R.L. Gulati, J.
1. These are references under Section 11(3) of the U.P. Sales Tax Act at the instance of the Commissioner of Sales Tax, U.P., Lucknow. The assessment year involved is 1963-64. The connected Reference No. 690 of 1970 relates to the assessment year 1962-63. A common question of law arising out, of these cases has been referred for the opinion of this court. The question is:
Whether on the facts and circumstances of this case, batasha is taxable as an unclassified item.
2. Before the assessing authority, the assessee contended that it prepares batashas out of khandsari sugar which it purchases locally. Khandsari sugar is refined and batashas are prepared by a mechanical process. No other ingredient is added, nor is any manufacturing process involved, so that batashas and khandsari sugar are one and the same commodities. The sale of khandsari sugar is taxable at a single point at the point of sale by the manufacturer or the importer and as the assessee is neither a manufacturer nor an importer of khandsari sugar, it. is not liable to tax on the turnover of batashas, which is nothing but another form of khandsari sugar. This contention of the assessee was not accepted by the Sales Tax Officer, who treated batashas as unclassified goods and levied tax on the turnover of batashas at the rate of 2 per cent, as provided in Section 3 of the Act. The assessee's appeal was dismissed. The assessee then went up in revision and the revising authority accepted the assessee's contention and held that batashas were only a different form of khandsari sugar and not a different commodity, so that the batashas could not be taxed as unclassified item. The Commissioner is aggrieved, and has brought this reference before us.
3. Admittedly as from 1st April, 1960, the turnover of khandsari sugar is taxable under Notification No. S.T. 1365/X-990-1956, dated 1st April, 1960. This is a notification under Section 3-A of the Act and declares that the turnover of khandsari sugar will be taxable at the rate of 2 paise per rupee at the point of sale by the importer or by the manufacturer. The assessee admittedly is neither an importer nor a manufacturer of khandsari sugar. He prepares batashas from locally purchased khandsari sugar. Khandsari sugar is refined and batashas are prepared therefrom by a mechanical process. No other ingredient is mixed in the khandsari sugar. Batashas are therefore nothing else but khandsari sugar in a different form.
4. In State of Gujarat v. Sakarwala Brothers  19 S.T.C. 24 (S.C.), the Supreme Court has held' that batashas are only a different form of sugar and not a different commodity. That being the position, batashas cannot be said to be unclassified goods and their turnover cannot be taxed separately.
5. The learned standing counsel contends that batashas and khandsari sugar should be treated as two different commodities and relies on Notification No. ST 4064/X-960(4) 58, dated 25th November, 1958. That is a notification issued under Section 4(1)(a) of the Act and grants unconditional exemption from tax to certain commodities. Item No. 1 of the list attached to that notification is 'sugar containing more than ninety per cent, of sucrose, but: excluding khandsari sugar, sugar' candy, batasha, cooked food, confectionary and sweetmeats'. It is true that under the aforesaid notification khandsari sugar and batashas have been excluded from the exemption, but that by itself does not mean that khandsari sugar and batashas are two, different, commodities. 'The intention behind that notification was to exempt sugar containing more than ninety per cent, of sucrose, but not to extend the exemption to khandsari sugar which is a different variety of sugar and certain sugar preparations. In the notification of 1st April, 1960, the turnover of khandsari sugar has been made taxable at a single point. The term 'khandsari sugar' would include all forms of that variety of sugar unless any form is specifically excluded. Under an earlier Notification of 14th December, 1957, (No. Sf 4485/X issued under Section 4(1)(b) of the Act), sugar and khandsari sugar both were allowed conditional exemption-the condition being that the additional Central excise duty leviable thereon had been paid. Under the notification of 25th November, 1958, sugar was granted unconditional exemption, but khandsari sugar continued to be governed by the notification of 14th December, 1957. Under the notification of 1st April, I960, such khandsari sugar upon which additional excise duty was not. leviable or which had been exempted from such levy was placed under Section 3-A and its turnover was made taxable in the hands of the importer or the manufacturer.
6. Once khandsari sugar is taxed under Section 3-A, the different forms of khandsari sugar cannot be taxed over again. Such a course would be opposed, to the very scheme of Section 3-A. We, therefore, answer the question in the negative in favour of the assessee and against the department. As no one has appeared on behalf of the assessee, there would be no order as to costs.