JUDGMENT N. KUMAR :- Admit. With the consent of the parties, the appeal is taken up for final disposal and disposed of by this order. The assessee is a limited company registered both under the Karnataka Value Added Tax Act, 2003 (hereinafter for short referred to as, "the Act") and the Central Sales Tax Act, 1956. The assessee is engaged in the manufacture and sale of animal feed and feed supplements. During the years 2005-06 and 2006-07 (up to October 2006), the assessee effected sales of various animal feed and feed supplements. The case of the assessee is, the product di-calcium phosphate (animal feed grade) is normally used by the assessee in the manufacture of animal feed. When the assessee had surplus stock of di-calcium phosphate (animal feed grade), they sold the same to their sole selling dealer who in turn sold the same to manufacturers of animal feeds only. According to the assessee, the said product is classified under the First Schedule to the Act and, therefore, it is not liable to tax under the Act. The Assistant Commissioner of Commercial Taxes (Audit) passed an order under section 39 of the Act classifying the product di-calcium phosphate (animal feed grade) at entry No. 51 of the Third Schedule to the Act read with serial No. 62 of the notification dated April 30, 2005. Aggrieved by the same, the assessee preferred an appeal to the Joint Commissioner of Commercial Taxes (Appeals) under section 62 of the Act. The first appellate authority modified the order holding that the product di-calcium phosphate sold by the assessee is classifiable under entry 5(i) of the First Schedule to the Act. The Revenue did not prefer any appeal against the said order. However, the Additional Commissioner of Commercial Taxes, Zone II, Gandhinagar, Bangalore, in purported exercise of his power under section 64(1) of the Act revised the order, set aside the same and restored the order of the Assistant Commissioner of Commercial Taxes (Audit). Being aggrieved by the same, the assessee is in appeal before this court. However, the Additional Commissioner of Commercial Taxes, Zone II, Gandhinagar, Bangalore, in purported exercise of his power under section 64(1) of the Act revised the order, set aside the same and restored the order of the Assistant Commissioner of Commercial Taxes (Audit). Being aggrieved by the same, the assessee is in appeal before this court. The learned counsel for the appellant assailing the impugned order passed in revision by the Additional Commissioner contended firstly that, the preconditions for exercise of power under section 64 do not exist in this case and, therefore, the order passed by the Additional Commissioner is one without jurisdiction and the impugned order is liable to be set aside on that short ground. Secondly he contended on the merits, that di-calcium phosphate (animal feed grade) purchased by the assessee is for the manufacture of animal feed, it is a food supplement. Therefore, it falls under item No. 8 of the First Schedule. Though in the Third Schedule at serial No. 62 phosphinates, phosphonates, etc., are included, the said Schedule applies to industrial inputs and packing materials and, therefore, the said Schedule is not attracted. When the first appellate authority following the judgment of the apex court has granted benefit to the assessee, it is not open to the revisional authority to interfere with the said finding on the ground there is yet another judgment of the apex court which has taken a contra view. According to him, the judgment relied on by the Additional Commissioner is also helpful to the assessee and does not support the case of the Revenue and, therefore, he submits even on the merits the impugned order requires to be set aside. Per contra, the learned counsel for the Revenue submits that the assessee has sold di-calcium phosphate (animal feed grade) to the trader. As serial No. 62 at entry 51 in the Third Schedule clearly specifies phosphinates, phosphonates, etc., it would fall under that entry. There is no specific entry such as di-calcium phosphate (animal feed grade) in the First Schedule and, therefore, the revisional authority was justified in interfering with the order passed by the first appellate authority and in holding that this particular item falls in the Third Schedule, as such he submits no case for interference is made out. There is no specific entry such as di-calcium phosphate (animal feed grade) in the First Schedule and, therefore, the revisional authority was justified in interfering with the order passed by the first appellate authority and in holding that this particular item falls in the Third Schedule, as such he submits no case for interference is made out. In the light of the aforesaid facts and the rival contentions, the questions of law that arise for our consideration in this appeal are as under : (i) Whether the revisional authority was justified in invoking section 64 of the Act in interfering with the impugned order passed by the first appellate authority ? (ii) Whether di-calcium phosphate (animal feed grade) fall under entry 5 of the First Schedule or entry No. 51 at serial No. 62 of the Third Schedule ? Point No. (i) :- Section 64 of the Act deals with revisional powers of Commissioner and Additional Commissioner. Sub-section (1) is sufficient for our purpose which reads as under : "64. Revisional powers of Additional Commissioner and Commissioner. - (1) The Additional Commissioner may on his own motion call for and examine the record of any order passed or proceeding recorded under this Act and if he considers that any order passed therein by any officer, who is not above the rank of a Joint Commissioner, is erroneous insofar as it is prejudicial to the interest of the Revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the person concerned an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment or directing a fresh assessment." A perusal of the aforesaid provision makes it clear that the said power could be exercised only when any order passed or proceeding recorded under this Act is erroneous insofar as it is prejudicial to the interest of the Revenue. The aforesaid phrase is also found in section 262 of the Income-tax Act, 1961. The apex court in the context of the Income-tax Act had an occasion to consider the meaning of the aforesaid phrase in the case of Malabar Industrial Co. The aforesaid phrase is also found in section 262 of the Income-tax Act, 1961. The apex court in the context of the Income-tax Act had an occasion to consider the meaning of the aforesaid phrase in the case of Malabar Industrial Co. Ltd. v. Commissioner of Income-tax [2000] 243 ITR 83 (SC), where it has been held as under : "A bare reading of this provision makes it clear that the prerequisite to the exercise of jurisdiction by the Commissioner suo motu under it, is that the order of the Income-tax Officer is erroneous insofar as it is prejudicial to the interest of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the assessing officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent - if the order of the income-tax officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but is prejudicial to the Revenue - recourse cannot be had to section 263(1) of the Act. There can be no doubt that the provision cannot be invoked to correct each and every type of mistake or error committed by the assessing officer. It is only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. The phrase 'prejudicial to the interest of the Revenue' is not an expression of art and is not defined in the Act. Understood in its ordinary meaning it is of wide import and is not confined to loss of tax. ... ... The phrase 'prejudicial to the interests of the Revenue' has to be read in conjunction with an erroneous order passed by the assessing officer. Every loss of revenue as a consequence of an order of the assessing officer cannot be treated as prejudicial to the interests of the Revenue. ... ... The phrase 'prejudicial to the interests of the Revenue' has to be read in conjunction with an erroneous order passed by the assessing officer. Every loss of revenue as a consequence of an order of the assessing officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. ..." The first appellate authority in its order has observed as under : "12. The classification of di-calcium phosphate (animal feed grade) has been settled by the honourable Supreme Court in the case of M/s. Kerala Chemicals and Proteins Ltd. (The appellant has purchased di-calcium phosphate - animal grade - from this party) in order dated July 19, 2001 wherein, the honourable Court upheld the classification of the product as 'preparations of a kind used in animal feeding' falling under tariff heading 2302.00 of the CET as it stood to February 28, 2005 and that entry is under heading 2309 with effect from February 28, 2005. 13. The appellant has also filed copies of orders issued by the Commissioner of Commercial Taxes, Kerala and Commissioner of Central Excise, Calicut, wherein it is clarified that di-calcium phosphate falls under heading 2309.90.90 as 'preparations of a kind used in animal feeding'. Therefore, what will come under 2835.00 under this entry would be di-calcium phosphate other than animal feed grade. Hence, the impugned goods fall under entry 5(i) of the First Schedule as feed supplement." M/s. Kerala Chemicals and Proteins Limited who are the manufacturers of di-calcium phosphate cleared 6,487.50 MT of di-calcium phosphate for domestic market totally valued at Rs. 9,68,91,230 during the period from March 1, 2005 to November 30, 2005 without payment of duty. They were served with a show-cause notice requiring them to show cause to the Commissioner of Central Excise and Customs, Calicut, as to why Cenvat duty on di-calcium phosphate should not be demanded under section 11A of the Central Excise Act, 1944 and consequently why interest and penalty should not be imposed. They were served with a show-cause notice requiring them to show cause to the Commissioner of Central Excise and Customs, Calicut, as to why Cenvat duty on di-calcium phosphate should not be demanded under section 11A of the Central Excise Act, 1944 and consequently why interest and penalty should not be imposed. M/s. Kerala Chemicals and Proteins Limited filed a reply justifying their stand. The Tribunal after considering the rival contentions held as under : "The classification of di-calcium phosphate (animal feed grade) has been settled at the highest level, that is, at the apex court level in the party's own case in order dated July 19, 2001 wherein the honourable apex court upheld the classification of the product as 'preparations of a kind used in animal feeding' falling under tariff heading No. 2302.00 of the Central Excise Tariff as it existed prior to February 28, 2005 as held by the honourable Tribunal in their order dated May 21, 1999. In their order dated May 21, 1999, the CEGAT, South Zonal Bench at Madras held as follows in respect of classification of di-calcium phosphate (animal feed grade) : 'In view of the decision of the Tribunal in the case of Punjab Bone Mills [2001] 135 ELT 1377 (Tri. - Del.) as also in the case of Raymon Glues and Chemicals [2000] 117 ELT 29 (Guj) wherein the decision of the Tribunal has been accepted by the honourable Supreme Court in the form of dismissing the Department's civil appeal against it as noted above. We also note that the honourable Gujarat High Court has clearly and unequivocally quashed the circular of the Central Board of Excise and Customs noted above dated March 3, 1997 by their decision supra. Therefore, we find that the law with regard to the classification of this product is now clearly well-established one to the effect that the same shall be classified under 23.02 of the Central Excise Tariff Act, 1985.' 14. The Department's civil appeal against this Tribunal's order was dismissed by the honourable apex court in their order dated July 19, 2001. Thus the classification of di-calcium phosphate (animal feed grade) under heading No. 23.02 as product of a kind used in animal feeding had attained finality." Then the first appellate authority has referred to the relevant entries both under the First Schedule and the Third Schedule. Thus the classification of di-calcium phosphate (animal feed grade) under heading No. 23.02 as product of a kind used in animal feeding had attained finality." Then the first appellate authority has referred to the relevant entries both under the First Schedule and the Third Schedule. Thereafter, it held di-calcium phosphate (animal feed grade) cannot be brought under heading No. 283500 as alleged in the notice. What will come under 283500 under this entry would be di-calcium phosphate other than animal feed grade. It is also necessary that all di-calcium phosphates should come under one entry alone. Di-calcium phosphate of animal feed grade continues to merit classification as "preparation of a kind used in animal feeding" under heading 2302 of the Central Excise Tariff as it existed prior to February 28, 2005 and under heading 2309 on or after February 28, 2005. In the absence of any change in the scope of Chapter 28 or heading No. 2835 both prior to and on or after February 28, 2005 either by way of change in the chapter notes or section notes, di-calcium phosphate (animal feed grade) cannot be brought under 28352500 merely because the said sub-heading refers to di-calcium phosphate. Therefore, the classification of di-calcium phosphate (animal feed grade) continues to be under Chapter 23 attracting nil rate of duty even after introduction of eight digit tariff effective from February 28, 2005. The said judgment has been upheld by the apex court. When the first appellate authority has followed the law declared by the apex court, it cannot be said that the said order is erroneous. It is bound by the order of the Tribunal as well as of the apex court and to maintain judicial discipline it has followed the said judgment and has given effect to it. If the Revenue do not want to accept the said finding, it is open to them to prefer an appeal against the said order and it is open to them to approach the apex court for reconsideration of the same. In those circumstances, the Additional Commissioner under the guise of exercising his power of revision under section 64 cannot formulate the points for consideration as he has done, as the reason for, exercising the said power. In those circumstances, the Additional Commissioner under the guise of exercising his power of revision under section 64 cannot formulate the points for consideration as he has done, as the reason for, exercising the said power. It is well-settled that, when two views are possible, merely because the appellate authority or a revisional authority does not agree with the reasons given by the lower authority, is no justification to exercise the power of revision. That is the distinction between the revisional power and an appellate power. Unfortunately, the revisional authority has not applied its mind to these paragraphs in the order of the appellate authority. It is not the case of the revisional authority that either the said judgment does not apply to the facts of the case or the said judgment has been misread by the first appellate authority. From the facts stated above, the very product which is the subject-matter of these proceedings was the subject-matter of the earlier proceedings. In fact the revisional authority has relied on yet another judgment of the apex court which on a proper construction would assist the assessee and do not support the order passed by the revisional authority. Under these circumstances, there is a jurisdictional error committed by the Additional Commissioner in exercise of his powers of revision, when the order passed by the first appellate authority was in consonance of the law declared by the apex court. The order passed by the first appellate authority was neither prejudicial to the Revenue nor was erroneous. Both the conditions are not satisfied in the facts of this case and, therefore, the impugned order is liable to be set aside on this short ground. Point No. (ii) :- In order to answer this point, it is necessary to first look at the entry No. 5 of the First Schedule as well as entry No. 51 at serial No. 62 of the Third Schedule, which reads as under : "5(i) Animal feed and feed supplements, namely, processed commodity sold as poultry feed, cattle feed, pig feed, fish feed, fish meal, prawn feed, shrimp feed and feed supplements and mineral mixture concentrate, intended for use as feed supplements." The above entry does not cover rat feed and rabbit feed. Hence not liable for tax exemption. Since the entry specifically mentioned the name of the items, the decision of the assessing authority is in order. Hence not liable for tax exemption. Since the entry specifically mentioned the name of the items, the decision of the assessing authority is in order. The next issue is that, whether di-calcium phosphate is covered under the above entry as feed supplements, when sold to the dealer other than a manufacturer of animal feed. The reason given by the assessing authority to levy tax on sale of di-calcium phosphate is that it has been notified by the Government vide Notification No. FD 197 CSL 2005 (6), Bangalore, dated April 30, 2005 as industrial inputs taxable at four per cent under the Third Schedule to the Act. In exercise of the powers conferred by clause (a) of sub-section (1) of section 4 read with entry at serial Number 35 of the Third Schedule to the KVAT Act, 2003 (Karnataka Act 32 of 2004) and in supersession of Notification No. FD 55 CSL 2005 (8), dated March 23, 2005, the Government of Karnataka specified with effect from May 1, 2005, the goods specified in column (3) of the table below with heading and sub-heading numbers under the Central Excise Tariff Act, 1985 (Central Act 5 of 1986) specified in column (2), as industrial inputs and packing materials, namely : Serial No. Heading and sub-heading No. Description 62 (2) Phosphinates, phosphonates, etc. Relying on these entries, the Revenue is contending that di-calcium phosphate falls under serial No. 62 in the Third Schedule and is liable to tax at four per cent. This question arose for consideration in a different context before the apex court in the case of Collector of Central Excise, Guntur v. Surendra Cotton Oil Mills and Fertilisers Company reported in [2001] 127 ELT 3 (SC). The apex court had an occasion to deal with what an animal feed is, in the case of Sun Export Corporation, Bombay v. Collector of Customs, Bombay reported in [1998] 111 STC 69 (SC); [1997] 93 ELT 641 (SC). The apex court has expressed their agreement with a view expressed by the Bombay High Court as under : "The preparations in question are used to supplement animal feed. Sometimes animal feed or poultry feed is already fortified with these vitamins when sold. Sometimes, however, farmers prefer to add the vitamins either to animal feed or to poultry feed separately. These products strengthen the nutritional quality of animal feeds. Sometimes animal feed or poultry feed is already fortified with these vitamins when sold. Sometimes, however, farmers prefer to add the vitamins either to animal feed or to poultry feed separately. These products strengthen the nutritional quality of animal feeds. Thus, for example, items like Bournvita or Complan also add nutrients to milk. But they are not for that reason, medicines. In a general sense every kind of nourishment strengthens the body against ailment. But such nourishment cannot be considered as a medicine or a drug. The two products are also known in the trade as animal feed supplements and they are sold by the suppliers of animal feed. ..." At para No. 4 it is held as under : "The term 'animal feed' has not been defined in the Tariff Act excepting noting the ordinary dictionary meaning of the word or the user and understanding of the word in common parlance. In IS 9703-1980, it is found in para 0.2 as below : 'In the field of animal feeds manufacturing industry a large number of feeding stuffs (ingredients) are utilised, which may be by-products of other industries and also subjected to certain processing before utilisation.' Para 5 : The understanding of the Indian Standard Institution as referred in IS 9703, thus goes to suggest that ingredients by themselves cannot be termed to be animal feed. It may be a component or ingredient or a basic stuff, but it cannot be termed to be animal feed. A very common example on this score remains that of oil cakes - whereas oil cakes are used as protein supplement in livestock food stuffs and mixed with the animal feed, oil cakes by themselves cannot be termed to be an animal feed, since animal feed not only consists of its ingredients but the total bulk in form, shape and size which would feed an animal. Animal feed thus cannot be an ingredient or a part of the feed but in its entirety and as a whole taken together with even vitamins and calcium mix. Para 6 : The whole substance thus is the mix and not any specific item as such. Animal feed thus cannot be an ingredient or a part of the feed but in its entirety and as a whole taken together with even vitamins and calcium mix. Para 6 : The whole substance thus is the mix and not any specific item as such. In the same manner, products which supplement animal feed and which generally added to animal feed are also covered by the generic term 'animal feed'." In the case arising out of M/s. Kerala Chemicals and Proteins Limited, Kathikudam, from whom the assessee has purchased di-calcium phosphate. When the similar question arose, the appellate authority has held as under : "The same product can be classified under different tariff heading or sub-headings depending upon the source of the product or how it is produced or manufactured. For example, sulphur is produced as a mineral product from mines. Sulphur also arises as a by-product during the course of distillation of crude petroleum; and that according to the Central Excise Tariff Act as it existed prior to February 28, 2005 mineral sulphur (mined) was classifiable under Heading 25.05 subject to nil rate of duty while sublimed or precipitated and colloidal sulphur were classifiable under Tariff Heading No. 28.02 subject to 16 per cent duty; that in the eight digit classification effective from February 28, 2005, di-calcium phosphate of animal feed grade manufacture out of crushed animal bones is liable to be classified under Tariff Heading No. 23099090 while di-calcium phosphate (technical or chemical grade) manufactured by synthetic method out of phosphoric acid, soda ash, calcite powder and hydrochloric acid and used for technical or chemical purposes is liable to be classified under Tariff heading No. 28352500; that the same is the case of classification of oleoresins which are liable to be classified under Tariff Heading Nos. 13019041 to 13019049 and also under 33019011 to 33019029 and further that with regard to classification matters the description in the HSN has got very great persuasive value as held by the Supreme Court, High Court and Tribunals. 13019041 to 13019049 and also under 33019011 to 33019029 and further that with regard to classification matters the description in the HSN has got very great persuasive value as held by the Supreme Court, High Court and Tribunals. According to the HSN under heading 2835, calcium hydrogen orthophosphate (di-calcium phosphate) (Ca HPO 4 2 H 2 O) is obtained by the action of an acidulated calcium chloride solution on di-sodium hydrogen orthophosphate, that it is a white powder insoluble in water, used as fertilizer; as a mineral supplement to animal fodder, and in the manufacture of glass medicaments, etc.; that calcium hydrogen orthophosphate containing not less than 0.2 per cent by weight of fluorine calculated on the dry anhydrous produce is excluded (1 leading No. 31.03 or 31.05); that in the di-calcium phosphate manufactured by the assessee, the content of fluorine is less than 0.2 per cent by weight; that for this reason the product by its method of manufacture and use is outside the scope of tariff heading 28 and due to the contents of fluorine being less than 0.2 per cent is excluded from Tariff Heading 31; the beneficiaries of exemption of this product are farmers and persons rearing animals and birds in the rural areas; that it is for this reason the Government as a matter of pragmatic policy had fully exempted the product from excise duty and that the adoption of the eight digit tariff description had not in anyway changed the classification of the product." Accepting the arguments, the Tribunal has held as under : "The classification of di-calcium phosphate (animal feed grade) has been settled at the highest level, that is, at the apex court level in the party's own case in order dated July 19, 2001 wherein the honourable apex court upheld the classification of the product as 'preparations of a kind used in animal feeding' falling under Tariff Heading No. 2302.00 of the Central Excise Tariff as it existed prior to February 28, 2005 as held by the Tribunal in their order dated May 21, 1999." Further, it observed as under : "From the above, it may be seen that as far as the group of chemicals 'phosphinates (hypophosphites), phosphonates (phosphites) and phosphates' are concerned, there is no change in the tariff description. Di-calcium phosphate (animal feed grade) cannot be brought under heading No. 283500 as alleged in the notice. Di-calcium phosphate (animal feed grade) cannot be brought under heading No. 283500 as alleged in the notice. What will come under 283500 under this entry would be di-calcium phosphate other than animal feed grade. It is also not necessary that all di-calcium phosphates should come under one entry alone. For example; Calcium hydrogen orthophosphate (di-calcium phosphate) containing not less than 0.2 per cent by weight of fluorine calculated on dry anhydrous product merit classification under 3105 as per note 3(A)(iv) to Chapter 31 pertaining to fertilizers. It may thus be seen that all types of di-calcium phosphates will not come under heading 283500 as presumed in the show-cause notice. Therefore, the classification of di-calcium phosphate (animal feed grade) continues to be under Chapter 23 attracting nil rate of duty even after introduction of eight digit tariff effective from February 28, 2005." Further, it held as under : "Di-calcium phosphate (animal feed grade) has to be classified under heading No. 2835.25.00, first it has to fall under the heading 'phosphates'. In the eight digit tariff introduced with effect from February 28, 2005, there is no change either in the section notes pertaining to section VI covering 'productions of the chemical or allied industries' or in the Chapter Notes pertaining to Chapter 28 covering 'inorganic chemicals, organic or inorganic compounds of precious metals, of rare earth metals, of radioactive elements or of isotopes' in relation to group of products covered under the heading 'phosphates' so as to include within its scope di-calcium phosphate of animal feed grade." This judgment of the appellate authority is confirmed by the apex court. It is in this background, we have to decide this di-calcium phosphate (animal feeds) falls under which category. In this context, it is also useful to refer to the case of Dunlop India Limited and Madras Rubber Factory Limited v. Union of India reported in [1983] 13 ELT 1566 (SC). While deciding the classification of glass mirror, the apex court laid down the following principle of classification : "The test commonly applied to such cases is how is the product identified by the class or section of the people dealing with or using the product. That is a test, which is attracted whenever a statute does not contain any definition. It is a matter of common experience that the identity of an article is associated with its primary function. That is a test, which is attracted whenever a statute does not contain any definition. It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer buys an article, he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer between an article and the need it supplies in his life. It is the functional character of the article, which identifies it in his mind. Therefore, glass mirror is not treated as glass and glassware ever in trade parlance." Di-calcium phosphate (animal feed grade) is a feed supplement used in the manufacture of animal feeds. It is purchased by animal feed manufacturers for the preparation of animal feeds. The words "di-calcium phosphate" is not specifically mentioned at serial No. 62 in the Third Schedule. Similarly, the said product is also not mentioned at serial No. 8 in the First Schedule. It is not in dispute that the said product is a feed supplement used in the manufacture of animal feeds. The assessee is a manufacturer of animal feeds. The assessee purchased the said food supplement from M/s. Kerala Chemicals and Proteins Limited. The excess quantity, which was purchased is being sold to M/s. Kavi Agencies, who in turn have sold it to animal feed manufacturers. The di-calcium phosphate (animal feed grade) is not useful for any other purposes except manufacturing of animal feed. Therefore, it is an animal feed supplement. The notification referred to supra specifically deals with products used as industrial inputs and packing materials. Di-calcium phosphate (animal feed grade) therefore is not useful as an industrial input or as a packing materials. The said product is purchased by animal feed manufacturers for a specific function. The said product is associated with animal feed only. The Additional Commissioner though noticed the judgment of the Supreme Court and accepted the contention that di-calcium phosphate is a product used in the preparation of animal feed, rejected the contention of the assessee on the ground that the Supreme Court never held that, di-calcium phosphate is a animal feed or animal supplement, which are exempted from taxation. Therefore, it is a clear case of misreading the apex court judgment. Therefore, it is a clear case of misreading the apex court judgment. The Supreme Court has categorically said, both the animal feed and feed supplement are exempted from duty, di-calcium phosphate, which is used in the preparation of animal feed is not an animal feed as such, it is a feed supplement. Entry No. 8 of the First Schedule clearly exempts from payment of duty both animal feed and feed supplement, i.e., precisely what the apex court said in the judgment. In the view of the matter, the order passed by the Additional Commissioner of Commercial Taxes is patently illegal and requires to be set aside and the order passed by the first appellate authority is to be restored. For the aforesaid reasons, we pass the following : ORDER (i) The appeal is allowed. (ii) The order passed by the Additional Commissioner of Commercial Taxes is hereby set aside. (iii) The order passed by the first appellate authority is hereby restored. Parties to bear their own costs.