JUDGMENT : 1. The present revision has been filed against the order dated 20.5.2010 passed by Commercial Tax Tribunal, Faizabad Bench, Faizabad in Second Appeal No. 126 of 2008 (Assessment Year 1999-2000). 2. During pendency of the present revision, the revisionist filed an amendment application, which was allowed by this Court by order dated 25.4.2019. The revisionist by way of amendment has raised the following questions of law for consideration of this Court:- “1. Whether tribunal was justified in law to impose tax both on timber in log and timber in chiran? 2. Whether tribunal was justified in law to impose tax on timber @ 16 % during period 01.02.2000 to 31.03.2000?” 3. The counsel for the revisionist submits that he only wants to press the aforesaid question of law. 4. It has been averred that the revisionist being registered dealer is engaged in the business of timber and manufacture and sale of veneer (chiran). The business premises of the revisionist was surveyed on 22.12.1999 on the basis of which the best judgement assessment was made. On the purchase of timber log tax was levied as purchase tax and after manufacture of veneer (chiran) from it, tax was levied on its sale amounting double taxation, which is not permissible under the law. The said imposition of tax has been confirmed up to the stage of Tribunal by the impugned order. 5. Heard Sri N.C. Mishra, learned counsel for the revisionist and learned Standing Counsel and perused the records. 6. The counsel for the revisionist submits that as per the provisions and notification either the items in which the revisionist is dealing can be taxed at the point of import or manufacturing. In other words only one set of tax can be charged. Tax can be levied either at the time of its import in the State or in the hand of its manufacturer. 7. The counsel for the revisionist further submitted that in the present case revisionist accepts the levy of tax on the purchase of timber log even on the best judgement assessment i.e. enhancement of its turnover. But after manufacture of veneer (chiran) from it no tax can be charged on its sales subsequently. 8. It was further argued that rate of tax can be levied only as per the rate mentioned in the notification and not otherwise. 9. But after manufacture of veneer (chiran) from it no tax can be charged on its sales subsequently. 8. It was further argued that rate of tax can be levied only as per the rate mentioned in the notification and not otherwise. 9. In support of his contention the counsel for the revisionist has relied upon Notification No. T.I.F.-2-2375/XI-9(251)/97-U.P. Act-15-48-order-98 dated 23.11.1998 which is quoted below : In exercise of powers under clause 9d) of sub-section (1) of section 3A of the Uttar Pradesh Trade Tax Act, 1948 (UP Act No. 15 of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904) and in supersession of all previous notifications issued in this behalf, the Governor is pleased to declare that with effect from December 1, 1998, turnover in respect of the goods mentioned in column 2 of the Schedule below shall be liable to tax at the point of sale specified in column 3 of the said Schedule at the rate specified against each in column 4 thereof. Woods and timber of all kinds and of all trees of whatever species including ballies and bamboos whether growing or cut or sawn but excluding their products and fire wood. Sale by Forest department, the UP Forest Corporation or by private owner of forest or by importer or manufacturer; Provided that where the sale is by the forest department to the UP Forest Corporation the tax shall be levied on the point of sale by the said Corporation and not at the point of sale by the Forest Department. 15% 10. The aforesaid notification was modified by Notification KA. NI. -2-101/XI-9(231)/94-UPAct-15-48-order-2000 dated Lucknow: 15 January, 2000, which is quoted below :- In exercise of the powers under clause (e) of sub-section (1) of section 3-A of the Uttar Pradesh Trade Tax Act, 1948 (UP Act No. XV of 1948) read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (UP Act No. 1 of 1904), and in supersession of all previous notifications issued in this behalf, the Governor is pleased to declare that, with effect from January 17, 2000, the turnover in respect of the goods mentioned in column 2 of the List below shall be liable to tax at the point of sale specified in column 3 of said List at the rate specified against each in column 4 thereof. 29(i) Woods and timber of all kinds and of all trees of whatever species including ballies and bamboos, whether growing or cut or sawn imported from out side India. Importer 20% (ii) Woods and timber of all kinds and of all trees of whatever species whether growing or cut or sawn not included above but excluding their products and firewoods. Sales by Forest Department the UP Forest Corporation or by private owner of forest or by importer or manufacturer. Provided that where the sale is by the forest department to the UP Forest Corporation the tax shall be levied on the point of sale by the said corporation and not at the point of sale by Forest Department. 20 % By the aforesaid notifications rate of tax has been enhanced from 15 % to 20 % and there was no change in levy of tax on timber. 11. The counsel for the revisionist submitted that neither tax can be levied twice i.e. one as purchase tax and the other on its sale nor the rate of tax can be enhanced to 16% instead of 15 %. More precisely 1 % enhanced tax cannot be levied on the sale of veneer (chiran). 12. The counsel for the revisionist has relied upon the certain judgements of Supreme Court, this Court as well as other High Courts i.e. Deputy Commissioner of Sales Tax Vs. Pio Food Packers, Commissioner of Sales Tax, UP Lucknow Vs. M/s Packing Aids, Agra, Commissioner Sales Tax Vs. Murlidhar and sons, State of Tamil Nadu Vs. C. Kanchanamala, G. Ramaswamy and others Vs. State of Andra Pradesh and others, Commissioner Sales Tax Vs. Lal Kuwa Stone Crusher Pvt. Ltd. and Kalptaru Agro Forest Enterprises Pvt. Ltd. Vs Commissioner Commercial Tax. 13. Rebutting the submissions of the learned counsel for the revisionist, the learned Standing Counsel submits that timber log was purchased by the revisionist from an unregistered dealer so that the tax was levied, therefore, commercial commodity i.e. veneer (chiran) has been produced. Therefore the tax has rightly been imposed. He relied upon the judgement of this Court in Trade Tax Revision No.1237 of 2000, Commissioner of Commercial Tax Vs. Om Trading decided on 22.8.2008. He submits that the issue involved in the present revisionist is squarely covered by the aforesaid judgement. 14. Therefore the tax has rightly been imposed. He relied upon the judgement of this Court in Trade Tax Revision No.1237 of 2000, Commissioner of Commercial Tax Vs. Om Trading decided on 22.8.2008. He submits that the issue involved in the present revisionist is squarely covered by the aforesaid judgement. 14. It is not disputed by either of the parties that the revisionist has purchased timber log on which the tax was levied. The only dispute for consideration of this Court is that whether the sale of veneer (chiran) can again be taxed from 1.4.1999 to 31.4.2000 @ 15 % and from 1.2.2000 to 31.3.2000 @ 16 %. 15. It is admitted between the parties that after purchase of timber log, the same was cut in different sizes and planks were obtained, which were used by the revisionist as veneer (chiran). Tax has been levied on the basis of best judgement assessment which has not been disputed by either of the parties. 16. According to the counsel for the revisionist once the tax has been charged on the purchase of timber log even on the best judgement assessment, there is no justification to levy tax on the sale of veneer (chiran) again. He further argued that timber remain timber even after cut to small sizes/planks/chiran. 17. Apex Court is the case of Deputy Commissioner of Sales Tax Vs. Pio Food Packers 1981 UPTC 667, has held as follows:- 5. Section 5-A(1)(a) of the Kerala General Sales Tax Act envisages the consumption of a commodity in the manufacture of another commodity. The goods purchased should be consumed, the consumption should be in the process of manufacture, and the result must be the manufacture of other goods. There are several criteria for determining whether a commodity is consumed in the manufacture of another. The generally prevalent test is whether the article produced is regarded in the trade, by those who deal in it, as distinct in identity from the commodity involved in its manufacture. 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 indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But 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. Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining its original identity. 6. A large number of cases has been placed before us by the parties, and in each of them the same principle has been applied: Does the processing of the original commodity bring into existence a commercially different and distinct article ? Some of the cases where it was held by this Court that a different commercial article had come into existence include Anwarkhan Mehboob Co. v. The State of Bombay and Others (where raw tobacco was manufactured into bidi patti), A. Hajee Abdul Shukoor and Co. v. The State of Madras (raw hides and skins constituted a different commodity from dressed hides and skins with different physical properties), The State of Madras v. Swasthik Tobacco Factory (raw tobacco manufactured into chewing tobacco) and Ganesh Trading Co. Karnal v. State of Haryana and Another, (paddy dehusked into rice). On the other side, cases where this Court has held that although the original commodity has undergone a degree of processing it has not lost its original identity include Tungabhadra Industries Ltd., Kurnool v. Commercial Tax Officer, Kurnool (where hydrogenated groundnut oil was regarded as groundnut oil) and Commissioner of Sales Tax, U.P., Lucknow v. Harbilas Rai and sons (where bristles plucked from pigs, boiled, washed with soap and other chemicals and sorted out in bundles according to their size and colour were regarded as remaining the same commercial commodity, pigs bristles). …. 12. The comment applies fully in the case before us. …. 12. The comment applies fully in the case before us. 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. It is contended for the Revenue that pineapple slices have a higher price in the market than the original fruit and that implies that the slices constitute a different commercial commodity. The higher price, it seems to us, is occasioned only because of the labour put into making the fruit more readily consumable and because of the can employed to contain it. It is not as if the higher price is claimed because it is a different commercial commodity. It is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a can of pineapple slices he has in mind something very different from fresh pineapple fruit. Here again, the distinction in the mind of the consumer arises not from any difference in the essential identity of the two, but is derived from the mere form in which the fruit is desired. ... 14. In the result, we hold 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. 18. Apex Court has very clearly said that even after pineapple have been slices and canned does not changes its identity. 19. This Court in Commissioner of Sales Tax, UP Lucknow Vs. M/s Packing Aids, Agra reported in 1980 UPTC, 901 has held here in below: “7. Now coming to the other question the Assessing Officer observed that the claim made by the assessee that batton and shooks fell in the category of timber was incorrect because it was only making planks or joining planks by nails and that was treated by the assessee as shooks and the same could not be treated as timber. The Revising Authority has, however, observed that batton and bhooks appear to be nothing but wooden planks or pieces used for making wooden cases or Pattis and hence the case of the assessee was correct that what it was dealing with was timber. The Revising Authority has, however, observed that batton and bhooks appear to be nothing but wooden planks or pieces used for making wooden cases or Pattis and hence the case of the assessee was correct that what it was dealing with was timber. In my opinion no clear finding has been recorded either by the Assessing Authority or by the Revising Authority in regard to the nature of the products which the assessee is making. If the assessee is only making planks, that would come in the category of timber because the planks would be sawn timber or wood and would be covered by Entry 97 aforesaid. But if the assessee is further joining the planks by nails, that would have to be treated as timber product. The import of the expression “product” came up for consideration before a Division Bench of this Court in Commissioner of Sales Tax v. B.M. Wood Works No.1, (1973) 32 STC 66 . The question referred to this Court was : “Whether boxes made of Chir are timber products as contemplated by Notification No. ST-3393 dated 1st July, 1962, as amended by Notification No. 6869 dated 19th January, 1963”. The view taken was that the word product in the notification was intended to be used in its full and comprehensive meaning viz. A thing produced by any action, operation or work, and not in the narrow and restricted meaning of something produced by nature or a natural process. Now sawn timber has been placed specifically in the category of timber under Entry 97 aforesaid, but the joining of planks by nails would certainly be a thing produced by an action or operation of work and would have to be treated as timber product and not as timber. Both the Department and the assessee have not been, in their minds, clear about the nature of the assessee’s business and it needs consideration afresh. The occasion for carrying out the direction given by the Revising Authority would arise only if it is found that batton and shooks in which the assessee dealt are covered by Entry 97 aforesaid. If, however, it is found that they are timber products, there would be no occasion for any such further enquiry.” 20. The court has held that if the dealer is making planks then it will come in the category of timber. If, however, it is found that they are timber products, there would be no occasion for any such further enquiry.” 20. The court has held that if the dealer is making planks then it will come in the category of timber. But if the joining of planks by nails would have to be treated as timber product. 21. This Court in the case of Commissioner Sales Tax Vs. Murlidhar and sons, 2006 (29) NTN 154 has held herein below: 1….. “2. Heard the counsel for the parties. The dispute relates to the Assessment Year 1988-89. The dealer opp. Party deals in timber, timber product and burada etc. In the assessment year in question the Assessing Authority held that planks made by the assessee is a timber product. The said finding has been set aside by the First Appellate Authority which has been confirmed by the Tribunal. This Court in the case of C.S.T. Vs. M/s Packing AIDS, Agra 1980 UPTC 901 has held that the wooden planks and pieces used for making wooden goods fall within the category of timber. Respectfully following the aforesaid decision, I do not find any legal error in the order of the Tribunal. The revision is dismissed.” 22. Similar view has been taken by Madras High Court in the case of State of Tamil Nadu Vs. C. Kanchanamala (1994) 93 STC 87 in which it has held as follows:- 3. The finding of the Tribunal is as follows : "..... It is found that the appellant had effected purchase of timber, sliced the same into splints and sold the splints to various dealers among the match manufacturers. Hence, we are of the view that provisions of section 7A cannot be applied to the purchase turnover of timber and accordingly we set aside the assessment of the purchaser turnover ......" … 8. From a perusal of the ratios laid down in all these cases, there is no difficulty in upholding the view taken by the Tribunal as the splints obtained by slicing the timber definitely retain the identity of timber and, therefore, it cannot be said that the timber has been consumed in the manufacture of splints. 9. Now, coming to the decision on which reliance was placed by the learned Additional Government Pleader, it is seen that no facts, it is entirely a different one. 9. Now, coming to the decision on which reliance was placed by the learned Additional Government Pleader, it is seen that no facts, it is entirely a different one. In that case, the assessee purchased timber in logs, cut the same into slices and planks and thereafter manufactured packing cases. In those circumstances, this Court held that a packing case in any sense of the term, cannot be called timber. ... 23. Madras High Court has clearly opined that slicing of timber definitely retain the identity of timber. 24. Similar view has been taken by Andhra Pradesh High Court in the case of G. Ramaswamy and others Vs. State of Andhra Pradesh and others, (1973) 32 STC 309 A.P. in which it has held as follows:- 3. Under Section 5(2)(a) read with item "63. Timber" in the First Schedule to the Act a dealer in timber is liable to pay sales tax thereon at 3 pies in a rupee at the point of first sale. The petitioners are sought to be taxed on "planks, rafters, cut sizes, etc.," which they sell to the customers under Section 5 of the Act treating them as general goods. The contention of the petitioners is that they deal in timber and since the sales which they effect are not the first sales, they are not therefore liable to pay any tax under item 63 of the First Schedule to the Act. They submit that since the transactions fall under item 63 as they deal in timber, they cannot be taxed under Section 5 of the Act. …. 14. Thus the word "timber" may in the context mean the timber tree; when it is felled, the wood; when it is cut into logs for convenience of transport, the ballis cut to sizes or even the planks, rafters, cut sizes, etc., for the use of construction of buildings or such other like purpose. 37. It will thus be plain that right from the inception, the Commercial Taxes Department has been treating planks, rafters and cut sizes as timber and never taxed them till the attention of the Government was drawn by the Accountant-General, Andhra Pradesh. 37. It will thus be plain that right from the inception, the Commercial Taxes Department has been treating planks, rafters and cut sizes as timber and never taxed them till the attention of the Government was drawn by the Accountant-General, Andhra Pradesh. Realising that the commodity was not so taxed in view of the construction which the Government had placed on the word "timber" for a considerably long time, the Government directed to tax these goods prospectively under Section 5 treating them as general goods. One thing which is conspicuous is that even in the subsequent stand the Government has taken, they do not say that the planks, rafters, etc., do not come within the meaning of timber used in item 63. What they say is that "planks, rafters and cut sizes, etc., obtained from nascent timber have to be treated as falling under general goods". 38. What must follow is that planks, rafters, cut sizes, etc., obtained from logs of wood according to the popular or commercial usage or the interpretation placed by the administration is "timber" within the meaning of item 63 of Schedule I to the Act. 45. Applying these principles thus decided to the facts of the present cases, we have no hesitation in reaching the conclusion that merely because planks, rafters and cut sizes, etc., are sawn or cut from logs of wood, they do not alter their character. They still continue to be raw materials which by themselves and in the same form cannot be directly put to use for construction purposes. The log of wood purchased by the timber merchant is merely cut or sawn to sizes for convenience sake and to make them acceptable to the customers. They do not in that process lose their character as timber. They retain the same character. What the merchants purchased in the form of log of wood was timber. What they sold to their customers in the shape of planks, rafters and cut sizes after processing them was also timber. The customers purchased timber. There is no other name suggested to such planks, rafters, etc., except timber. 47. They retain the same character. What the merchants purchased in the form of log of wood was timber. What they sold to their customers in the shape of planks, rafters and cut sizes after processing them was also timber. The customers purchased timber. There is no other name suggested to such planks, rafters, etc., except timber. 47. It was a common ground that since timber is taxed at first point of sale, when the Forest Department sells the standing timber trees, is the first sale and the sale by the timber merchants in the form of planks, rafters and cut sizes, etc., cannot be taxed a second time, as item 63 permits levy of tax at the point of first sale. The timber having suffered tax once cannot be taxed again. 25. Supreme Court in the case of Commissioner Sales Tax Vs. Lal Kuwa Stone Crusher Pvt. Ltd. 2000 UPTC 463 (SC) has held that converting the stone from boulder to small pieces i.e. stone chip, gitti etc. will not amount to change the nature of the commodity and boulder will remain boulder and no tax can be imposed as such. 26. This Court in Kalptaru Agro Forest Enterprises Pvt. Ltd. Vs Commissioner Commercial Tax, UP Lucknow, 2016 NTN (Vol.61) 143 has held that every type of operation of the goods or finishing of goods would not amount to manufacture unless it results in emergence of a new commercial commodity. 27. In view of the aforesaid judgments the view emerges that no new commercial commodity come into existence which could be said to be a different commodity. Wooden log (timber) will remain wooden log (timber) in its original character even after cutting the same into sizes. 28. The Standing Counsel has relied upon the judgment of Om Trading (supra) wherein it has been held that the goods were admittedly purchased from an unregistered dealer without payment of any tax and after purchase, it was cut into sizes and new commodity was admittedly be manufactured as pulp wood. The tax was imposed under Section 3 AAAA of UP Trade Tax Act on the purchase of goods and thereafter when new commodity as pulp wood was sold, again tax was imposed. 29. The tax was imposed under Section 3 AAAA of UP Trade Tax Act on the purchase of goods and thereafter when new commodity as pulp wood was sold, again tax was imposed. 29. The case-law cited by the learned Standing Counsel is not applicable to the facts of this case as no new commercial commodity come into existence, which has been sold by the revisionist. 30. The Standing Counsel has placed emphasis on the definition of Section 2(e-1) of UP Trade Tax Act and has tried to convince the Court that in view of the definition, the manufacturing and cutting of wood into sizes amounts to new commercial commodity comes into existence. 31. The provision of section 2(e-1) of the Act is quoted below:- “2(e-1): ‘Manufacture’ means producing, making, mining, collecting, extracting, altering, ornamenting, finishing, or otherwise processing, treating or adapting any goods; but does not include such manufactures or manufacturing processes as may be prescribed;” 32. Section 2 (e-1) of the UP Trade Tax Act shows that the process of cutting is not being included within the definition of manufacturing. Thus the process of cutting the wood from different sizes and converting the wood log into plank, no new commercial commodity comes into existence. Timber remain timber and after cutting the timber it does not loose its original identity of timber and it does not undergo any physical/commercial or any kind of change. The identity of timber remains same. Thus the process of cutting and converting timber for log does not come under the definition of manufacturing as provided under Section 2 (e-1) of the UP Trade Tax Act. 33. In view of the aforesaid observation of the Hon’ble Apex Court as well as of this Court and other High Courts, the position of law, which emerges, is that after processing, some new commercial commodity must come into existence which may be identified differently from its original. 34. In the case in hand, timber logs were purchased and the same were sliced converting into veneer (chiran) and the same were sold by cutting the wood log converting into veneer (chiran), no new commercial commodity come into existence. Timber does not looses its original identity of timber and it remains the same. 35. 34. In the case in hand, timber logs were purchased and the same were sliced converting into veneer (chiran) and the same were sold by cutting the wood log converting into veneer (chiran), no new commercial commodity come into existence. Timber does not looses its original identity of timber and it remains the same. 35. In view of the aforesaid observation of the various Courts, the Tribunal was not justified in confirming imposition of tax at the time of purchase of timber (as purchase tax), which has not been challenged by the revisionist and has accepted even in the best judgement assessment, by which its turnover was enhanced, the veneer (chiran), which has been obtained after cutting wood log into small sizes and have been sold, cannot be taxed again. 36. The notification, as mentioned above, clearly shows that the subsequent notification came into existence with effect from 01.01.2000, by which the rate of tax was enhanced from 15% to 16%, which is not relevant for the assessment year in dispute. 37. Moreover, when only one set of tax can be levied by the State in the event the commodity remains the same. In the case in hand, the wood log, which was purchased by the revisionist as timber, remains the same even after obtaining veneer (chiran) as it does not looses its original identity of timber and it does not undergo any physical/commercial or any kind of change. Thus, the process of cutting and converting timber from wood log does not come under the definition of “Manufacturing” as provided under section 2(e-1) of the Act. 38. In the results, the impugned order is modified to that extent. The question of law is answered accordingly in favour of the assessee and against the department. 39. The revision is allowed.