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Commissioner of Sales Tax Vs. Pioneer Leather Works - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number Sales Tax Revision Nos. 676 and 677 of 1978
Judge
Reported in[1980]46STC224(All)
AppellantCommissioner of Sales Tax
RespondentPioneer Leather Works
Appellant Advocate The Standing Counsel
Respondent Advocate None
DispositionPetition dismissed
Excerpt:
- - in the popular sense, that expression would comprise small items made of base metals such as iron, copper, lead and other alloys like brass, etc. it was also held that hardware and mill stores were allied trades and mill stores consisted of items like small tools and spare parts of machinery and that the hardware trade by itself ordinarily referred to small items made of base metals, particularly building materials, like nuts, bolts, hinges, rivets, curtain railings, window grills, etc. thus, as seen above, mill stores comprise of items like small tools and spare parts of machinery and hardware refer to small items made of base metals, particularly building materials......affirmative, then whether the additional revising authority was legally justified to treat them as leather goods and thus taxable at a lower rate of tax ?2. in view of the amendment made in section 11 of the act, these applications were transmitted to this court and are to be treated as revisions under section 11(1) of the act.3. the assessee is a dealer in leather goods and washers. the assessment year is 1969-70 and the dispute is as to whether leather beltings and washers fall within the category of leather goods liable to be taxed at the rate of three per cent or they fall within the category of mill stores under notification no. st-747/x-950 (22)-67 dated 1st march, 1968, liable to tax at the rate of six per cent the assessing authority was of the opinion that these two items are.....
Judgment:

R.R. Rastogi, J.

1. The Commissioner of Sales Tax had made applications under Section 11(3) of the U. P. Sales Tax Act before the Additional Judge (Revisions), Sales Tax, Kanpur Range II, Kanpur, for reference of the following two questions to this Court for its opinion:

(1) Whether, under the facts and circumstances of the case, leather beltings and washers are taxable as mill stores under Notification No. ST-747/X-950 (22)-67 dated 1st March, 1968 ?

(2) If the answer to the above question is in the affirmative, then whether the additional revising authority was legally justified to treat them as leather goods and thus taxable at a lower rate of tax ?

2. In view of the amendment made in Section 11 of the Act, these applications were transmitted to this Court and are to be treated as revisions under Section 11(1) of the Act.

3. The assessee is a dealer in leather goods and washers. The assessment year is 1969-70 and the dispute is as to whether leather beltings and washers fall within the category of leather goods liable to be taxed at the rate of three per cent or they fall within the category of mill stores under Notification No. ST-747/X-950 (22)-67 dated 1st March, 1968, liable to tax at the rate of six per cent The assessing authority was of the opinion that these two items are mill stores, while the Assistant Commissioner (Judicial) and the revising authority treated them as falling in the category of leather goods.

4. So far as leather beltings are concerned, they come within the category of leather goods. In Commissioner of Sales Tax v. Subash Mill Stores, Gorakhpur 1978 U.P.T.C. 657, it was held that rubber beltings would not come within the category of mill stores, the reasons being that they are obviously not tools nor spare parts of machinery. They do not constitute a component part of the machines on which they are used. Similar view has been taken in Commissioner of Sales Tax v. Rana Rubber Industries Sales Tax Reference No. 695 of 1978 decided on 13th August, 1979 (Allahabad High Court); 1980 U.P.T.C. 676. Respectfully following these decisions, I hold that leather beltings manufactured by the assessee do not come within the category of mill stores but they fall in the category of leather goods.

5. Now, coming to the question of leather washers, the stand taken by the learned standing counsel was that they should be treated as falling within the category of mill stores because they constitute a component part of the machines in which they are used and in fact no machinery can function without a washer. I am not inclined to agree with the submission. Mill stores and hardware appear at serial No. 7 in Notification No. 1367/X-1045 (19)-1960 dated 5th April, 1961, and the scope of these two expressions came up for consideration before this Court in Commissioner of Sales Tax, U.P. v. Aftab Husain Imdad Husain [1970] 25 S.T.C. 471. The question referred to this Court for opinion in that case was whether steel trunks can be described as hardware within the meaning of the expression 'mill stores and hardware' mentioned as item No. 7 in the notification mentioned above. The view expressed by this Court was that they could not. In coming to this conclusion, the Court relied on the material indicating as to how the word 'hardware' was understood in the commercial world. It was observed that every article made of iron or of other base metals could not be regarded as an article of hardware. In the popular sense, that expression would comprise small items made of base metals such as iron, copper, lead and other alloys like brass, etc. It was also held that hardware and mill stores were allied trades and mill stores consisted of items like small tools and spare parts of machinery and that the hardware trade by itself ordinarily referred to small items made of base metals, particularly building materials, like nuts, bolts, hinges, rivets, curtain railings, window grills, etc.

6. In Fine Trading Corporation v. Commissioner of Sales Tax [1970] 25 S.T.C. 474, kitchen-knives and penknives were not treated as hardware.

7. Then a question relating to this notification came up for consideration before a Full Bench in the case of Commissioner of Sales Tax, U.P. v. Ram Niwas Puskar Dutt 1971 U.P.T.C. 413 (F.B.). The Bench referred to the aforesaid notification and observed that each entry contains a complete classification of goods and in that classification related items have been included, for example, cardboard and strawboard, ornaments made of gold or silver, machinery and spare parts of machinery and so on and hence the expression 'mill stores and hardware' comprehended all those articles which were described as mill stores or hardware having something common with each other. It was observed that the common factor and the limits within which its range is signified were indicated in the cases of Aftab Husain Imdad Husain [1970] 25 S.T.C. 471 and Fine Trading Corporation [1970] 25 S.T.C. 474 and Commissioner of Sales Tax v. Kanpur Udyog Bhandar [1970] 26 S.T.C. 431. In that view of the matter, weights and measures were held to have nothing in common with mill stores and therefore did not fall within the ambit of the expression 'mill stores' mentioned in the notification of 1961 mentioned above.

8. This decision has been followed in a number of cases decided subsequently. In the notification dated 1st March, 1968, in regard to the entry in item No. 7 of the notification of 5th April, 1961, referred to above, only slight amendment has been made, and it now reads 'mill stores and hardware excluding steel wires'. In other words, in the notification under consideration there is no difference made in regard to this item of mill stores and hardware. Thus, as seen above, mill stores comprise of items like small tools and spare parts of machinery and hardware refer to small items made of base metals, particularly building materials. Admittedly, leather washers are not covered by the expression 'hardware'. The question remains as to whether they can be treated as small tools or spare parts of machinery and thus as item falling under the head 'mill stores'. It has already been seen above that hardware and mill stores are related items and have something common with each other. Leather washers are certainly used in machinery but it would be difficult to treat them as a tool or a spare part of a machinery and, in my opinion, considering the question from all aspects leather washers do not fall in the category of mill stores.

9. In the result, the revisions are dismissed and the questions referred are answered by saying that leather beltings and leather washers are not taxable as mill stores under Notification No. ST-747/X-950 (22)-67 dated 1st March, 1968, and the revising authority was justified in treating them as leather goods liable to tax at the lower rate of tax. Since nobody has appeared for the respondent-assessee, there shall be no order as to costs.


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