R. M. Sahai, J. - The following question has been referred for the opinion of this Court :-
'Whether in view of the above facts and circumstance of the case the turnover of stove and its part would be taxable @ 2% as an unclassified item, or as an articles covered under Notification No. 2104/X-902(16)-52 dated May 21, 1963 taxable @ 3%?.'
2. The short facts giving rise to this reference, are that the assessee carried on business of manufacturing and selling stove parts. The turnover for the year had been disclosed as Rs. 9,503/-. The account books of the assessee were rejected by the Sales Tax Officer, who made the assessment to the best of his judgment and determined taxable turnover at Rs. 25,000/-. The assessee filed an appeal which was dismissed, against which he filed a revision in which the determination of the turnover at Rs. 25,000/- was maintained but it was held that stove art were unclassified goods taxable at the rate of 2%. Feeling aggrieved by the order of the Additional Revising Authority Sales Tax, the commissioner filed an application under S.11 (3) which was allowed and the above mentioned question has been referred.
3. We have heard learned counsel for the parties.
The Notification with which we are concerned is quoted below :-
Noti. No. S.T. 2104/X-902(16)-52, dated May 21, 1963. (Published in the U.P. Gazette, Part I-A, dated June 1, 1963)
'In exercise of the powers conferred by second proviso to sub-S. (1) of S. 3 of the Uttar Pradesh Sales Tax Act,1948 (U.P. Act No. XV of 1948), the Government of Uttar Pradesh is pleased to enhance, with effect from the date of publication of this notification in the gazette, the rate of sales tax in respect of the turnover of wares made of any metal or alloy, other than brass or aluminium, from two paise per rupee to three paise per rupee at all points of sales.'
This Notification applies to the turnover of wares made of any metal or alloy, other than brass or aluminium. Before the Judge (Revision) it appears, that it was urged on behalf of the Department that stove parts are brass wares taxable at 3%. The contention was rejected and it was held that stove parts were not brass wares. This finding of the Judge (Revision) has been challenged. On the basis of the Notification quoted above, that commodity is sought to be taxed at the rate of 3% on the ground that it is a ware made of metal or alloy. But, as we have pointed out above, this Notification expressly excluded wares of brass or aluminium. In the circumstances, stove parts cannot be held to be liable at the rate of 3% under Notification No. S.T. 2104/X-902(16)-52.
4. In view of what we have stated above, our answer to the question referred is against the Commissioner and in favour of the assessee. The answer is as follows :-
'In the facts and circumstances of the case the turnover of stove and its part would not be covered under Notification No. S.T. 2104/X-902(16)-52, dated May 21, 1963.'
In the circumstances of the case we do not make any order as to costs.