TMI Blog1978 (7) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta-26. Since March, 1957, the petitioner has been carrying on the business of purchase and sale of optical frames and glasses and items incidental thereto. The petitioner claims that he is not a manufacturer or importer of goods sold by him, and the petitioner maintains primary books of account of his business. The petitioner states that in the course of his business, a customer comes to him with a prescription from a doctor, selects a particular frame, settles the price thereof and the frame is then appropriated to the contract of sale within the meaning of explanation 2(a) to section 2(g) of the Bengal Finance (Sales Tax) Act, 1941. The petitioner then fixes the glasses, according to prescription, to the frame which has already bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was only one contract for sale of manufactured spectacles as has been held by the learned Commercial Tax Officer and estimated that the petitioner's turnover really exceeded the taxable turnover of ₹ 10,000 on 30th April, 1965, with liability to pay tax commencing from 30th June, 1965. The petitioner moved the Commissioner of Commercial Taxes, West Bengal, against the said order passed by the Assistant Commissioner. The learned Additional Commissioner of Commercial Taxes by his order dated 31st July, 1972, modified the order of the learned Assistant Commissioner but maintained the order of the Commercial Tax Officer. The Additional Commissioner rejected the contention of the petitioner that he is not a manufacturer of spectac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to get himself registered or to obtain a special certificate, as the case may be, the Commissioner shall proceed in such manner as may be prescribed to assess to the best of his judgment, the amount of tax due from the dealer in respect of such period and all subsequent periods and in making such assessment shall give the dealer a reasonable opportunity of being heard. Therefore, such a decision of the Commercial Tax Officer determining the liability of a dealer is incidental and ancillary to the exercise of his power under section 11(2). Exercise of such power under section 11(2) necessarily involves determination of the period of liability. Liability to pay for a certain period or from certain date under section 4(2) of the said Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use. As for instance, when oil is produced out of oil-seeds, the process certainly transforms the raw material into a different article for use and as such it is manufacture. Following that decision and applying the same test to the facts of the present case, it cannot, by any stretch of imagination, be held that the petitioner is a manufacturer of spectacles by assembling of frames of the spectacles and thereafter upon prescriptions fitting glasses to individual frames and then selling them to the customers. Assembly of parts of the frames does not create something new and hence it cannot be termed to be a manufacture to come within the meaning of section 4(5) of the said Act. I accordingly hold that the petitioner is not a manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X
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