The petitioner carries on business as a dealer in cereals and pulses. He has been assessed to purchase tax under section 3-D(1) of the U.P. Sales Tax Act on the turnover of dal for the assessment year 1966-67 by an assessment order dated 30th June, 1968. The petitioner prays for certiorari against the order. Section 3-D(1) levies a tax on the turnover of first purchases made by a dealer at such rates, not exceeding two paise per rupee in the case of foodgrains including cereals and pulses, and with effect from such date, as may be notified by the State Government in that behalf. By Notification No. ST-7122/X-900(16)-64 dated 1st October, 1964, issued under section 3-D(1) the State Government notified that with effect from 1st October, 1964, the turnover of first purchases in respect foodgrains, including cereals and pulses, would be liable to tax under section 3-D at 1.5 paise per rupee. The petitioner alleges the arhar ki dal was purchased by the dal mills and after it was cleaned and broken down into smaller particles of dal he purchased the broken down dal from the dal mills. The contention of the petitioner is, as it was before the Sales Tax Officer, that the dal purchased by him is essentially the same as the dal purchased by the dal miss, and, therefore, the dal purchased by him must be treated as the second purchase, the first purchase having been effected by the dal mills. As the levy under section 3-D(1) is effected on the first purchase only, the petitioner urges that the turnover of purchases made by him is not liable to purchase tax under the provision. The Sales Tax Officer making the assessment order referred to the order dated 3rd April, 1968, of the Assistant Commissioner (Judicial) Sales Tax, Muzaffarnagar Range, in Appeal No. 1612 of 1966, where it was held that broken down dal was a different commodity from the whole dal. The Sales Tax Officer held that the purchase of the broken down dal by the petitioner must be treated as the first purchase of the commodity.

A perusal of the appellate order in Appeal No. 1612 of 1966 discloses that the Assistant Commissioner (Judicial) found that after the purchase of the arhar dal by the dal mills it was put through a process of cleaning, as a result of which dust and durrana were removed and chhilka, chuni and kutta were obtained as by-products. The decorticated arhar was then subjected to processing in oil and water and left to dry and thereafter the dried arhar was dragged in the mill as a result of which zarda, khanda, turra and dal were obtained. These were separated and sold separately. Upon these facts, the Assistant Commissioner (Judicial) expressed the view that the dal so produced was a commercial commodity different from the original arhar dal.

It is admitted between the parties before us that the processes described by the Assistant Commissioner (Judicial) also take place in the case of the dal purchased by the petitioner. The petitioner points out that chhilka and chuni represent the outer husk or covering of the grain, and kutta is the name given to the occasional grain of dal which is too hard to be broken down. The petitioner also says that zarda, khanda, turra and dal are essentially the same in nature and that one is distinguished from the other only by the size of the dal particles. It is said that zarda consists of the smallest dal particles while the dal consists of the biggest particles. That is not disputed by the Commissioner of Sales Tax. The position, therefore, is that the dal mills clean the arhar dal purchased by them and after the husk or outer covering is removed the dal itself is put through a process which results in its breaking down into particles of different sizes. The dal particles are then sold under different names according to their sizes.

It seems to us that the dal purchased by the petitioners is essentially the arhar dal purchased by the dal mills. There is no change in the chemical composition of the dal. There is no essential physical change except that the dust is shaken off, the husk or covering is removed and that dal itself is broken down into smaller pieces. We specifically enquired of learned counsel for the parties whether there was any essential difference between the dal before it was broken down and the zarda, khanda, turra and dal obtain after the original grain was broken down, and we were told that except for the difference in size there is no other change. It would, therefore, appear that the broken down dal cannot be considered as a commodity essential different from the grain purchased by the dal mills. It cannot be said that the broken down dal has been manufactured from the original grain. The cleaning, de-husking and breaking down of the dal grain can be described as mere process through which the original grain is put, and as the Supreme Court observed in Union of India v. Delhi Cloth and General Mills (A.I.R. 1968 S.C. 791) there is a material difference between "processing" and "manufacturing". The Supreme Court said :

"According to the learned counsel manufacture is complete as soon as by the application of one or more process, the raw material undergoes some change. To say this is to equate processing to manufacture and for this we can find no warrant in law. The word manufacture used as a verb is generally understood to mean as bringing into existence a new substance and does not mean merely to produce some change in a substance, however minor in consequence the change may be. This distinction is well brought about in a passage thus quoted in Permanent Edition of Words and Phrases, Volume 26, from an American judgment. The passage runs thus :

"Manufacture" implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use."

Having regard to the processes leading to the preparation of the broken down dal purchased by the petitioner, we are unable to hold that it represents a new and different article from the original grain. There is nothing to show that it is commercially regarded as essentially of a distinctive character from the original grain either by virtue of its name, character or use. In B. Dar Laboratories v. State of Gujarat ([1968] 22 S.T.C. 160), the Gujarat High Court pointed out :

"........... when a process is adopted for convenience of sale or making the article more acceptable to the customers, if the article in question retains its essential character, it has to be taxed as such article only and the processing would make no difference. The physical state or even the composition may change but so long as the essential character of the article continues to remain the same, it has to be taxed as that commodity alone."

In our opinion these observations apply fully to the case before us. The case is unlike that considered by the Supreme Court in Devi Dass Gopal Krishnan v. State of Punjab ([1967] 20 S.T.C. 430), where the conversion of scrap iron ingots into rolled steel sections was held to involve a vital change in the process of manufacture during which the scrap iron lost its identity and became a new marketable commodity.

We may refer to Tungabhadra Industries Ltd. v. Commercial Tax Officer ([1960] 11 S.T.C. 827), where the Supreme Court held that hydrogenated groundnut oil remained groundnut oil, even though it was put through a process of hydrogenation resulting in a chemical change, which brought about the hardening of the oil. It continued to be the same edible fat that it was before the hardening, and its nutritional properties continued to be the same.

We are of opinion that the dal purchased by the petitioner cannot be said to be a commodity essentially different from the arhar dal purchased by the dal mills and accordingly the purchases effected by the petitioner cannot be regarded as the first purchase. The petitioner is, therefore, not liable to the levy of purchase tax under section 3-D(1) on the turnover of such purchases.

An objection has been raised on behalf of the Commissioner to the grant of relief upon this petition. It is pointed out that it was open to the petitioner to proceed in appeal against the assessment order and no adequate reason has been shown for preferring the extraordinary jurisdiction of this court conferred by article 226 of the Constitution. It is pointed out that after the appeal the petitioner could proceed in revision and then seek the opinion of this court in a reference under the U.P. Sales Tax Act. We have carefully considered the plea, and we cannot accept it. It is well settled that the existence of an alternative remedy is not an absolute bar to the grant of relief under article 226. There are a very large number of cases which have raised that point consider by us, and indeed the entire mercantile community dealing in this commodity is greatly agitated by the levy of the tax. To postpone the day of adjudication and prolong the uncertainty is not, we think, in the interest of justice. The petition is allowed. A writ in the nature of certiorari shall issue quashing the assessment order dated 30th June, 1968, made by the Sales Tax Officer for the assessment year 1966-67. The petitioner is entitled to his costs.

Petition allowed.