Special Leave Petition Civil Nos
8747 49 of 1987
From the Judgment and order dated 9121986 of the Kerala High Court in TRC Nos
152 to 154 of 1986 VJ Francis for the Petitioner
The Judgment of the Court was delivered by 250 SABYASACHI MUKHARJI J
This is a petition for leave to appeal under Article 136 of the Constitution of India from the Judgment and order of the High Court of Kerala dated December 9 1986
The High Court by the impugned judgment dismissed the revision cases which were brought at the instance of the revenue
The assessee is a manufacturer and dealer in tiles terra cotta wares and ceramic
It was assessed to tax under Section 5A of the Kerala General Sales Tax Act 1963 hereinafter called the Act  for the assessment years 1974 75 1975 76 and 1976 77 among other things on the purchase turnover of cashew shells and consumed stores lime shells etc purchased by the assessee Company
These are in abundant supply in that area
These are used as it appears from the judgment of the High Court and from the facts found by the Tribunal as fuel in the kiln in the factory of the assessee for the manufacture of tiles and others
It was sought to be assessed to tax
The assessee contended that cashew shells were used by them as fuel for emphasis supplied manufacturing products referred to above and therefore by virtue of notification SRO 73273 the purchase turnover of cashew shells were exempt from tax
In the alternative it was contended by the assessee that the purchases in question were not liable for levy of tax since none of the conditions prescribed in clause a b or c of Section 5A of the Act were satisfied
The assessee had also purchased during the relevant years in question lime shell and certain stores described as consumed which had been used in the maintenance of the kiln and the factory
These purchases were also claimed as non taxable in view of the conditions prescribed in Clause a b or c of Section 5A of the Act being not satisfied
The assessing authority and the First Appellate Authority overruled the contentions of the assessee and brought these purchases to tax under Section 5A 1 of the Act
The relevant provisions of Section 5A1 of the Act and Clauses a b and c of the same are as follows 5 A Levy of purchase tax 1 Every dealer who in the course of his business purchases from a registered dealer or from any other person any goods the sale or purchase of which is liable to tax under this Act in circumstances in which no tax is payable under Section 5 and either 251 a consumes such goods in the manufacture of other goods for sale or otherwise or b disposes of such goods in any manner other than by way of sale in the state or c despatches them to any place outside the State except as a direct result of sale or purchase in the course of inter state trade or commerce shall whatever be the quantum of the turnover relating to such purchase for a year pay tax on the taxable turnover relating to such purchase for the year at the rates mentioned in section 5
 In second appeal the Tribunal also did not accept this case of the assessee regarding non taxability of the purchase turnover of the cashew shells under the said Notification
The Tribunal however held that the cashew shells had been used only as fuel in the kiln for the manufacture of tiles and other goods and hence Clause a of Section 5A1 of the Act was not satisfied there being no consumption of the cashew shells in the manufacture of other goods or otherwise
The Tribunal was of the opinion that these were used for the manufacture
The Tribunal also held that there was no disposal of the lime shells or the consumed stores which were used up for the maintenance of the factory and kiln and that there was also no consumption of those goods in the manufacture of other goods for sale or otherwise
In this view of the matter the Tribunal held that these items were not taxable under Section 5A of the Act
The revenue being aggrieved went to the High Court
The High Court upheld the decision of the Tribunal and rejected the revenue s contention
The construction of Section 5A of the Act came up for consideration before this Court in Deputy Commissioner of Sales Tax Law Board of Revenue Taxes Ernakulam vs Pio Food Packers 1980 Vol
46 STC 63
That was a case dealing with pineapples sliced for being sold in sealed cans
It was held that there was no consumption of the original pineapple fruit for the purpose of manufacture and the case did not fall under Section 5A1a of the Act
It was further 252 observed that although a degree of processing was involved in preparing pineapple slices from the original fruit the commodity continued to possess its original identity notwithstanding the removal of inedible portions the slicing and thereafter canning it on adding sugar to preserve it
On the construction of the section this Court observed that section 5A1a of the Act envisaged the consumption of a commodity in the manufacture of another commodity emphasis supplied
The goods purchased should be consumed the consumption should be in the process of manufacture and the result must be manufacture of other goods
Pathak J as the learned Chief Justice then was at page 67 of the report observed as follows The learned counsel for the revenue contends that even if no manufacturing process is involved the case still falls within section 5A1a of the Kerala General Sales Tax Act because the statutory provision speaks not only of goods consumed in the manufacture of other goods for sale but also goods consumed otherwise
There is a fallacy in the submission The clause truly read speaks of goods consumed in the manufacture of other goods for sale or goods consumed in the manufacture of other goods for purposes other than sale
 The cashew shells in the instant case had been used as fuel in the kiln
The cashew shells did not get transformed into the end product
These have not been used as raw materials in the manufacture of the goods
These have been used only as an aid in the manufacture of the goods by the assessee
Consumption must be in the manufacture as raw material or of other components which go into the making of the end product to come within the mischief of the section
Cashew shells do not tend to the making of the end product
Goods used for ancillary purposes like fuel in the process of the manufacture do not fall within section 5A1a of the Act
Cashew shells therefore do not attract levy of tax under the said section
The same is the position with regard to the lime shell and consumed stores which have been used only in the maintenance of the kiln and the factory and not used in the manufacture of the end product
The revenue therefore was wrong in its contention on this aspect Support was sought to be obtained from certain observations of this Court in Ganesh Prasad Dixit vs Commissioner of Sales Tax
253 Madhya Pradesh 19693 SCR 490 at page 491 where this Court was dealing with the provisions of Madhya Pradesh General Sales Tax Act 1959
There the expression used was either consumes such goods in the manufacture of the goods for sale or otherwise 
At page 495 of the report Shah J speaking for this Court observed as under Mr Chagla for the appellants urged that the expression or otherwise is intended to denote a conjunctive introducing a specific alternative to the words for sale immediately preceding
The clause in which it occurs means says Mr Chagla that by section 7 the price paid for buying goods consumed in the manufacture of other goods intended to be sold or otherwise disposed of alone is taxable
We do not think that that is a reasonable interpretation of the expression either consumes such goods in the manufacture of other goods for sale or otherwise
It is intended by the Legislature that consumption of goods renders the price paid for their purchase taxable if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise
 These observations in our opinion have no relevance to the present facts of the case
Further this very contention was negatived though without reference to Ganesh Prasad s case supra in the passage set out hereinbefore in Deputy Commissioner of Sales Tax vs Pio Food Products supra
The expression consumption otherwise must in the context mean consumption of other goods for purposes other than sale
Another contention raised before the High Court was that the goods had been disposed of otherwise than by way of sale within the State and hence liable to tax by virtue of section 5A1b of the Act The question therefore is whether there is any disposal of these goods in any manner otherwise than by way of sale within the State
Disposal means transfer of title in the goods to any other person
The expression dispose means to transfer or alienate
It was formerly an essential word in any conveyance of land
See Jowitt The Dictionary of English Law and also Webster Comprehensive Dictionary International Edn Vol 1 page 368
Clause b of the section requires that the goods in question should be transferred to some person otherwise than by way of sale
In this case there was no evidence of any transfer at all therefore there was no disposal  of the goods as 254 known to law
The High Court records that admittedly there was no transfer of the cashew shells the lime shells or the consumed stores in this case
These were used by the assessee himself as fuel in the case of cashew shells for the maintenance of kiln
Sub clause b of section 5A1 was therefore not applicable
In the background of the facts of this case the High Court in our opinion was right
The petition for leave must fail and is rejected
PSS Petitions dismissed


Summary:
 The enquiry officer s report was not made available to the respondent before the disciplinary authority passed the final order recording the finding of guilt against him
The Central Administrative Tribunal held in favour of the respondent
In the special leave petition it was contended for the Union of India that the only authority which really and actually holds the delinquent guilty need not afford any opportunity to him before finding of guilt is recorded and the material on which the authority acts
Referring the matter to a larger Bench the Court observed In the event of failure to furnish the report of the Enquiry officer the delinquent is deprived of crucial and critical material which is taken into account by the real authority who holds him guilty namely
the Disciplinary Authority
He is the real authority because the Enquiry officer does no more than act as a delegate and furnishes the relevant material including his own assessment regarding the guilt to assist the Disciplinary Authority who alone records the effective finding in the sense that the findings recorded by the Enquiry officer standing by themselves are lacking in force and effectiveness
Non supply of the report would therefore constitute violation of principles of natural justice and accordingly will be tantamount to denial of reasonable opportunity within the meaning of Article 333 2 of the Constitution
214B C There can be glaring errors and omissions in the report
Or it may 210 have been based on no evidence or rendered in disregard of or by overlooking evidence
if the report is not made available to the delinquent
this crucial material which enters into the consideration of the Disciplinary Authority never comes to be known to the delinquent and he gets no opportunity to point out such errors and omissions and disabuse the mind of the Disciplinary Authority before he is held guilty or condemned
Serving a copy of enquiry report on the delinquent to enable him to point out anomalies if any before finding about guilt is recorded by the Disciplinary Authority is altogether a different matter from serving a second show cause notice to enable the delinquent in the context of the measure of the penalty to be imposed which has been dispensed with by virtue of the amendment to article 3112 by 42nd Amendment of the Constitution
211E H Since the question whether it is the right of the delinquent to pursuade the Authority which makes up its mind as regards the guilt of the delinquent that such a finding is not warranted in the light of the Keport of the Enquiry officer was not directly in issue and has neither been presented nor discussed in all its ramifications in CA No 537 of 1988 Union of India  Ors
vs M Sivagnam decided on February 8 1988 by a Bench comprising of three Judges and the Secretary
Central Board of Excise  Customs  Ors
vs KS Mahalingam  decided by a Bench of two Judges relied on by the petitioners to contend that the point is directly or at any rate by necessary implication covered in their favour the matter is referred to a larger bench on considerations of propriety
214D G