WP(C) 6445/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR. A.K. GOEL HON’BLE MR. JUSTICE UJJAL BHUYAN (A.K.Goel, C.J.) This order will dispose of W.P.(C) No.1683 of 2010, W.P.(C) No.6445 of 2 010 and W.P.(C) No.1677 of 2010, as it is stated by learned counsel for the part ies that same issue is involved in all the three petitions. 2. In W.P.(C) No.1683 of 2012, the petitioner has challenged order dated 28 .8.2009 passed by the Commissioner of Taxes, Guwahati under Section 105 of the A ssam Value Added Tax Act, 2003 holding that process of production of soapstone p owder from soapstone did not amount to manufacturing for the tax benefits under the Assam Industries (Tax Exemption for Pipeline Unit) Order, 2005 and consequen tial order dated 3.3.2010 declining to renew certificate of entitlement. 3. Case of the petitioner is that it is producing soapstone powder from soa pstone. The process followed is as follows :- Soapstone which is also known as Steatite or Soaprock is a metamorphic r ock, a talc schist. It is largely composed of mineral talc and is rich in magnes ium. It is produced by dynamothermal metamorphism and metasomatism which occurs in the areas where tectonic plates are subducted, changing rock by heat and pres sure with influx of fluids but without melting. The said soapstone is composed o f dominantly of talc, with varying amounts of chlorite and amphiboles (typically tremolite, anthophyllite, and magnesiocumming-tonite), and trace to minor FeCr- oxides. It may be schistose or massive. Soapstone is formed by the metamorphism of ultramafic protoliths (e.g. dunite or serpentinite) and the metasomatism or s iliceous dolostones. At this stage, it may be relevant to mention that the uses of soapstone powder. The soapstone powder which the Petitioner manufactures though to the kno wledge of the people in general is used in the manufacture of talcum powder but mostly is used as an important filler material for paper, paints, rubber plastic and insecticide industries. In fact, if may be relevant herein to mention that the uses of the soapstone powder in the abovementioned industries is due to its extreme softness, smoothness, hydrophobicity, high lubricating and hiding power for its ability to absorb oil and grease. The final product what the Petitioner manufactures do not come into exis tence on the basis of just grinding of the soapstone. It has to undergo a compli cated process of treatment unlike boulders being crushed by stone crushers into powder. The process of manufacture of soapstone powder is as follows :- First, the entire raw materials which is soapstone is washed and thereaf ter the undesirable particles as well as quartz stone is separated from the basi c raw material by experienced skill manpower. Subsequent thereto, the entire mat erials upon being separated from the undesirable particles are dried. Upon being dried, the entire materials again come into a solid form. Thereafter, the said solid form is again sorted out and thereafter put in a jaw crusher whereby the s oapstone is processed into small chips. Then by a bucket elevator, it is lifted to a Hooper. In the Hooper, the materials are stored. From the Hooper by a gear pulley, the materials are sent to a Pulverisor. In the Pulverisor, a high speed swing bitter is used. The function of a high speed bitter is to pulverize and he at the materials to dry out the moisture. The fine powder which results upon bei ng pulverize and heated is swept by a section of blowers from the Chamber throug h whizzer classifier and in this process, the silica is separated by a Separator . The function of the Whizzer Blade and Cone is to check the oversized particles and regulate the mesh size by shifting the Whizzer Blade to the Cone Side. The function of the Blower is to deliver size particles to the Cyclone. In the Cyclo ne, the particles are separated from the air by centrifugal force developed in t he Cyclone. The powder so discharged from the Cyclone outlet and the separated a ir return back to the Chamber by semi round band. The excess are, grids, silica and undesirable elements which may have remained after undergoing the aforement ioned process thereafter escapes through the Dust Collector Bag connection with the semi round band. The extra find particles are collected through the Dust Col lector. It is only after undergoing the aforementioned process that the final pr oduct is received by complying with all the technical specifications which is th ereafter checked in the Laboratory. After the finished product comes into existe nce, the same are packed in 50 kg. bags for being sold and marketing. The above process would clearly show that the process of manufacturing done by physical la bour and mechanical and electrical power undergoes a very highly technical as we ll as complicated process. At this stage it may further be relevant herein to me ntion that the difference in the chemical specifications of the raw material i.e . soapstone with the finished product i.e. soapstone powder. The following is st ated herein below. Soap Stone Powder Soap Stone 1) Brightness 87 52 2) Loss on ignition at 9000C 5.0% 8.0% 3) Sand & Grit 0.4% 20.0% 4) PH of 10% solution 9.1 9.7 5) Retention on 300 mesh 1.0% Sample found in Lump 6) Moisture 0.5% 4.0% 7) Calcium as CaO Not traceable Not traceable 8) Undesirable Nil Found grits & Other foreign particles. 4. Under the Industrial Policy of the State of Assam, 2003, certain sales t ax exemption benefits have been given as per Assam Industries (Tax Exemption for Pipeline Unit) Order, 2005. Accordingly, the petitioner made an application for eligibility certificate. The District Level Committee approved the petitioner f or issuing of eligibility certificate on 2.1.2007 subject to clearance from the Sales Tax Department. Thereafter, on 7th February, 2007, after due enquiry, the sales tax department found the petitioner eligible for sales tax concession as p er conditions applicable to such exemption. Accordingly, eligibility certificate dated 9.7.2007 was issued in favour of the petitioner. Based thereon, certifica te of entitlement was also issued, which was valid from 13.6.2006 to 31.3.2007, subject to renewal from year to year. The said certificate was renewed upto 31.3 .2009. The Assistant Commissioner of Taxes in the case of M/s R.K. Chemicals wh o is W.P.(C) No.1677 of 2010 sought clarification from the Commissioner of Taxes whether production of soapstone powder from soapstone amounted to manufacturing . The Commissioner held in negative relying upon judgment of the Hon’ble Supreme Court in State of Maharastra Vs. Mahalaxmi Stores, (2003) 1 SCC 70 wherein it w as held that crushing of boulders into stone chips did not amount to manufacturi ng. According to the petitioner, the said judgment was distinguishable as crushi ng of boulders to small size was different from converting soapstone to powder b y a process which amounted to manufacture. As a result of the said process, a ne w marketable product came into existence, In any case, a view had already been t aken by the department in the case of the petitioner and eligibility certificate had been issued. The same could not be cancelled nor refused to be renewed on m ere change of opinion on a debatable issue. 5. We have heard learned counsel for the parties. 6. Learned counsel for the petitioner submits that the Department having ta ken a view that the petitioner was eligible for tax exemption, the said opinion could not be changed without any valid basis. The petitioner having acted upon t he exemption, was entitled to continue to avail the said benefit, in absence of change of situation unless it is illegal or inequitable to allow the same. It wa s also submitted that the clarification issued by the Commissioner was not justi fied as the process of grinding of soapstone amounted to manufacture in view of ratio of judgment of the Bombay High Court in Commissioner of Income Tax Vs. Pre mier General Traders Pvt. Ltd. 242 ITR 654, wherein the judgment of the High Cou rt in Mahalaxmi Stores (supra) (which has been later affirmed by the Hon’ble Sup reme Court) was held to be distinguishable. Reliance has also been placed on de cisions of Hon’ble Supreme Court in MRF Ltd., Kottayam Vs. Asstt. Commissioner ( Assessment) Sales Tax and others, (2006) 8 SCC 702; Pondicherry State Cooperativ e Consumer Federation Ltd. -Vs.- Union Territory of Pondicherry, (2008) 1 SCC 20 6 and Vadilal Chemicals Ltd. -Vs.- State of A.P. and others, (2005) 6 SCC 292. R eliance has also been placed on the definition of ’manufacturing’ under Section 2(30) of the Act, which is as follows :- 2(30) manufacture means any activity that brings out a change in an article o r articles as a result of some process, treatment, labour and results in transfo rmation into a new and different article so understood in commercial parlance ha ving a distinct name, character use, but does not include such activity of manuf acture as may be prescribed; 7. Learned counsel for the Revenue supports the view taken by the Commissio ner of Taxes. 8. We have considered the rival submissions of the parties. 9. Question for consideration is whether the Department having once held th e process undertaken by the petitioner to be ’manufacturing’, the renewal thereo f could be declined merely by change of opinion on a debatable issue. Further qu estion is whether the earlier view holding the process in question to be manufac turing was a possible view. 10. In a recent order dated 23.8.2012 in W.P.(C) No.2603 of 2011 (Sunil Kuma r Taparia -Vs.- State of Assam and others), considering the issue in identical c ircumstances in the context of Clause 12 of the Assam Industries (Tax Exemption for Pipeline Units) Order, 2005, it was observed :- 13. The above clause clearly lays down that eligibility certificate once gra nted can be cancelled only if there is violation of any condition or information furnished was found to be false or if certificate was obtained by fraud or miss tatement or suppression. The impugned order does not show either the allegation of fraud, misrepresentation or suppression on the part of the petitioner nor vio lation of any of the condition of the eligibility. Only ground on which eligibil ity certificate has been terminated is the change of opinion as to the eligibili ty of the petitioner to get the benefit. This course is clearly ultra vires the power conferred under Clause 12 of the 2005 Order, referred to above. This being the clear position, it is not necessary to go into the question whether activit y of the petitioner amounts to manufacturing in view of law laid down in the jud gment of this Court in Deepak Kumar Poddar -Vs.- State of Assam and another, (20 10) 6 GLR 835. The issue is debatable and as per opinion earlier formed by the D epartment, the petitioner was eligible. No subsequent development or suppression or misrepresentation by the petitioner has been pointed out. In these circumsta nces, the impugned orders cannot be sustained. 11. Following the above, we conclude that mere change of opinion at a belate d stage cannot be a ground for declining eligibility certificate and entitlement thereof granted after due consideration in absence of fraud, misrepresentation or suppression on the part of the assessee. This view is also supported by judgm ents relied upon on behalf of the petitioner. Moreover, earlier view granting el igibility to the petitioner was certainly a possible view. Questions are answere d accordingly. Accordingly, the impugned orders in W.P.(C) No.1683 of 2010 and W .P.(C) No.1677 of 2010 are quashed. The matter may now be decided afresh in acco rdance with law within three months. 12. As regards W.P.(C) No.6445 of 2010, it is pointed out that though case o f the petitioner is identical to W.P.(C) No.1683 of 2010 and W.P.(C) No.1677 of 2010, the Department is not following the view taken in the said cases in view of order of Commissioner dated 28.8.2009. Once the Department has taken a view f or eligibility for exemption under the scheme which has been held to be possible view not open to be changed on mere change of opinion, it will not be fair to t ake a different view in different cases. We find merit in this contention. 13. Accordingly, we direct that Respondent No.5 may take a decision in the l ight of the above observation within two months from the date of receipt of a co py of this order. Writ petitions stand disposed of accordingly.