court in A. V. Fernandez Vs. In the Constitutional Bench decision of the Apex Court in A. V. Fernandez Vs. The State of Kerala ( AIR 1957 SC 657 ), it has been observed that in considering fiscal statutes and in determining the liability of a subject to tax, one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of law. If the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by any analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. Since the above judgment is of the Constitutional Bench, we find it apt to remain within the framework laid down therein for interpreting the Entry in question. ( 11. ) IN M/s. Saraswati Sugar Mills Vs. Haryana State Board and others, air 1992 SC 224 , while considering whether the Sugarcane is Vegetable, it was observed that one has to look merely at what is clearly said. There is no room for any intendment and there is no room for bringing within the provision of the Act anything by implication. The discussion in paragraph 21 of the said report, reads as follows.- "21. Construction of words and meaning to be given for such words shall normally depend on the nature, scope and purpose of the statute in which it is occurring and to the fitness of the matter to the statute. The meaning given to the same word occurring in a social security measure of a regulating enactment may not be apposite or appropriate when the same word is interpreted with reference to a taxing statute. The Cess Act is a fiscal enactment. In the context in which the word vegetable is used in Entry 15 vegetable product means product of or made of or out of vegetable. vegetables as understood in common parlance are not products of manufacture unless we say that agriculture is an industry for certain purposes and vegetables are products of that industry. In order to bring an industry within any of the entries in schedule I it has to be seen what is the end product produced by that industry. Sugarcane is not a vegetable though it may be an agricultural product. In order to bring an industry within any of the entries in schedule I it has to be seen what is the end product produced by that industry. Sugarcane is not a vegetable though it may be an agricultural product. If the botanic meaning of vegetable as referring to any and every kind of plant life is to be given then some of the industries listed in Schedule I like Paper Industry and textile Industry and even Chemical Industry which are covered by other entries could also be brought within Entry 15. The word vegetable in the context does not attract the botanic meaning. The sugar manufacturing industry do not, therefore, come within entry 15 of Schedule I of the Cess Act. " ( 12. ) IN M/s. Geo Millar and Co. Pvt. Ltd. Vs. State of M. P, AIR 2004 sc 3552 , the Supreme Court has stated that it is well settled position of law that in interpreting taxing statutes, one must have regard to the strict letter of law. If the person sought to be taxed comes within the letter of the law he must be taxed. However, apart from the interpretation of statute, in number of cases, it has been laid down that the commodity should be considered from the commercial sense and pedantic approach has been deprecated. ( 13. ) IN Southern Gas Ltd. Vs. State of Kerala, (2005) 139 STC 504, the Two Judge Bench of the Kerala High Court has held that goods must be classified according to their popular meaning or as they are understood in their commercial sense and not according to the scientific or technical meaning. The test is, how the product is identified by the class or section of people dealing with or using the product and when the statute itself does not contain any definition, commercial parlance would assume importance. ( 14. ) WHILE the learned Advocate General has insisted that the Entry should be strictly construed in the light of the judgments of the Supreme Court that the words used should be interpreted in the literal sense and nothing should be added to the legislative intent which is not reflected by the Entry concerned, unless there is an apparent ambiguity, the contention of the learned amicus curiae, mr. G. M. Chaphekar, Sr. G. M. Chaphekar, Sr. Advocate,per contra, is that the common sense cannot be abdicated and the article should be considered as known in commercial world and in common parlance. We are conscious of the fact that if the Entry is wide enough to embrace various other articles and the same is identified as such in the commercial world, it can safely be inferred that in providing for coal and coke and even while excluding charcoal, as was the case under the repealed act, the Court can come to the conclusion that the expression "coal" would include "charcoal/cinder". It is in this context that now we proceed to examine other decisions to come to the conclusion with regard to the exigibility of tax of coal Ash/cinder under Entry 22 or under Entry 39 (Residuary ). ( 15. ) WE have referred to the Entry under the erstwhile MP. General sales Tax Act, 1958 and the M. P. Commercial Tax Act, 1994. In order to appreciate the legal position, we may refer to the case of the Full Bench of this court in Hukumchand Mills (supra ). As already pointed out, Hukumchand Mills has not taken into consideration the earlier cases namely; Commissioner of Sales tax Vs. Samrathmal Dhoolchand, Miscellaneous Civil Case No. 253 of 1967, decided on 23-12-1969 and Binod Mills Co. Ltd. , Ujjain Vs. Commissioner of sales Tax, M. P. , (1972) 29 STC 413 . A Three Judge Bench of the Supreme Court has ruled in State of Maharashtra Vs. Bradma of India Ltd. , (2005) 140 STC 17 that a Special Entry in the Schedule over-rides General Entry and, therefore, resort to the Residuary Entry can be only when a liberal construction cannot cover the goods in question. The discussion contained in paragraph 7 of the report reads as extracted below :- "7. We are of the opinion that the High Court was wrong. Both the Tribunal and the High Court commonly enunciated the principle that a Specific Entry would override a General Entry. In addition we would add, and as has been held in Collector of central Excise Vs. Wood Craft Products Ltd. , (1995) 3 SCC 454 , 462, resort has to be had to the residuary heading only when a liberal construction by the specific heading cannot cover the goods in question. In addition we would add, and as has been held in Collector of central Excise Vs. Wood Craft Products Ltd. , (1995) 3 SCC 454 , 462, resort has to be had to the residuary heading only when a liberal construction by the specific heading cannot cover the goods in question. The language of Entry 97 (b) clearly shows, by use of the phrase "other than those specified elsewhere" that it is not only a Residuary Entry but also that electronic systems, instruments, etc. , may be classified under other entries. Entry 90 on the other hand does not contain any words of limitation. The items mentioned therein would cover every species thereof irrespective of the mode of their operation. Cash registering machines are specifically mentioned. In the absence of any limitation or qualification as to the different kinds of cash registering machines, there is no reason to read in any such qualification and limit the entry to particular kinds of cash registering machines. It is significant that by contrast, data processing machines have expressly excluded computers. Were it not so excluded, computers would have also fallen within Entry 90. In fact computers are separately dealt with in Entry 97 (a ). But the exclusion of computers from data processing machines would indicate that the items mentioned in Entry 90 are generic covering all species of such items. Given the language of the two Entries we fail to understand how the High Court could have come to the conclusion that Entry 97 (b) was the Specific Entry and that Entry 90 was the General Entry. Such an interpretation goes against the express language of the two Entries. (Emphasis supplied) ( 16. ) IN Commissioner of Sales Tax, Madhya Pradesh Vs. Jaswant Singh charan Singh, (1966) 17 STC 527 , a Division Bench of this Court, comprising p. V. Dixit, CJ. and K. L. Pandey, J. , ruled that the word "coal" occurring in a fiscal statute has to be understood in its popular and commercial sense. The word "coal" as used in commerce, includes "charcoal" and, therefore, "charcoal" is covered by Entry No. 1 of Part III of Schedule II. It was observed in paragraph 3 of the report as follows :- "3. There is no doubt that the word "coal" as originally understood in England was sufficiently wide to include Charcoal. The word "coal" as used in commerce, includes "charcoal" and, therefore, "charcoal" is covered by Entry No. 1 of Part III of Schedule II. It was observed in paragraph 3 of the report as follows :- "3. There is no doubt that the word "coal" as originally understood in England was sufficiently wide to include Charcoal. But there its use in that sense has become obsolete. The usual sense in which it is now used connotes a firm, brittle (generally black)carbonaceous rock derived from mines. This will be clear from any standard dictionary. The Board has referred to the Blackies concise Dictionary. We may mention the Chambers Twentieth century Dictionary which gives the meaning of Coal as "a firm brittle, generally black combustible carbonaceous rock derived from vegetable matter (the usual sense now ). " But in India the english word "coal" as used in commerce includes Charcoal. It is now well established that the word "coal" occurring in a fiscal statute has to be understood in its popular and commercial sense: his Majesty the King Vs. Planters Nut and Chocolate Company limited, K. V. Varkey Vs. Agricultural Income Tax and Rural Sales tax Officer and Madhya Pradesh Pan Merchants Association, santra Market, Nagpur Vs. State of Madhya Pradesh (Sales Tax department ). We derive further support for this view from the fact that sales of both Coal and firewood have been taxed at 2 per cent and there does not appear to us to be any good reason for treating Charcoal differently. In our opinion, Charcoal is covered by Entry No. 1 of Part III of Schedule II of the Act and sales of charcoal are taxable at 2 per cent". ( 17. ) WE have already referred to the Entry under the M. P. General sales Tax Act, 1958 which specifically excluded Charcoal from the definition of coal. It, therefore, follows that non-mention of a commodity in an Entry does not by itself exclude the articles which it impliedly incorporates by choosing the all inclusive definition such as Coal including Coke in all its forms. The said decision was considered by the Supreme Court in The Commissioner of Sales tax, Madhya Pradesh, Indore Vs. Jaswant Singh Charan Singh, AIR 1967 SC 1454 . It was observed that the popular meaning and not scientific or technical meaning should be adapted. The said decision was considered by the Supreme Court in The Commissioner of Sales tax, Madhya Pradesh, Indore Vs. Jaswant Singh Charan Singh, AIR 1967 SC 1454 . It was observed that the popular meaning and not scientific or technical meaning should be adapted. Coal, as per Blackies Concise Dictionary, means a piece of wood or other combustible substance burning or charred; Charcoal, a cinder; usually a solid black substance found in the earth, largely employed as fuel, and formed from vast masses of vegetable matter deposited through the luxurious growth of plants in former epochs of the earths history. The observation contained on the subject in paragraph 7 of the report read as under :-" (7) There is another aspect also from which Entry I of Part III may be considered. Section 14 of the Central Sales Tax Act, 1956 declares certain goods as goods of special importance in inter-State trade or commerce. One of these is coal including Coke in all its forms. Section 15 of that Act provides that the State legislatures in their respective sales tax laws can impose only 2 per cent tax on these goods. That is why in Entry I of Part III coal is stated to include coke in all its forms and Coal including coke in all its forms is charged at 2 per cent tax. The State legislature, however, knew or must be presumed to know that firewood is also used by the people as fuel, but would not fall within that Entry, and, therefore, provided 2 per cent tax on it by a separate entry, namely, Entry 8 in Part III. Having taxed Coal and firewood at 2 per cent, it does not appear to be possible that the Legislature deliberately left out Charcoal from the connotation of the word coal and left it to be charged at 4 per cent under the residuary Entry I in Part VI. The object of the Legislature clearly was to tax Coal and firewood as articles used as fuel and did not make a separate Entry in regard to charcoal as it must be aware that coal, understood in ordinary and commercial sense, would include charcoal. The object of the Legislature clearly was to tax Coal and firewood as articles used as fuel and did not make a separate Entry in regard to charcoal as it must be aware that coal, understood in ordinary and commercial sense, would include charcoal. Had that not been so, instead of leaving it to be dealt with under the residuary item, it would have enacted a separate Entry just as it did in the case of firewood which it knew would not in its ordinary meaning fall under the term coal. In this view, the contention of Counsel for the State must be rejected". ( 18. ) FROM the above decisions it is luculent that what is intended by coal and its forms is the combustible and burning article. It is clear that when a distant cousin like Charcoal has been treated as Coal, it would be a travesty to deprive the Cinder (Coal Ash) of the lower marginal tax by treating it otherwise, especially when it is a part of the Coal which comes out of the boiler on account of having become less combustible and unfit for use in the boiler, but retaining all properties of Coal. It has not been denied that insofar as Cinder is concerned, it contains sufficiently large pieces of Coal and, therefore, there is no transformation or a manufacturing process. ( 19. ) WE may now hasten to consider the arguments raised on the basis of various other decisions of the Supreme Court and this Court. In India Carbon ltd. Vs. Superintendent of Taxes, Gauhati and others, AIR 1972 SC 154 , it was observed by the Supreme Court that the language of the Entry is wide and Coal has been stated to include Coke in all its forms. It was stated that Coke is the refuse left after destructive distillation of Coal, but has same properties, more or less. Paragraph 5 of the report says :- "5. We are wholly unable to agree with the reasoning or the conclusion of the High Court with regard to the ambit and scope of Clause (i) of Section 14 of the Central Act. The language is clearly wide and Coal has been stated to include coke in all its forms. It is not denied that petroleum coke is one of the forms of coke. The language is clearly wide and Coal has been stated to include coke in all its forms. It is not denied that petroleum coke is one of the forms of coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions Coal only and then declares that that word shall include coke in all its forms. That shows that the object of the words which follow Coal is to extend its meaning. In the writ petition it was stated in Para 2 that coke is the refuse left after destructive distillation of coal, shale or oil and is called petroleum coke, metallurgical coke or pitch coke to indicate its source or origin; but all these are carbonaceous material used for the same purpose and having same properties, more or less, main being - Mixed Carbon,- Volatile Matters, - Ash and -Moisture,". ( 20. ) A crucial question that has been raised by the learned Advocate general is based on the decision of I. T. C. Bhadrachalam Paper boards Limited vs. State of Andhra Pradesh, (1999) 114 STC 58 (AP) on which heavy reliance has been placed by the Revenue. Though in answering the question No. 1, the honble Andhra Pradesh High Court has come to the conclusion that Coal Ash (Cinder) is a different commodity and would, therefore, be exigible to sales tax, with respect, it is only with regard to the question Nos. 2 and 3 that the matter was considered from different perspective. It is clear that what was agitated before the Honble High Court was whether Coal Ash was a product of the petitioners industrial unit and whether the sale of Coal Ash by the petitioner was eligible for exemption under G. O. Ms. No. 606, dated 9-4-1981. It was contended by the Revenue that the petitioner-Company was purchasing kiln and using it as raw-material for its manufacturing activity but not as fuel which had found favour with the Tribunal against which revision was filed. Use as raw-material of a particular commodity is distinct and separate from what is obtained by use of Coal in boilers. Thus, we are of the view that the ratio of the case, heavily relied upon by the learned Advocate General, does not help the Revenue. Use as raw-material of a particular commodity is distinct and separate from what is obtained by use of Coal in boilers. Thus, we are of the view that the ratio of the case, heavily relied upon by the learned Advocate General, does not help the Revenue. The learned Advocate General has further submitted that the said decision of the high Court was considered by the Supreme Court in ITC Bhadrachalam Paper boards Ltd. Vs. State of A. P. , (2002) 126 STC 541 . We have considered the argument of the learned Advocate General and gone through the said judgment. Apropos the question No. 1, their Lordships observed that insofar as the "coal" and "coal Ash" were concerned, they were commercially two commodities and, therefore, the sale of "coal Ash" amounted to first sale in the hands of the petitioner-Company. It was in this context that the sale of Coal Ash by the petitioner-Company was treated as first sale at the hands of petitioner-Company treating Coal Ash as a different commodity. On due consideration of the contention of the learned Advocate General, we may point out that the exemption was being sought in respect of the use of timber as raw-material for the manufacturing activity but not as fuel which did not find favour with the Tribunal. It was observed that the Tribunal had found that the purpose of using the same as raw-material was for manufacturing paper and paper boards and such purchase was, therefore, to be treated as unclassified goods. Even if it is construed for the sake of argument that the Entry under which the commodity was required to be taxed was similar to that in the Madhya Pradesh Legislation, the question that timber purchased was a raw-material for manufacturing activity, was the question which has been considered and decided in the said case. Their Lordships have considered the case of timber having been used as raw material (fuel) and the resultant Coal ash. It was, therefore, not a case of burning of Coal, a mineral, in the boilers and collection of the Cinder containing big pieces of Coal and retaining substantially the identity of Coal. In common parlance when the Cinder is used, it is understood as Coal. ( 21. It was, therefore, not a case of burning of Coal, a mineral, in the boilers and collection of the Cinder containing big pieces of Coal and retaining substantially the identity of Coal. In common parlance when the Cinder is used, it is understood as Coal. ( 21. ) WE may also point out that Coal Ash/cinder is purchased in the market for the purpose of burning and although the Cinder Loses its property of burning in flames and to reach the temperature requisite in boilers, it can be used in other activities as a fuel for heating/burning. Since properties are retained, which may not be the case as considered by the Supreme Court in ITC bhadrachalam Paper Boards Ltd. (supra), we are of the view that the case relating to the exemption under the Andhra Pradesh Sales Tax Act has no bearing over the subject matter before us. The perspective from which the case was considered was as to whether the Cinder was a product of the Company entitled to exemption. ( 22. ) WE may now digress to consider the parallel examples contained in relation to the other goods. The Supreme Court in Commissioner of Sales Tax, up. Vs. Lai Kunwa Stone Crusher Pvt. Ltd. , (2006) 8 STJ 658 (SC) has ruled that stone gitti (metal) being smaller article of stone, cannot be treated separately. In view of the said decision and perception that smaller articles of the same article cannot be treated differently, we are of the view that Coal Ash/cinder, by whatever name called in commercial world and in common parlance, being smaller pieces of Coal, retaining the properties of the Coal and used as Coal in other commercial activities, cannot be denuded of its original properties and birth marks and classified as an article different from the parent article. The status of Cinder was further pronounced upon in the Union of India Vs. Ahemdabad Electricity Co. Ltd. and others, (2003) 11 SCC 129 , the commodity cinder was described as follows :- "5. Cinder is obtained as a result of burning Coal in boilers and furnaces in factories. When Coal is fully burnt it is reduced to ash. When it is not fully burnt, it leaves pieces behind. Such pieces of unburnt or partly burnt Coal are called Cinder. Cinder loses its capacity to produce flame. Cinder is obtained as a result of burning Coal in boilers and furnaces in factories. When Coal is fully burnt it is reduced to ash. When it is not fully burnt, it leaves pieces behind. Such pieces of unburnt or partly burnt Coal are called Cinder. Cinder loses its capacity to produce flame. That is why it is of no use in the boiler and is left out. Since it is left with some combustible value, it is described as inferior quality Coal". (Emphasis supplied) ( 23. ) WE, therefore, hold that the "coal Ash" is "cinder" and covered by the term "coal" in Entry No. 22 in Part V of Schedule II of the Commercial tax Act and, therefore, it is not exigible to tax under Entry No. 39 in Part IV. The corresponding Entry in the repealed Act shall be construed accordingly in relation to the matters pending under the said Act. ( 24. ) TO conclude, we are of the considered view that the decision rendered by the Full Bench of this High Court in Hukumchand Mills (supra) is de hors the earlier decisions and the finding has been arrived at without the cogent and relevant material being on record of that case. Under these circumstances, we find ourselves unable to subscribe to the view expressed therein with regard to Cinder (Coal Ash) being a different commodity from its parent coal. The said decision is accordingly over-ruled only insofar as it holds that cinder is not Coal. The decisions of the learned Single Judge in W. P. No. 262/ 1998 and W. P. No. 1169/2004, assailed in the above appeals, are upheld but it is made explicit that the decision in S. Kumar Ltd. , (2005) 1 MPLJ 352 deals only with the taxability which has now been rendered redundant. The decision in mansingh Ka Oil Mills Pvt. Ltd. , Vs. Addl. Regional Asstt. Commissioner of sales Tax, Khandwa and another, (M. P. No. 1891/1983, decided on 8-9-1992)takes the correct view, though it is based on concession. The view expressed in samrathmal and Binod Mills (supra) is, accordingly, approved. ( 25. ) SINCE nothing remains to be decided in both these appeals, they are dismissed with no order as to costs.