2018 ACR 677 High Court Kerala
M/S. TMT GRANITES (PVT) LTD. VERSUS THE COMMISSIONER STATE GST DEPARTMENT, KERALA, TRIVANDRUM, THE DEPUTY COMMISSIONER OF STATE TAX STATE GST DEPARTMENT, PALAKKAD, THE ASSISTANT COMMISSIONER (ASSESSMENT) , PALAKKAD AND THE STATE OF KERALA REPRESENTED BY ITS SECRETARY (TAXES DEPARTMENT) , THIRUVANANTHAPURAM
MR DAMA SESHADRI NAIDU, J.
No.- WP (C). No. 31159 of 2018 dated November 22nd 2018

Note –

Company uses HSD oil as its fuel in its quarrying operations. With that fuel it runs its machinery and also its motor vehicles. If a dealer is engaged both in mining operations and the manufacturing process-the two processes being interdependent-it would be impossible to exclude vehicles used for removing the mined (here’quarried’) material from the place of operation to other places.

Respondents directed to allow petitioner to download necessary C Forms for purchase of HSD.

 

Present:

For The Petitioner : ADV. SRI. PHILIP J. VETTICKATTU

For The Respondent : ADV. GOVERNMENT PLEADER

JUDGEMENT

Introduction:

Mining and quarrying, as we know, are related, yet distinct activities. One concerns the major minerals, and the other minor minerals. One involves the prospecting or extracting, the other mere excavation. Their semantic nuances apart, can we treat “quarrying” as an act of “mining”? We will answer.

Facts:

  1. TMT Granites (Pvt.) Ltd., a dealer under the KVAT Act, quarries and crushes minor minerals; that is, the granite and other building materials. It uses much machinery and many vehicles in its quarrying operations and also the connected crushing operations. To fuel its machinery and vehicles, the Company uses High Speed Diesel(HSD). So the Company claims concession for the HSD and wants to download CForms. Access denied, the Company has filed this writ petition.

Submissions:

Petitioner’s:

  1. Sri Philip J. Vettickattu, the learned counsel for the petitioner, strenuously contends that the Company can claim tax concession on the HSD it purchases. According to him, Section 8 of the Central Sales Tax Act, 1956 (“CST Act”) enables the Company to claim that advantage.
  2. As Section 8 of the Act refers only to mining, Sri Vettickattu has taken me through a few lexical provisions of certain statutes: Section 3(d) of the Mines and Minerals (Development and Regulation) Act, Section 2(j) of the Mines Act, 1952, and also the Kerala Minor Mineral Concession Rules, 2015.
  3. Sri Vettickattu has taken pains to explain that the fuel consumed for the machinery and the motor vehicles must alike be treated as the goods enjoying the tax benefit under Section 8 of the CST Act. To support his contentions he has relied on Indian Copper Corporation Ltd., v. Commissioner of Commercial Taxes AIR 1965 SC 891, J.K. Cotton Spinning and Weaving Mills Co., Ltd., v. Sales Tax Officer AIR 1965 SC 1310, Bihar Mines Ltd., v. Union of India AIR 1967 SC 887, All Kerala River Protection Council v. State of Kerala 2015 (2) KLT 78, D.K. Trivedi and Sons v. State of Gujarat AIR 1986 SC 1323.
  4. Dr.Thushara James, the learned Government Pleader, on the other hand, has strenuously contended that the mining and quarrying are entirely different activities. According to her, the Government grants mining permit, whereas the Department of Geology grants quarrying permit. She has also submitted that mining concerns itself with major minerals and the quarrying with minor minerals. The former is extracted subsoil and the latter super-soil.
  5. Dr. James has also contended that the Kerala Value Added Tax Act, especially Section 8, covers only the consumables related to mining activity. In this regard, she stresses that the Company’s using motor vehicles for transporting the quarried material falls outside Section 8 of the CST Act. According to her, transportation is an activity unconnected to the quarrying, even if quarrying were to be equated with mining.
  6. Taking me through all the statutory provisions which the petitioner’s counsel referred to earlier, Dr. James has made valiant efforts to convince me that the Company’s demand for tax concession or exemption cannot be sustained. Dr. James would contend that none of the judgments the Company has relied on draws out the fundamental distinction between mining and quarrying. That issue is sub silentio- accepted ‘in silence’, without adjudication. Instead, these judgments concerned themselves either with the permits granted, mostly, for mining. So those judgments, she asserts, could be distinguished. In the end, she urges the Court to dismiss the writ petition.
  7. Heard Sri Philip J. Vettickattu, the learned counsel for the petitioner, and Dr. Thushara James, the learned Government Pleader. Discussion:
  8. The petitioner-Company, a registered dealer under the KVAT Act and the Central Sales Tax Act, 1956, has been engaged in quarrying and crushing of granite metals. It uses several items of machinery and motor vehicles for its quarrying operations. It claims that the machinery and the motor vehicles are “integrally connected” with its business. For its machinery and vehicles, the Company uses HSD Oil as fuel. As the Company needs huge quantities of oil, Hindustan Petroleum Corporation has allowed it to have its own filling station.
  9. So the Company Wanted to take advantage of Section 8 of the CST Act. For that purpose, the Company wanted to download C forms from KVATIS, the department’s online portal. Access denied, the Company submitted applications in November and December 2017, requesting the authorities to let the Company to access the C forms. Though departmentally the Company’s applications were considered, eventually nothing came out of it. Aggrieved, the Company has filed this Writ petition.
  10. I reckon much depends on what Section 8 of the CST Act says. The provision, to the extent relevant, reads:

Section 8. Rates of tax on sales in the course of inter-State trade or commerce:-

(1) Every dealer, who in the course of inter-State trade or commerce, sells to a registered dealer goods of the description referred to in sub-section (3), shall be liable to pay tax under this Act, which shall be three per cent of his turnover or at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State, whichever is lower:

. . .

(2) . . .

(3) “The goods referred to in sub-sec. (1), ”

(a)[* * * * * *]

(b) are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for re-sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture of processing of goods for sale or in the telecommunications network, or in mining or in the generation or distribution of electricity or any other form of power;

. . .

(italics supplied)

  1. From the above provision, we can gather that a dealer gets a tax concession. To get that concession, it must fulfill certain conditions: (a) the dealer must be dealing in inter-State trade or commerce, (b) it must be selling to registered dealers goods as described in sub-section (3), and (c) it must be paying tax under the CST Act. These conditions fulfilled, the dealer can pay tax at “three per cent of its turnover or at the rate applicable to the sale or purchase of such goods inside the appropriate State under the sales tax law of that State, whichever is lower.”
  2. Sub-section (3) (b) of Section 8 specifies the goods. Among them included are “the goods specified in the certificate of registration of the registered dealer for use by it in the manufacture or processing of goods for sale” or in “mining”. The Company, however, carries quarrying operations. So the question is, can “quarrying” be equated with “mining”?

Mining and Quarrying:

  1. First, we will examine the definitional dynamics of the words “mine” and “quarry”. According to Dictionary of Mining, Mineral, & Related Terms, compiled by the U.S. Bureau of Mines,6 “quarry” is an open or surface mineral working, usually for the extraction of building stone, such as slate, limestone, and so on. “It is distinguished from a mine because a quarry usually is open at the top and front” and, in ordinary use of the term, by the character of the material extracted. It is also defined as an underground excavation formed in the roof, or fault, for obtaining material for pack walls.
  2. The same lexicon defines “mining” as the science, technique, and business of mineral discovery and exploitation. Strictly, “the word connotes underground work directed to severance and treatment of ore or associated rock. Practically, it includes opencast work, quarrying, alluvial dredging, and combined operations, including surface and underground attack and ore treatment.”
  3. The Shorter Oxford English Dictionary defines “quarry” as an open-air excavation from which stone for building, etc., is or has been obtained by cutting, blasting, etc. Any place from which stone may be extracted. The same dictionary defines “mine” as an excavation or a system of excavations in the earth for the extraction of metal, metallic ore, coal, salt, etc. Lexically, true, both “quarrying” and “mining” are distinct activities with different objectives. But the question is, does this distinction survive legislatively. In Section 8 of the CST Act, only mining is found mentioned, though.
  4. In Bihar Mines Ltd., of the Constitution Bench, Bachawat J., wrote a concurring judgment, supplementing the lead judgment by Raghubar Dayal, J. His Lordship has elaborated on “mining” and “winning minerals.” That discussion may not help here.

Legislative Definitions:

  1. Section 2 (j) (iv) of the Mines Act, 1952, defines “mine” to mean “any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on.” And this excavation includes (i) all borings, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oil fields; (ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not; (iii) all levels and inclined planes in the course of being driven; (iv) all opencast workings.
  2. Section 2 of the Mines and Minerals (Development and Regulation) Act, 1957, deals with the “Declaration as to the expediency of Union control”: in the public interest the Union should control and regulate the mines and develop the minerals to the extent provided in the Act. Then, Section 3(aa) inclusively defines “minerals”: all minerals except mineral oils qualify under the definition.
  3. Section 3 (c) defines “mining lease”. It is a lease granted “for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose.” And, under Section 3(d), “mining operations” means any operations undertaken for winning any mineral. Indeed, under Section 15 of that Act, the State Government has the power to regulate the minor minerals. It may regulate the grant of “quarry leases, mining leases, or other mineral concessions” in respect of minor minerals and for purposes connected therewith.
  4. Rule 2 (xvi) of the Kerala Minor Minerals Concession Rules 2015 defines “quarrying lease” to mean a mining lease for minor minerals granted under these rules for a period as specified in Rule 39. Rule 15 deals with the “removal of overburden by a quarrying permit holder.”
  5. To elaborate, Rule 15 permits a person with a quarrying permit for extracting minerals also to extract “overburden from the area under the permit without obtaining a quarrying permit,” if such extraction is inevitable for him to extract the mineral under the permit.

Judicial View:

  1. In D.K. Trivedi and Sons, the petitioner raised questions relating to the constitutionality of Section 15(1) of the Mines and Minerals (Regulation and Development) Act, 1957, the power of the State Governments to make rules under Section 15 to enable them to charge dead rent and royalty in respect of leases of minor minerals granted by them. Also in question was the validity of Rule 21-B of the Gujarat Minor Mineral Rules, 1966.
  2. D.K. Trivedi has exhaustively analysed the statutory gamut of mining and quarrying of both the major and minor minerals. It has examined the legislative history and also the federal distribution of powers on the subject: mining. Referring to the States’ powers, it observes that under Section 15(1) of the 1957 Act various State Governments have made rules in respect of minor minerals. Although these rules vary from State to State, there are certain broad features present in all of them. The majority of States provide for two types of mineral concessions: a lease on tenure basis and a permit to extract a specified quantity of a minor mineral. In all the States, the rules provide for the grant of a lease for a particular term, varying from one year to twenty years. These leases are variously described in different State rules as “mining lease”, “quarrying lease” and “quarry lease”, and are similar to the mining leases granted under the Mineral Concession Rules, 1960.
  3. Then, D.K. Trivedi has paid particular attention to the Gujarat Minor Mineral Rules, in the statutory backdrop of Section 15(2). The term “minerals”, as we have already noted, is defined by Clause (a) of Section 3 as including “all minerals except mineral oils”. This definition would thus include, according to D.K. Trivedi, minerals which are minor minerals as also minerals other than minor minerals. The term “minor minerals” is, however, separately defined by Clause (e) because the power to make rules for them is vested by Section 15(1) in the State Governments. Of course, the power to make rules with respect to minerals other than minor minerals is vested in the Central Government.
  4. D.K. Trivedi rejects the plea that the power to fix from time to time the rate of royalty under Sub-section (3) can only apply to mining leases and other minor mineral concessions and not to quarry leases. To analyse this contention, it notes that Sub-section (3) of Section 15 speaks of a “mining lease or any other mineral concession”, while Subsection (1) of Section 15 speaks of “quarry leases, mining leases or other mineral concessions”. Under Clause (c) of Section 3, “mining lease”, among other things, means “a lease granted for the purpose of undertaking mining operations”. Under Clause (d) of Section 3, the expression “mining operations” means “any operations undertaken for the purpose of winning any mineral”. “Quarry”, we have already seen, is to excavate stone for building, etc. by cutting, blasting, or the like. Relying on the lexical meaning of quarrying, D.K. Trivedi has emphatically held that “quarrying minerals is, therefore, a mining operation inasmuch as it consists of an operation undertaken for the purpose of winning particular classes of minerals.”
  5. Then, D.K. Trivedi refers to Clause (vi) of Rule 2 of the Gujarat Rules. That Rule defines “quarry lease” as “a kind of mining lease in respect of a minor mineral granted under these rules.” In this context, we will, here, examine Rule 2 (xvi) of the Kerala Minor Mineral Concession Rules, 2015. It is, in fact, in para materia with the Gujarat Rule: “Quarrying Lease” means a mining lease for minor minerals granted under these rules for a period as specified in rule 39; Quarry leases are, therefore, included in the term “mining leases”, so holds D.K. Trivedi. And so must we.
  6. To cap the discussion, I may refer to the Division Bench’s judgment in All Kerala River Protection Council. It has dealt with, among other things, the environmental issues concerning the mining and quarrying in the State of Kerala. After an exhaustive analysis of the legal position on the issue, the Division Bench has held that mining operation is a wider term, which shall include mining operations by any means; that is, mining lease, quarrying lease, mining permit, and so on. Therefore, the irresistible conclusion is that mining referred to in Section 8 of the CST Act encompasses the quarrying as well. And the Company, here, is quarrying.

Fuel for Mining or Quarrying Operations: Does the fuel for the transport vehicles, too, fall within Section 8 of the CST Act?

  1. The petitioner Company is a dealer under Section 8 of the CST Act. That assertion admits of no contradiction. But the Company claims benefits under Section 8 of the CST Act. The question is whether the fuel it uses for its machinery and vehicles qualifies for that benefit, as we now accept that the Company is in mining activity.
  2. The goods referred to in clause (b) of sub-section (3) of Section 8, which a registered dealer may purchase, shall be goods intended for use by him as raw materials, processing materials, machinery, plant, equipment, tools, stores, spare parts, accessories, fuel, or lubricants, in the manufacture or processing of in the telecommunications network or in mining, or in the generation or distribution of electricity or any other form of power.
  3. In Indian Copper Corporation Limited, the petitioner applied to the tax authorities for registration as a dealer under the Central Sales Tax Act, setting out a list of goods for specification in the certificate of registration under section 8 of the Act. The authority issued the certificate of registration to the petitioner excluding certain categories of goods which the Corporation claimed should be specified under section 8(3)(b) of the Act. The Corporation then filed a writ petition. The High Court of Patna allowed it in part; it asked the authority to include only a few of the goods the petitioner had insisted on. Notably, it excluded the motor vehicles.
  4. To have the rest of the goods, too, included in the certificate of registration, the petitioner approached the Supreme Court. Then, the Court analysed, among other things, Section 8 of the CST Act. It has held that the “locomotives and motor-vehicles” are used by the petitioner “after the mining operations were concluded and before the manufacturing process commenced,” and also to carry the finished products. In that context, the Supreme Court has observed:

“[w]e are also of the opinion that in a case where a dealer is engaged both in mining operations and in the manufacturing process – the two processes being interdependent – it would be impossible to exclude vehicles which are used for removing from the place where the mining operations are concluded to the factory where the manufacturing process starts. It appears that the process of mining ore and manufacture with the aid of ore copper goods is an integrated process and there would be no ground for exclusion from the vehicles those which are used for removing goods to the factory after the mining operations are concluded. Nor is there any ground for excluding locomotives and motor-vehicles used in carrying finished products from the factory. The expression “goods intended for use in the manufacturing or processing of goods for sale” may ordinarily include such vehicles as are intended to be used for removal of processed goods from the factory to the place of storage.

  1. In J.K. Cotton Spinning and Weaving Mills, the Supreme Court has followed Indian Copper Corporation. It has held that Section 8(3)(b) authorises the Sales Tax Officer to specify the goods intended for use by the dealer in the manufacture or processing of goods for sale or in mining, and so on. By Rule 13, the Central Government has prescribed the goods referred to in s. 8(3)(b) : such goods must be intended for use in the manufacture or processing of goods for sale or in mining or generation or distribution of power, and the intended use of the goods must be as specified in Rule 13. It is true that under Rule 13, read with Section 8(3)(b), mere intention to use the goods in the manufacture or processing of goods for sale will not be a sufficient ground for specification; the intention must be to use the goods as raw materials as processing materials, machinery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants. Then the Court has held:

“In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process or activity manufacture may, even if theoretically possible, be commercially inexpedient, goods intended for use in the process or activity as specified in Rule 13 will qualify for special treatment. This is not to say that every category of goods “in connection with” manufacture of or “in relation to” manufacture, or which facilitates the conduct of the business of manufacture will be included within Rule 13. Attention in this connection may be invited to a judgment of this Court in which it was held that vehicles used by a Company (which mined ore and turned out copper in carrying on activities as a miner and as manufacturer) fell within Rule 13, even if the vehicles were used merely for removing ore from the mine to the factory, and finished goods from the factory to the place of storage. Spare parts and accessories required for the effective operation of those vehicles were also held to fall within Rule 13.”

  1. Veering back to the facts, I may observe that the Company uses HSD oil as its fuel in its quarrying operations. With that fuel it runs its machinery and also its motor vehicles. In Indian Copper Corporation Ltd., the Supreme Court has discussed thread bear the legislative nuances of Section 8, especially Section 8(3)(b), of the CST Act. On facts too, the Company’s case accords with Indian Copper Corporation Ltd.
  2. Indeed, the Government Pleader has contended that the Company, if it were in mining activity, may have justification to claim tax concession for the fuel it uses for running its machinery. But she has strongly opposed the Company’s claim on the fuel it uses to run its motor vehicles. On that count, the ratio of Indian Copper Corporation Limited is resounding. Their Lordships have held that if a dealer is engaged both in mining operations and the manufacturing process-the two processes being interdependent-it would be impossible to exclude vehicles used for removing the mined (here’quarried’) material from the place of operation to other places.

Under these circumstances, the writ petition deserves to be allowed and it is allowed. As a result, I direct the respondents to permit the petitioner Company to have access to the on-line facility- KVATIS- so it can download the necessary C-forms. Besides that, I also direct the respondents 1 to 3 to dispose of the petitioner’s Ext.P7 application at the earliest.