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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2650  OF 2016 [Arising out of SLP(C) No. 22191 OF 2013]

Commissioner of Commercial Tax, U.P.        ... Appellant

Versus

M/s. A.R. Thermosets (Pvt.) Ltd.        ... Respondent

J U D G M E N T

Dipak Misra, J.

In this appeal, by special leave, the Revenue has called

in  question  the  legal  sustainability  of  the  judgment  and

order passed by the High Court of Judicature at Allahabad

in Commercial Tax Revision no. 1156 of 2009 preferred by

the assessee-respondent under Section 11 of the U.P. Trade

Tax Act, 1948 (for brevity, ‘the 1948 Act’) read with Sections

81 and 58 of the VAT Act, 2008 (for short, ‘the VAT Act’)

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whereby the learned Single Judge has allowed the revision

negativing the stand put forth in opposition by the State to

the stance highlighted by the assessee.

2. The facts on which the controversy rests is in a narrow

compass.  The  respondent  manufactures  “bitumen

emulsion”.  It filed an application before the Commissioner,

Commercial Taxes, Lucknow, U.P. under Section 59 of the

VAT  Act  seeking  a  clarification  about  the  rate  of  tax

applicable  to  the  sales  of  bitumen  emulsion.   The

Commissioner  of  Commercial  Taxes,  vide  order  dated

23.1.1999 opined that bitumen emulsion is an unclassified

commodity and, therefore, is excisable to tax at the rate of

12.5% as it would fall under the residuary Entry.   

3. Being  aggrieved  by  the  order  dated  23.1.1999,  the

respondent preferred Appeal No. 6 of 2009 under the VAT

Act before the Tribunal Commercial Taxes, U.P., Lucknow

(for short ‘the tribunal’) which was heard by the Full Bench.

It  was  contended  before  the  tribunal  by  the

assessee-appellant therein that bitumen as a commodity is

taxed at 4% under Serial no. 22 Part A of Schedule II to the

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VAT Act and bitumen is found in solid state and to bring it

in  the  liquid  form,  water  is  added  to  it  and  very  little

quantity  is  used  in  the  process.   Elaborating  the  said

submission, it was urged that when bitumen is available in

the liquid form, it  is  known as bitumen emulsion and is

commonly  known as  bitumen when it  is  available  in  the

solid form; and both the commodities are understood in the

same manner in the commercial world and the end use is

the same and, therefore, the rate of  tax to be determined

has to be the same as prescribed for bitumen.  

4.  Be  it  stated,  as  per  Notification  No.  100  dated

15.1.2000 issued under the erstwhile U.P. Trade Tax Act,

1948,  bitumen  was  taxed  at  20%.   Under  the  VAT  Act,

bitumen has been classified under Part A of Schedule II and

the  tax  leviable  is  4%.   Before  the  tribunal,  the

assessee-appellant produced reports from Harcourt Butler

Technical Institute, Kanpur to bolster the stand that there

is no difference between the two commodities and they are

to be categorised as one item, if  common parlance test is

applied.  To buttress the submissions, the assessee relied

upon               CST v. Ashok Grah Udyog Kendra Private

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Ltd.1,  CST v. Bechu Ram Kishori Lal2, and M/s Indodan

Milk Products v. Commissioner Sales Tax3.  The tribunal

referred to one of its earlier decisions in appeal no. 17 of

2000  decided  on  3.4.2009  and  on  the  basis  of  reasons

ascribed therein dismissed the revision.   

5. The  dissatisfaction  caused  by  the  said  adjudication,

constrained  the  assessee  to  approach  the  High  Court  in

Commercial Tax Revision no. 1156 of 2009.  The High Court

formulated the point in issue which reads as follows:-

“Whether  the  Bitumen  and  Bitumen  Emulsion are  one  and  the  same  commodity  for  the purposes  of  interpretation  of  Entry  No.  22 Schedule II Part A of the U.P. Value Added Tax Act,  2002  as  was  originaly  enacted  i.e.  upto enforcement  of  notification  no.  2758  dated 29.9.2008?

6. The  learned  Single  Judge  took  note  of  the  various

technical  materials  from  the  Government  approved

laboratory which had been brought before the tribunal, and

opined  that  the  controversy  had  not  been  appositely

appreciated  by  the  tribunal,  for  the  materials  clearly

establish that bitumen and bitumen emulsion is the same

1  (2004) UPTC 1827 2  (1976) 36 STC 236 3  (1974) 33 STC 381

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thing.  The High Court analysed the concept of end use, i.e.

the end result of bitumen emulsion and came to hold that

bitumen emulsion makes the bitumen easily usable in its

emulsified  form  and  both  the  items  are  used  in  the

construction of road, etc.  It further opined that the identity,

commercial  character and use of  both the things are the

same,  though  the  tribunal,  despite  having  the  material

before  it,  proceeded  to  record  findings  otherwise.   That

apart, the High Court took note of the decision of this Court

in Commissioner of Central Excise, Bangalore v. Osnar

Chemical  Private  Limited4 and  ultimately  ruled  that  it

could  not  be  said  that  mixing  of  some  material  would

amount to manufacture unless it results in a change when

the  commodity  concerned  cannot  be  recognised  as  an

original  commodity  but  rather  new  and  distinct  article

emerges having different commercial use and identity.  On

the basis of the aforesaid analysis, the High Court allowed

the revision and set aside the orders of the forums below.  

7. We  have  heard  Mr.  Pawan  Shree  Agarwal,  learned

4 (2012) 2 SCC 282

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counsel  for  the  appellant  and  Mr.  Kavin  Gulati,  learned

senior counsel along with Mr. Avi Tandon, learned counsel

for the respondents.   

8. Criticising the view of the High Court, it is submitted

by Mr. Agarwal that it has erred in opining that bitumen in

its emulsified form also remains bitumen.  He has drawn

inspiration from the  language used in Section 2(t)  of  the

VAT Act to structure the submission that in the process of

conversion,  manufacturing  takes  place.   It  is  his  further

argument  that  the  decision  in  Osnar  Chemical  Private

Limited (supra) is not applicable to the present controversy

as  the  said  decision  was  rendered  in  the  context  of  the

Central Excise Act, 1944 whereas the  lis herein hinges on

the definition of manufacturing.  For the said purpose, he

has  relied  upon  the  authority  in  Sonebhadra  Fuels  v.

Commissioner,  Trade  Tax,  U.P.,  Lucknow5.   Learned

counsel  for  the  Revenue  contends  that  when  the  view

expressed by the lower authorities is neither perverse nor

arbitrary,  the  High  Court  in  exercise  of  its  revisional

jurisdiction should not have interfered with the findings and

5  (2006) 7 SCC 322

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for the said purpose he has commended us to the authority

in N. Eswari v. K. Swarajya Lakshmi6.   Mr. Agarwal has

canvassed  that  the  intention  of  the  legislature,  as  is

manifest, is to charge a particular rate of tax on bitumen

and it remotely does not conceive of bitumen emulsion and

the Court should not enlarge the scope of legislation or the

intention of it by adding a word to the term in the statute,

which  is  not  permissible,  for  a  taxing  statute  has  to  be

understood what is clearly stated therein and not what is

intended to be said.   

9. Mr.  Gulati,  learned senior  counsel  appearing for  the

assessee in support of the view expressed by the High Court

would contend that four principles relating to interpretation

of entries and taxing statute are required to be considered

in the present case.  According to Mr. Gulati, they are (a)

plain meaning to be given to the taxing provision; (b) burden

to prove classification in a particular Entry is always on the

Revenue; (c) any ambiguity has to be resolved in favour of

the assessee; and (d) resort to residuary Entry is to be taken

as a last measure.  He would put forth that in the instant

6  (2009) 9 SCC 678

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case, the Revenue, prior to taxing the respondent under the

residuary  Entry,  did  not  place  any  evidence  before  the

Commissioner or the tribunal to show that the emulsified

bitumen is not covered by the expression bitumen as found

in Entry 22 of Part A of Schedule II to the VAT Act.  It is

urged  by  him,  whether  the  activity  of  mixing  water  with

bitumen amounts to manufacture under Section 2(t) of the

VAT Act is wholly irrelevant for deciding the issue at hand.

It is, according to Mr. Gulati, where goods are purchased on

paying tax and process thereafter is undertaken, a question

often  arises  as  to  whether  such  process  amounts  to

manufacture or not, and if it amounts to manufacture, then

it  would  enable  the  department  to  levy  tax  again  as  the

commodity in different, a new one,  for the purposes of this

Act and the tax can be imposed as a single point levy again,

but in the case at hand,  that is not the situation.  Learned

senior counsel further submits that every process involved

in  the  manufacture  of  a  commodity  does  not  relate  to

manufacture of a new product as the end product continues

to retain the character of the original product.  According to

him, solely because some process has been carried out, it

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cannot be held that a new product has come into existence.

Expatriating the said submission,  it  is  put forth that the

process  of  heating  on  high  degree  temperature  and  then

adding water  to it  to  obtain emulsified bitumen does not

alter the basic nature of bitumen but only brings a change

in physical appearance of the product.  He has heavily relied

on  Osnar Chemical Private Limited (supra)  to highlight

that bitumen would include bitumen emulsion.  

10. The principal controversy, as we perceive, is “whether

“bitumen emulsion” is covered within Entry 22 of Schedule

II  of  the  VAT  Act  which  only  refers  to  “bitumen””.

According  to Academic  Press  Dictionary  of  Science  and

Technology, “bitumen” means:-  

“Bitumen  Geology  and  naturally  occurring flammable  substance  mainly  of  a  mixture  of hydrocarbons such as petroleum or asphalt.

Materials  1.  Originally,  a  type  of  asphalt occurring naturally in Asia Minor. 2. Any similar black, sticky mixture of hydrocarbons occurring naturally or pyrolytically in the atmosphere and completely soluble in carbon disulfide: obtained mainly from natural oxidized petroleum products or from a petroleum distillation process.”

11. The McGraw-Hill  Concise Encyclopedia of  Science  &

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Technology (Third Edition) defines “bitumen” as under:-

“Bitumen  A  term  used  to  designate  naturally occurring or pyrolytically obtained substances of dark to black color consisting almost entirely of carbon  and  hydrogen  with  very  little  oxygen, nitrogen,  and  sulphur.  Bitumen  may  be  of variable  hardness  and  volatility,  ranging  from crude oil to asphaltites and is largely soluble in carbon disulfifde.”

12. The above definitions when appreciated clearly show

that  they  expressively  define  the  word  “bitumen”  as  a

commodity and explain its chemical composition, colour or

appearance and qualities and the process by which it comes

into existence.  

13. Bitumen  emulsion,  as  per  Indian  standards  ICS

293.08.0.20 published by the Bureau of Indian Standards is

a destruction of very fine particles in an aqueous medium.

Harcourt  Butler  Technological  Institute,  Kanpur,  in  its

report dated 11.4.2008 states that:-

“The  components  derived  from  fractional distillation of petroleum, at various temperature levies, are (I) Gas (II) Naphtha, (III) Kerosene, (IV) Diesel  and  lubricating  oil,  (V)  Bitumen  and furnace  oil,  and  (VI)  residue.   This  bitumen is known as penetration grade bitumen because the specification,  by  which  it  is  designated,  is obtained from the penetration test.  There could be  two  other  forms  of  Bitumen:  Namely  (I)

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Emulsion  and  (II)  Cutback.   In  the  emulsion, bitumen  is  in  the  suspension  from  as  small globules  in  water,  whereas  in  cutback,  the bitumen  is  dissolved  in  suitable  solvent.   In bituminous  construction,  the  choice  between penetration  grade  bitumen  and  the  bitumen emulsion  is  made  depending  upon  the  factors like,  weather  conditions,  availability,  economy and available construction time.”

14. The  said  report  discussing  about  its  composition

explicates:-

“Bitumen is basically a hydrocarbon with 10% by weight of atoms of sulphur, nitrogen and oxygen, attached to hydrocarbon molecules.  The carbon content  in  bitumen  is  80-87%.   Three  basic components  of  bitumen  are  (I)  asphaltene,  (II) maltene and (III) carbine.  The chemical bonds in bitumen  are  weak  and  break  when  heat  is applied.  When it is cooled, it comes back to its original structure, but not necessarily the same as before.”

15. The  said  report  has  further  proceeded  to  state  that

emulsion is a two phase system consisting of two immiscible

liquids, one being dispersed as finite globules in the other.

In bitumen emulsion,  bitumen globules are  suspended as

emulsion in water with the help of  emulsifiers,  which are

used to stabilize the emulsion.  Emulsifiers break into ions

and charge the bitumen particles.  Charged particles repel

each  other  and  the  suspension  remains  stable  and  this

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stability remains as long as water does not evaporate, freeze

or emulsifier does not break.

16. About  the  characterization  of  the  bitumen,  report

states:-

“Bitumen  materials  have  certain  characteristics such  as  (I)  waterproofing  (II)  durability,  (III) resistance  to  strong  acids  and  (IV)  cementing properties.   At  normal  temperature,  bitumen  is semi-solid  and  takes  time  to  flow.   At  higher temperatures,  it  behaves  like  a  viscous  liquid, whereas  at  very  low  temperature,  is  brittle  as glass.  Bitumen  is  believed  to  behave ‘viscoelastically’  at  the  standard  operating temperature at highways.”

17.  According to the report when a state of liquefaction is

achieved and the same is constant for a longer period, it can

be used under diverse moisturic conditions and has a very

wide range of applications such as surface dressing of low

volume roads, curing purposes base for high volume roads,

surface  dressing,  tack  coat,  premix  carpets,  soil

stabilization, etc.  The report has clearly stated that the use

of bitumen is because of its characteristics which includes

cementing properties.  Be it noted, the use of both bitumen

and bitumen emulsion is similar, that is, surface dressing,

tack  coat,  premix  carpets,  soil  stabilization,  etc.  The

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concluding remarks of the report is extracted below:-  

“Bitumen  and  Emulsion  are  two  forms  of bituminous  binders  which serve  some common purposes in road construction and maintenance. Bitumen and emulsion are  selected for  various applications  depending  upon  some  parameters like weather  conditions,  availability  of  material, economic aspects and availability of construction time.   Bitumen  needs  preheating  whereas emulsion is ready to use.  It has been observed from previous studies that the physical properties of  the  emulsion  after  natural  sun  drying  are almost  similar  to that  of  bitumen as the water present.  In the binder evaporates and makes the matrix harder as obtained with the bitumen.  It may,  therefore,  be concluded that bitumen and emulsion may be treated at par as far  as their significance  for  application.   In  their  respective area is concerned.”

18. A reading of the aforesaid definitions and the scientific

text clearly reveal that bitumen in its original form is solid

but melts when heated, for it is used in molten stage.  There

is no difficulty to appreciate that bitumen emulsion comes

into existence when bitumen is treated with emulsifiers and

other  chemicals  to  attain  a  liquid  form.   It  has  a  huge

advantage and add benefit because it is not to be heated

and detained in its liquid form and has better stability and

thus,  saves  time  and  cost  components.   That  apart,  it

ensures its use at the stage of application.  Needless to say

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it is comparatively less hazardous.  Bitumen consists of four

forms of variants, namely, solid bitumen, polymer bitumen,

crumbler rubber modified bitumen and bitumen emulsion.

The stand of the Revenue is that the word “bitumen” must

be  conferred  a  narrow  meaning  for  the  reason  that  the

legislature has not thought it appropriate to use the prefix

or suffix like “all”, in all forms or of all kinds.  It may be

immediately clarified that bitumen is a generic expression

which would include different types of bitumen.  Revenue,

however, as stated earlier, intends to apply it restrictively.

The said submission has a fundamental fallacy.  Entry 22

does  not  exclude  or  specify  that  it  would  not  include

bitumen of all types and varieties.  This is not the principle

or  precept  applied  to  interpret  the  entries  under  the

Schedule of the Act.  We will be deliberating in detail on the

said aspect at a later stage.  Prior to that, we would like to

advert to certain other aspects.  

19. At the very inception, we think it absolutely seemly to

state that the nature and composition of the product or the

good and the particular entity in the classification table is

important.  Matching of the good with the Entry or Entries

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in the Schedules is  tested on the basis of  identity of  the

goods in question with the Entry or the contesting entries

and by applying the common parlance test, i.e., whether the

goods as  understood  in commercial  or  business  parlance

are  identical  or  similar  to  the  description  of  the  Entry.

Where such similarity in popular sense of meaning exists,

the  generic  entity  would  be  construed  as  including  the

goods in question.  Sometimes on certain circumstances the

end use test, i.e., use of the good and its comparison with

the Entry is applied.

20. The Entry in question uses the word “bitumen” without

any further stipulation or qualification.  Therefore, it would,

in  our  opinion,  include  any  product  which  shares  the

composition  identity,  and  in  common  and  commercial

parlance is treated as bitumen and can be used as bitumen.

When we apply the three tests, namely, identity, common

parlance  and  end  use  to  the  goods  and  the  Entry  in

question, bitumen emulsion would be covered by the Entry

bitumen.  It  is  worthy  to  note  that  bitumen  emulsion

matches  the  Entry  as  it  is  only  one  of  the  varieties  of

bitumen.  Bitumen emulsion is processed bitumen, but the

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process  has  not  changed  its  composition,  commercial

identity  or  its  use.   Bitumen  emulsion  is  regarded  and

performs  the  same  function  as  bitumen.   As  a  result  of

processing,  neither  the  primary  character  nor  the

composition is lost.  Emulsification only eases and provides

proficiency to the use of application of bitumen.  Hence, in

popular  and  commercial  sense,  bitumen  emulsion  is

nothing but bitumen, which is in liquid form and is user

friendly.

21. It is perceivable that the legislature has used the word

“bitumen” and treated it as a separate entity.  As we notice,

it has not indicated that this was done with the intention

and purpose to exclude some type or variety of bitumen.  All

bitumen  products,  which  share  and  have  common

composition and commercial entity, and meet the popular

parlance test, is, therefore, meant to be covered by the said

Entry. In the instant case, even the end use test is satisfied.

There is nothing in the Entry to suggest and show that the

Entry  is  required  to  be  given  a  restrictive  and  a  narrow

meaning.

22. In this regard, another aspect needs to be noted.  The

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Revenue  does  not  rely  upon  another  Entry  under  which

bitumen emulsion can be taxed.  The Revenue relies upon

the residuary Entry which would only include goods, which

cannot be covered under any other Entry in the schedule on

application  of  the  three-fold  criteria.   In  the  State  of

Maharashtra v. Bradma of India Limited7, the Court had

observed  that  the  general  principle  is  that  specific  Entry

would override a general Entry. Referring to the decisions in

the case of Collector of Central Excise, Shillong v. Wood

Craft Products Ltd.8, it has been ruled that resort can be

made  to  a  residuary  heading  only  when  by  liberal

construction the specific Entry cannot cover the goods in

question.  Referring to Entry No. 90 in the said case, which

covered  tabulating,  calculating,  cash  registering,  indexing

and data processing, etc, other than computer machines, it

was held that the words did not contain words of limitation

and would cover every species of cash registering machines,

irrespective of their mode of operation.  In the absence of

any  limitation  or  qualification  as  to  the  different  kind  of

cash registering  machines,  there was no reason for  such

7 (2005) 2 SCC 669 8 (1995) 3 SCC 454

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qualification and limit the Entry to a particular kind of cash

registering  machine.  However,  computers  had  been

specifically excluded and were separately dealt with in Entry

97(a). The assessee, who was manufacturing electronic cash

registers would, therefore, be covered by Entry 90 and not

by the Entry relating to computers.  A similar opinion has

been  expressed  in  Hindustan  Poles  Corpn.  v.

Commissioner of Central Excise, Calcutta9 stating that

residuary  Entry  is  made  to  cover  only  those  category  of

goods which clearly fall outside the ambit of the main Entry.

The  opinion  proceeds  further  to  state  that  unless  the

Revenue can establish that the goods in question can by no

conceivable process of reasoning be brought under any of

the  tariff  items,  resort  cannot  be  made  to  the  residuary

Entry.   

23.  In  this  context,  reference  to  the  authority  in

Commercial Taxes Officer v. Jalani Enterprises10 would

be  profitable.  While  dealing  with  the  question  of  sales

tax/VAT under  the  Rajasthan Sales  Tax Act,  it  was held

that if from records it was established that the product in

9 (2006) 4 SCC 85 10 (2011) 4 SCC 386

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question  could  be  brought  under  a  specific  Entry,  then

there was no reason to take resort to the residuary Entry.

Revenue  cannot  be  permitted  to  travel  to  the  residuary

Entry  when  a  product  can  be  covered  under  a  specific

Entry.  

24. In the present context, when the word “bitumen” has

been used as a generic expression, it would be erroneous

not to cover a product that is only a type or form of bitumen

and retains all its essential characteristics, and treat it as

covered by the residuary Entry by some kind of ingenuous

reasoning.  Taking  it  outside  the  purview  of  the  specific

Entry is incorrect.   

25. At  this  juncture,  we  may  refer  to  certain

pronouncements commended to us by the learned counsel

for the appellant. In  Collector of Customs and others v.

Kumudam Publications (P)  Limited and others11,  while

adverting to the issue of classification it has been held that

it would not be correct to say that in no case can the end

use or function of the goods be relevant in the question of

classification, as was held in  Indian Tool Manufacturers

11 (1998) 9 SCC 339

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v. Asstt. Collector of Central Excise, Nasik and others12.

The decision in Commissioner of Central Excise, Cochin

v.  Mannampalakkal  Rubber  Latex Works13 emphasizes

and holds that in the matters of classification, “composition

test” is important test and the “end user test” would only

apply if the Entry says so.  We have referred to the aforesaid

authorities for sake of completeness only because we have

applied the “composition test” as well as the “commercial or

common parlance” test in addition to the “end use test”.

26. Reliance placed by the Revenue on the decision in the

case of Hindustan Aluminium Corporation Ltd. v. State

of Uttar Pradesh and another14, is of no assistance, for in

the  context  of  the  particular  notification it  was held that

aluminium ingots, billet, roll products, extrusion, etc. would

not be covered by the exemption, which was granted to all

kinds of  minerals,  ore,  metals  or  alloys,  including sheets

and  circles  used  in  the  manufacture  of  brasswares  and

scraps.  In this context, referring to Section 3A of the U.P.

Sales Tax Act and the notification as applicable, it was held

that the earlier notifications issued from time to time would 12 (1994) Supp (3) SCC 632 13 (2007) 217 ELT 161 (SC) 14 (1981) 3 SCC 578

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show that the expression “metal” had been employed with

reference to metal in its primary sense.  The principle laid

down in the said authority is in the context in issue and is

based  upon  the  schematic  arrangement  indicated  and

specified  in  the  notification  under  consideration  therein.

That apart, the said decision also emphasizes that a word

describing  a  commodity  in  a  sales  tax  statute  should  be

interpreted  according  to  its  popular  sense  and  words  of

everyday use must be construed not in their  scientific  or

technical sense, but as understood in common parlance.  

27. We have also been commended to a judgment of the

Customs,  Excise  and  Service  Tax  Appellate  Tribunal  in

Allied  Bitumen  Complex  (India)  Private  Limited  v.

Collector of Central Excise, Calcutta – 115, which holds

that conversion of bitumen into bitumen aqueous emulsion

amounts  to  manufacture.   Per  contra,  the

respondent-assessee  has  relied  on  judgment  of  the

Karnataka  High  Court  in  SR  Projects  Limited  v.

Commissioner of Commercial Taxes16.  However, it is not

necessary  to  dilate  on  the  said  aspect  for  there  is  a

15 (1997) 90 ELT 374 (Tribunal) 16 (2013) 63 VST 49 (Kar)

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distinction between what can be regarded as manufacture

under  the Excise Act  and what is  the sale  or  transfer  of

property in goods under the Sales Tax Act and the Value

Added Tax Act.  In  M.P. Agencies v. State of Kerala17, it

has been held that the decisions under the Excise Act may

have  some  play  and  relevance,  but  the  question  of

manufacture by itself would not be  per se relevant under

the  Sales  Tax  or  Value  Added Tax  Act.  Thus,  there  is  a

distinction between what is exigible to tax under the excise

law and the incidence of tax when the legislation relates to

sales  or  value  added  tax.   What  is  relevant  is  the

classification.   In  this  context,  the  verdict  in  Osnar

Chemical Private Limited (supra) is significant.  The said

authority refers to two other variants of bitumen, namely,

polymer  modified  bitumen and crumbled rubber  modified

bitumen  which  are  created  by  the  process  of  mixing  of

polymer and additive to bitumen.  It has been held that the

aforesaid processes result in improvement of the quality of

bitumen and there is  no change in the characteristics or

identity of bitumen so as to transform bitumen into a new

17 (2015) 7 SCC 102

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product having an identity, characteristic and use.  It has

been ruled therein that there is a fallacy in the argument

raised  by  the  Revenue  that  bitumen  per  se would  only

include its solid hard form which melts at high temperature

and not  bitumen emulsion.   The two varieties  and types

carry the same composition, do not differ in character and

have the same commercial identity i.e. bitumen.  That apart,

the use or end use test is also satisfied.   

28. In  view  of  the  aforesaid  analysis,  we  find  the  view

expressed by the High Court to be absolutely flawless and,

accordingly,  we concur with it.  Our concurrence with the

view of the High Court entails dismissal of the appeal and,

accordingly, it is so directed. There shall be no order as to

costs.

.............................J. [Dipak Misra]

............................J. [Prafulla C. Pant]

New Delhi September 6, 2016