R.L. Gulati, J.
1. At the instance of the Commissioner of Sales Tax, U.P., Lucknow, the Additional Judge (Revisions) Sales Tax, Agra, has submitted this reference under Section 11(3) of the U.P. Sales Tax Act for the opinion of this court on the following two questions:
(1) Whether under the circumstances of the case the steel trays are hardware taxable at 3 per cent. as per Notification No. S.T. 1367/X-1045 (19)-1960 dated 5th April, 1961, or are unclassified items taxable at the general rate of 2 per cent. during the years 1963-64 and 1964-65?
(2) Whether under the circumstances of the case the steel calendars are hardware taxable at 3 per cent. as per Notification No. S.T. 1367/X-1045 (19)-1960 dated 5th April, 1961, or are unclassified items taxable at the general rate of 2 per cent. during the years 1963-64 and 1964-65 ?
2. The assessee is a manufacturer of and dealer in tin trays and tin calendars. The two assessment years involved in these references are 1963-64 and 1964-65. There is no dispute about the turnover. The dispute only relates to the rate of tax upon the turnover of tin trays and tin calendars. According to the sales tax authorities, these two items would be governed by Notification No. S.T. 1367/X-1045(19)-1960 dated 5th April, 1961, and as such should be taxable at the rate of 3 paise per rupee, whereas according to the assessee, the two items do not fall within that notification, but are unclassified items assessable at the rate of 2 paise per rupee as provided in Section 3 of the Act. The Judge (Revisions) has finally held that the tin trays and tin calendars manufactured and sold by the assessee do not fall within the notification of 5th April, 1961, but they are unclassified items taxable under Section 3. The Commissioner of Sales Tax is not satisfied and has caused this reference to be made to this court.
3. Item No. 7 of notification of 5th April, 1961, under which the department seeks to bring these two articles, reads, 'mill-stores and hardware.' This court had the occasion to interpret this notification in Commissioner of Sales Tax, U.P. v. Aftab 'Husain Imdad Husain  25 S.T.C. 471, where the question was whether steel trunks could be held to be items of hardware within the meaning of item No. 7 of the notification in question. It was contended on behalf of the department in that case that according to the dictionary meaning of 'hardware' all items made of iron and other base metals would be hardware. This court after examining the question in detail held that it is not the dictionary meaning that has to be given to an entry in a notification under the U.P. Sales Tax Act. Where no definition is given in the Act itself, a particular entry has to be understood in the commercial sense. It was held by the Bench in that case that hardware and mill-stores are allied trades and that mill-stores comprise of items like small tools and spare parts of machinery and hardware refers ordinarily to small items of base metals particularly building materials like nuts, bolts, hinges, rivets, laches, curtain railings, window grills, etc. The argument of the department that everything that is made of iron or other base metals should be regarded as items of hardware was rejected. In fact item No. 8 in the notification in question does militate against that argument because that item enumerates machinery and spare parts of machinery. Obviously machinery and spare parts of machinery would be made of iron and other base metals and since there is a separate entry made in respect of machinery and hardware, it suggests very clearly that they were not considered to be governed by entry No. 7.
4. We are, therefore, clearly of opinion that tin trays and tin calendars in question cannot be considered to be items of hardware and as such are not taxable under the notification of 5th April, 1961, but would be taxable as unclassified items at the rate of 2 per cent. under Section 3 of the Act.
5. We answer the two questions accordingly. The assessee is entitled to its costs which we assess at Rs. 100, one set only.