The judgment of the Court was delivered by

DESAI, J. - In this reference made under section 69 of the Gujarat Sales Tax Act, 1969 (hereinafter referred to as "the Act") by the Gujarat Sales Tax Tribunal (hereinafter referred to as "the Tribunal") at the instance of the assessee, the following question has been referred to this Court for its opinion :

"Whether, on the facts and in the circumstances of the case, a product known as anand pashu ahar sold by the applicant would be covered by entry 11 of Schedule II-Part B to the Gujarat Sales Tax Act, 1969, as held by the Tribunal or it would be covered by entry 21 of Schedule I to the Gujarat Sales Tax Act, 1969, read with entry 25 of the Government notification issued under section 49 of the Gujarat Sales Tax Act, 1969, as contended by the applicant ?"

The assessee is a co-operative society carrying on business of ginning and pressing cotton and producing cotton-seed oil as also a product known as anand pashu ahar (hereinafter referred to as "the ahar" for the sake of convenience). The ahar is produced out of cotton-seed oilcakes. The assessee made an application under section 62 for the determination of the question whether or not the ahar was taxable goods and, if so, what was the rate of tax in respect of the same. The Deputy Commissioner of Sales Tax, who heard the matter, came to the conclusion that the ahar, which is used as cattle-feed, retained the characteristics of oilcakes and that, therefore, the sale of the said product was not exempt from tax under entry 21 of Schedule I. The Deputy Commissioner of Sales Tax further found that the ahar was also not a mechanically produced cattle-feed and that, therefore, it was not covered by entry 25 in the Schedule to the Government notification dated 29th April, 1970, issued under section 49. The Deputy Commissioner of Sales Tax was of the view that the ahar, being in substance and reality, oilcake was covered by entry 11 of Schedule II-Part B, and that it was, therefore, taxable at the rate set out in the said entry.

The assessee, feeling aggrieved by the determination of the Deputy Commissioner of Sales Tax, carried the matter in appeal before the Tribunal. The Tribunal took into consideration four different entries, namely, entry 21 of Schedule I, entry 25 of Schedule II-Part A, entry 11 of Schedule II-Part B and entry 25 of the Schedule to the Government notification dated 29th April, 1970, issued under section 49. Having read the aforesaid entries and having considered certain decided cases, the Tribunal proceeded to state as under :

"There is no dispute that what the appellant has sold is a cattle-feed. All cattle-feeds are, however, not exempt from tax. In order that no tax is payable on the sales of cattle-feed, it must be established that it is not an oilcake. This is for two reasons, firstly, oilcakes are specifically excluded from entry 21 of Schedule I to the Act. And secondly, there is a specific entry for oilcakes being entry 11 of Schedule II-Part B to the Act. The entry of oilcakes being a specific entry and oilcakes being specifically excluded from entry 21 of Schedule I, a product though sold as cattle-feed must not fall within the category of an oilcake. In other words, a mechanically produced cattle-feed, in order to be exempt, should cease to be an oilcake. An oilcake which is sold as mechanically produced cattle-feed containing all the elements and characteristics of oilcake shall nevertheless be taxable as an oilcake."

The Tribunal then proceeded to consider whether the ahar, which was a cattle-feed, ceased to be oilcake or whether it continued to retain all the characteristics of oilcake. It might be noted at this stage that in the forefront of its order the Tribunal referred to a pamphlet issued by the assessee which explained the process that was applied in the manufacture of the ahar. The relevant extract from the pamphlet, which is quoted in the order of the Tribunal, reads as under :

"The cot