1. This is a reference under section 61(1) of the Bombay Sales Tax Act, 1959, in which at the instance of the Commissioner of Sales Tax the following question has been referred to us for our determination :
'Whether, having regard to the facts and circumstances of the present case, the Tribunal is justified in law in coming to the conclusion that the oil-tank sold by the respondent did not fall within entry No. 58 of Schedule C to the Bombay Sales Tax Act, 1959 ?'
2. The respondents entered into a contract with one Shah and Patel Company of Surat for the following three items :
(1) For manufacture and supply of driver's cabin of steel construction and panelling of 18G aluminium alloy in the exterior and 20G in the interior at the rate of Rs. 2,350 each.
(2) For manufacture and supply of one tank of 12,000 litres capacity, fitted with 4 compartments of 3,000 litres each, with manhole fittings, discharge valves, the tank to be rigidly and properly mounted on the customer's chassis, including painting, at the rate of Rs. 6,750 each.
(3) To provide one extra seat for the driver for sleeping accommodation at the rate of Rs. 250 each.
3. After the work was completed, the respondents submitted two separate invoices bearing Nos. 649 and 650 respectively, both date 5th October, 1965, to their customer. The first invoice was for the manufacture and supply of the said oil-tank and the second was for the manufacture and supply of driver's cabin and the extra seat. In the first invoice the respondents billed their customer in respect of sales tax at the rate of 5 per cent. and in the second invoice at the rate of 10 per cent., as according to the respondents, the first invoice, namely, invoice No. 645, related to supply of goods in respect of the sale of which tax was payable under entry No. 22 in Schedule E to the Bombay Sales Tax Act, 1959, and in respect of the supply of goods mentioned in the said second invoice the tax was payable at the rate mentioned in entry No. 58(2) of Schedule C to the said Act.
4. Thereafter on 7th October, 1965, the respondents applied to the Commissioner of Sales Tax under section 52(1) of the said Act to determine the question whether the oil-tank sold by them fell under the said entry No. 22 of Schedule E. In the said application they pointed out that the manufacture and supply of driver's cabin and the extra seat for driver's sleeping accommodation were contracts which related to the body of the motor vehicle as the work was carried out and completed right from its initial stages on the chassis itself and the structure mounted on the chassis was permanently fixed thereto so that it could not be taken out within destroying its utility, and it, therefore, became a part and parcel thereof. While the work of manufacture of the oil-tank was carried on outside the chassis, and only when the tank was completely manufactured it was mounted on the chassis and tightly secured to the chassis by means of nuts and bolts, the tank retaining its individuality, it being easily detachable.
5. By their letter dated 11th December, 1965, addressed to the Commissioner of Sales Tax, the respondents further pointed out that oil tanks were capable of being adapted for different purposes, that they were mounted on railway wagons for carriage of petrol, kerosene and other liquid substances, that they were also capable of being used on house tops or elsewhere for storage of water, and that looking to these variety of uses to which the tanks were put they could not be considered as motor body or a part of a motor vehicle.
6. By his order dated 23rd December, 1965, the Commissioner of Sales Tax rejected the contentions of the respondents and held that the oil-tank sold by the respondents was a component part of the motor vehicle or an article adapted for use as a part or accessory of such vehicle and, therefore, the rate at which it attracted tax was under entry No. 58(2) of Schedule C to the said Act, namely, at the rate of ten paise in the rupee. Against the judgment of the Commissioner of Sales Tax the respondents filed an appeal to the Tribunal. There was a similar appeal before the Tribunal filed by one Trinity Engineering Company. In that appeal, namely, First Appeal No. 12 of 1966, the Tribunal held that the oil-tank was not a component part of a motor vehicle and that it had an independent existence and could ordinarily be used otherwise than being mounted on the chassis of a motor vehicle and that, therefore, the rate at which the tax was attracted was the one provided in entry No. 22 of Schedule E to the said Act, namely, the rate of five paise in the rupee. Following the said judgment the Tribunal allowed the appeal filed by the respondents.
7. Entry No. 58 of Schedule C to the Bombay Sales Tax Act, 1959, as it stood at the relevant time, provided as follows :
'58. (1) Motor vehicles, including motor cars, motor taxi-cabs, motor cycles, motor cycle combinations, motor scooters, motorettes, motor omnibuses, motor vans and motor lorries and chassis of motor vehicles, but excluding tractors, whether on wheels or tracts.
(2) Component and spare parts of motor vehicles specified in sub-entry (1) of this entry and other articles (including rubber and other tyres and tubes and batteries) adapted for use as parts and accessories of such vehicles, not being such articles as are ordinarily also used otherwise than as such parts and accessories.'
8. Entry No. 22 in Schedule E to the said Act is the residuary entry and at the relevant time provided as follows :
'All goods other than those specified from time to time in Schedule A, B, C and D and in the preceding entries.'
9. Before us Mr. Shah, the learned counsel for the applicant, has submitted that without the fitting of the oil-tank on the chassis, the chassis could not be described as a motor vehicle and that it was only when the oil-tank was fitted on to it that the chassis of the respondents' customer became a motor vehicle. Mr. Shah has further submitted that a motor vehicle is a carriage propelled by a motor which is intended for conveying passengers or goods and that goods which could be carried in a motor vehicle would either be solid or liquid and, if it was liquid, the only way in which the goods could be carried was by an oil-tank. In Mr. Shah's submission, unless a chassis was fitted with a body either for carrying passengers, where the intention was to use the motor vehicle as a carrier of passengers, or with a body designed either for carrying goods, which may be solid or liquid, if the intention was to use it as a carrier of goods, it was incapable of discharging the purpose for which a motor vehicle is intended. In support of his submission, Mr. Shah has relied upon the decision of a Division Bench of the Allahabad High Court in Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Pritam Singh  22 S.T.C. 414.. In that case the question was whether the body mounted on the chassis of a truck was a component part of a motor vehicle within the meaning of item No. 24 of Notification No. S.T. 905/X dated 31st March, 1956, issued under section 3-A of the U.P. Sales Tax Act, 1948. The said item No. 24 provided as follows :
'Motor vehicles, including motor cars, motor taxi-cabs, motor cycles and motor cycle combinations, motor scooters, motorettes, motor omnibuses, motor vans and motor lorries.
10. Chassis of motor lorries.
11. Component parts of motor vehicles. Articles (including batteries) adapted for use as parts and accessories of motor vehicles, not being such article as are ordinarily also used for other purposes than as parts or accessories of motor vehicles.'
12. The Allahabad High Court accepted on behalf of the revenue the same contentions as have been urged before us by Mr. Shah and held that in order to decide the question it was necessary to determine first what a motor vehicle is and it came to the conclusion that the body of a motor vehicle was an integral part necessary to the constitution of the whole article without which it would not be possible to conceive of the entire article as a whole and that unless there was a body, it was not possible to say that a motor vehicle as understood in the popular or commercial sense had come into being.
13. We find some difficulty in accepting the test laid down in that case. According to us, the correct test would be to look both at the article which is said to be the component part and the completed article and then come to the conclusion whether the first article is a component part of the whole or not. If one were to look at a complete and finished product, one might find so many parts which, by being fixed or otherwise made part of the said product, would lead one into a fallacious impression that they are component parts. What the court is here concerned with is to ascertain whether the sale of a particular article is exigible to tax and, if so, at what rate. Therefore, in order to determine whether a particular article is a component part of another article, one must first look at that article itself and consider what its uses are and whether its only use or its primary or ordinary use is as the component part of another article. In this connection, we may also point out that the entry which the Allahabad High Court had to consider was in some respects materially different from the entry before us. The entry before the Allahabad High Court contained four different items, namely, (1) motor vehicles, including motor cars, motor taxi-cabs, etc., specified in the first paragraph of the said item, (2) chassis of motor vehicles, (3) component parts of motor vehicles, and (4) articles (including batteries) adapted for use as parts and accessories of motor vehicles, not being such articles as are ordinarily also used for other purposes than as parts or accessories of motor vehicles. What, therefore, the Allahabad High Court had to decide was whether a body mounted on the chassis of a truck was a component part of a motor vehicle. In sub-entry (1) of entry No. 58 in Schedule C to our Act chassis of motor vehicles is, however, expressly included in motor vehicles and is, therefore, a motor vehicle. Mr. Shah has sought to get over this position by submitting that the words which precede the phrase 'and chassis of motor vehicles' in the said sub-entry are 'motor vans and motor lorries' and, therefore, when the said sub-entry states 'including motor cars ......... motor vans and motor lorries', this inclusive portion stops at the words 'motor lorries' and the phrase 'and chassis of motor vehicles' forms a separate item by itself. Mr. Shah further submitted that had this not been the intention of the legislature, the conjunction 'and' would not have been used twice in the said sub-entry, once before the words 'motor lorries' and the other time before the words 'chassis of motor vehicles'. We are unable to accept this submission of Mr. Shah. Had the intention of the legislature been such as is canvassed before us by Mr. Shah, we would have expected to find a comma after the word 'lorries'. There is, however, no punctuation mark after the word 'lorries', though in the earlier items specified in the inclusive clause we do find this particular punctuation mark. The so-called ambiguity which might, however, arise is completely dispelled when we look to the legislative history of the said entry No. 58. Entry No. 58, as originally enacted, provided as follows :
'Motor vehicles, including motor cars, motor taxi-cabs, motor cycles, motor cycle combinations, motor scooters, motorettes, motor omnibuses, motor vans and motor lorries and chassis of motor vehicles.'
14. On 1st April, 1963, the original entry was substituted by an entry, which was the same as the one with which we are concerned, with the exclusion of the words 'but excluding tractors, whether on wheels or tracts', which words were inserted with effect from 18th June, 1963. The result was that with effect from 1st April, 1963, the original entry No. 58 was renumbered as sub-entry (1) an another sub-entry, namely, sub-entry (2), which dealt with components and spare parts of vehicles, etc., was inserted. If the intention of the legislature had been to treat the chassis of a motor vehicle also as a separate item, then we would have expected this article to have formed the subject-matter of a separate sub-entry, as it does in the entry with which the Allahabad High Court was concerned in the case relied upon by Mr. Shah. Any lingering doubt which might even thereafter remain is, however, completely dispelled as we find that when the legislature wanted to exclude tractors from being classified as 'motor vehicles', the words 'but excluding tractors, whether on wheels or tracts' were added on 18th June, 1963, in entry No. 58(1) not after the words 'motor lorries', which would have been the case had Mr. Shah's contention been correct, but after the words 'and chassis of motor vehicles'. In the present case, we are not concerned with a motor body mounted on the chassis of a motor truck. We are here concerned with an article, which from the various uses to which it is ordinarily put and is capable of being put as found by the Tribunal, has both an independent existence and an independent use, apart from being a part of a complete motor oil-tanker. It is, therefore, not possible to hold on the facts as found by the Tribunal that the oil-tank sold by the respondents was a component part of a motor vehicles. In this connection, we may also point out that in Simpson & Co. Limited v. State of Madras ( 23 S.T.C. 374.), a Division Bench of the Madras High Court, which has to deal with an entry in terms similar to the entry before the Allahabad High Court, held that bus bodies were not covered by the said entry and could not be regarded as component parts of motor vehicles or even as accessories thereto.
15. In the alternative, Mr. Shah submitted that assuming that the oil-tank sold by the respondent was not a component part of a motor vehicles, it fell under the second part of sub-entry (2) of the said entry No. 58, namely, 'other articles (including rubber and other tyres and tubes and batteries) adapted for use as parts and accessories of such vehicles, not being such articles as are ordinarily also used otherwise than as such parts and accessories'. For this part of sub-entry (2) to apply the condition which is required to be fulfilled is that the particular article must not be capable of being ordinarily used otherwise than as component and spare parts and accessories. The Tribunal has found on the facts that the oil-tank sold by the respondents was an article ordinarily used otherwise than for being mounted and fitted on the chassis of a motor vehicles. On this finding the second part of sub-entry (2) of entry No. 58 also cannot be attracted and tax mentioned at the rate specified in the said entry cannot become applicable to the sale made by the respondents.
16. Mr. Donde on behalf of the respondents submitted before us that in order to determine whether the goods sold fell under one entry or the other would depend upon what the terms of the contract between the parties were, and if the intention of the parties was to sell an article as such and it was not specified in the contract that it was being sold as a component part or an accessory of a motor vehicle, it could not be taxed under entry No. 58(2). We are unable to accept this submission. It is the nature, character and description of the goods in question and the use to which it is ordinarily put which determine under which entry in the schedule to the said Act it will fall and not what the parties choose to describe it as. According to us, therefore, the terms of the contract between the parties, though it may in some cases be relevant, are not determinative of the question.
17. In the result, we answer the question submitted to us in the affirmative.
18. The applicant will pay to the respondents the costs of this reference.
19. Reference answered in the affirmative.