ivil Appeal No 904 NT of 1988 From the Judgment and Order dated 10111986 of the Kerala High Court in TRC No 162 of 1986 VJ Francis for the Appellant
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Special leave granted
This is an appeal against the judgment and order of the High Court of Kerala dated 10th of November 1986
By the impugned judgment the High Court has dismissed the Tax Revision Case filed at the instance of the Sales tax authority
The assessee respondent herein had purchased fresh frog legs and after removing the skin washing and removing dirt etc
and freezing it for the purpose of avoiding decomposition and decay the said frog legs were exported
The assessee claimed that they were entitled to the benefit of section 53 of the Central Sales tax Act 1956
In order to appreciate the question it is necessary to refer to the findings of the Tribunal
The Tribunal found that what was purchased 100 by the assessee was fresh frog legs and after freezing it for the purpose of avoiding decomposition and decay it was exported
It was therefore held by the Tribunal that what was purchased as fresh frog legs was exported by the assessee
It was contended on behalf of the State that what was purchased was fresh frog legs and the same was not exported as such without freezing it
The tribunal held that only frozen frog legs were exported
Therefore if followed that what was purchased and exported was one and the same commodity
The frozen frog legs did not undergo any material change in character
The identity of the frog legs remained unchanged as such
In that view of the matter the Tribunal held that the assessee was entitled to the benefit of section 53 of the aforesaid Act
The High Court accepted this view
In our opinion the question is concluded by a decision of this Court in Ms Sterling Foods vs State of Karnataka and another  That was a decision of a Bench of three learned Judges rendered on 21st July 1986
There the Court was concerned with Shrimps prawns and lobsters locally purchased for complying with export orders and after the process of cutting their heads and tails peeling deveining cleaning freezing and packing exported these outside India under prior contract of sale
It was held that after such processing shrimps prawns and lobsters retained their original identity and did not become different commodities
It was therefore held that the assessee was entitled to exemption from tax under section 53 of the in respect of purchase turnover of shrimps prawns and lobsters the purchases being of the same commodities which were exported
There the question was whether shrimps prawns and lobsters subjected to processing like cutting of heads and tails peeling deveining cleaning and freezing ceased to be the same commodity or become different commodity for the purpose of the 
This Court expressed the view that the test applied for the purpose of determining whether a commodity subjected to processing retained its original character and identity is as to whether the processed commodity is regarded in the trade by those who deal in it as distinct in identity from the original commodity or it is regarded commercially and in the trade as same as the original commodity
Every processing does not bring about a change in the character and identity of the commodity
The nature and extent of processing may vary from one case to another and indeed there may be several stages of processing and perhaps different kinds of processing at each 101 stage
With each process suffered the original commodity experiences 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 commodity that it can be said that a new commodity distinct from the original has come into being
The test is whether in the eyes of those dealing in the commodity or in commercial parlance the processed commodity is regarded as distinct in character and identity from the original commodity
See in this connection the observations of this Court in Deputy Commissioner of Sales Tax vs Pio Food Packers  Applying that test in Ms Sterling Foods vs State of Karnataka  Anr
supra the Court had found that processed or frozen shrimps prawns and lobsters were commercially regarded as the same commodity as raw shrimps
prawns and lobsters
These are in common parlance known as shrimps prawns and lobsters
There was no essential difference between raw shrimps prawns and lobsters and processed or frozen shrimps prawns and lobsters
The only difference was that processed shrimps prawns and lobsters were ready for the table while raw shrimps prawns and lobsters were not but still both are in commercial parlance shrimps prawns and lobsters
The aforesaid view also finds ample support from the decision of the Supreme Court of the United States in East Texas Motor Freight Lines vs Frozen Food Express 100 L Ed 917 at 923 where the question was whether dressed and frozen chicken was a commercially distinct article from the original chicken
The United States Supreme Court held that it was not a commercially distinct article but was commercially and in common parlance the same article as chicken
The United States Supreme Court held that killing dressing and freezing a chicken is certainly a change in the commodity
But it is no more drastic a change than the change which takes place in milk from pasteurising homogenizing adding vitamin concentrates standardising and bottling
Applying the aforesaid tests to the facts of this case we are clearly of the opinion that the High Court was right on the facts found by the Tribunal in this case that frozen frog legs is same as fresh frog legs the process was only to prevent decomposition
Reliance was placed on behalf of the revenue on a decision of the same Bench of three learned Judges of this Court in the case of Deputy 102 Commissioner of Sales Tax and another vs AB Ismail and others 1986 Suppl
SCC 218
This was a decision prior to the decision in Sterling Foods supra which as we have mentioned before was rendered on 21st July 1986 and this decision was rendered on 15th April 1986
In the subsequent decision no reference was made to the previous one because the facts were entirely different
There it was the sale of meat hides and skin got after slaughtering goat and sheep
It was held that it was taxable under section 5Ala of the Kerala General Sales Tax Act
It was further held that goats and sheeps are distinct from meat hides and skins
The process of conversion from goat and sheep into mutton hides and skin involves consumption and manufacture resulting in production of goods different from the original goods
It was held that consumption was a word of wide import
It denoted the taking in of something to convert that something into another
In that case goats and sheeps underwent a process viz slaughtering and then came into existence meat hides and skin
The slaughter of the animals and their conversion into meat was the consequence of consumption of goats in a legal sense
In such conversion a process of manufacture could also be inferred
There the Court considered the goat and sheep different from mutton from commercial circle and common parlance
But that is not as in the case of frozen frog legs and fresh frog legs and these are essentially the same commodity
In the aforesaid view of the matter we are of the opinion that the High Court was right in the view it took
The appeal is accordingly dismissed
There will be no order as to costs
NPV Appeal dismissed


Summary:
 The respondent retired from State Government service on September 1 1987 on attaining the age of superannuation
About a year after his retirement the respondent was served with a chargesheet containing allegations of misconduct and negligence for the period he was in service
Enquiry into the charges was held and respondent was afforded full opportunity to defend himself
On the conclusion of the enquiry a report was submitted by the Collector holding that one of the two charges was established while the other charge was partly proved and that the respondent s action was helpful to one of the parties which amounted to a serious default on his part as a Government servant and it was recommended that since the respondent has already retired from service a lenient view should be taken and reduction in pension to the extent of Re 1 per month be made
The State Government accepted the findings and issued orders reducing the amount of pension payable to the respondent by 50 permanently under Rule 188 of the Bombay Civil Services Rules
The respondent challenged the validity of the Government order before the High Court
A Division Bench of the High Court allowed the writ petition and quashed State Government s order on the ground that the State Government had no authority in law to take any disciplinary proceedings against respondent as he had already retired from service and the initiation of disciplinary enquiry and the order of punishment were unauthorised and illegal
Allowing the appeal by the State
partly 32  HELD 11 Rule 188 of the Bombay Civil Services Rules empowers the Government to reduce the amount of pension of a Government servant whose service has not been thoroughly satisfactory
Rule 189 expressly confers power on the Government to withhold or withdraw any part of the pension payable to Government servant for misconduct which he may have committed while in service after giving opportunity of defence in accordance with the procedure specified in Note I of Rule 33 of the Bombay Civil Services Conduct Discipline and Appeal Rules
The State Government s power to reduce or withhold pension by taking proceedings against Government servant even after retirement is thus expressly preserved by the aforesaid rules
34C F H 12 The High Court committed a serious error in holding that the State Government had no authority to initiate any proceedings against the respondent
The purpose of the enquiry was not to inflict any punishment and the proceedings were initiated for determining respondent s pension
The proceedings were taken in accordance with the Rules 188 and 189 of the Rules
35C E 13 The Government had power to reduce the pension payable to the respondent but having regard to the facts and circumstances of the case the reduction of pension by 50 was too harsh and disproportion ate to the misconduct proved against the respondent
The State Government should have taken into consideration the fact that the respondent had retired from service and the reduction of pension by 50 would seriously affect his living
The order of the High Court and the State Government s order reducing pension by 50 are set aside and the State Government is directed to reconsider the question of reduction of respondent s pension
35E F 36E G B J Shelet vs State of Gujarat  ors
   distinguished
M Narasimhachar vs The State of Mysore 1960 1 SCR 981 and State of Uttar Pradesh vs Brahm Datt Sharma  Anr 1987 2 SCC 179 referred to