Satish Chandra, J. - For the assessment year 1966-67 the petitioners turnover of glass-sheets was assessed at Rs. 6,01,778.57 it was brought to tax @ 10 per cent on the view that it was glassware and so was not taxable as an unclassified item. The appeal filed by the assessee was dismissed. So it was the fate of the revision. At the instance of the assessee the revising authority has referred the following two questions for our opinion :
'(1) Whether the findings of the Additional Revising Authority in Revision No. 1435/72 (of Varanasi) dated 1-1-1976 that glass-sheets sold by the assessee were glass-wares are not legally sustainable for want of discussion of the evidence on record If so, whether the Addl. Revising Authority should reopen the revision and decide it afresh ?
(2) Whether on the facts and circumstances of the case, glass-sheets sold by the assessee in 1966-67 were unclassified goods taxable @ 2% or were glass-ware within the meaning of Notification No. ST : 7094/X-1012-1965 dated 1-10-1965 taxable @ 10%.'
2. The petitioner had during the course of assessment proceedings filed a affidavit as well as written statement. He had furnished several other affidavits of local dealers at Varanasi as well as dealers of Bombay, in order to show that the glass-sheets in question were not finished products so as to tax in the capacity of glassware.
3. The revising authority did not discuss the evidence at all. He relied upon an earlier decision of the High Court reported in Tarkeshwar Nath Agarwal vs. Commissioner of Sales Tax. In that case Glass Sheets were held to be glassware.
4. The assessees case for the previous assessment years came up to this Court by way of reference and was decided by a Division Bench reported in Mohd. Ayub & Sons, Varanasi vs. Commissioner of Sales Tax. For these years the revising authority had given a finding that the glass-sheets sold by the assessee were finished goods and as such taxable as glassware. Since no specific question was referred to challenge that finding the Court did not go into the materials on record relevant to the question whether glass-sheets were finished products, but the Bench observed :
'Before leaving this point we would however like to stress that none of the authorities in this case have adverted to the evidence consisting of 11 affidavits filed on behalf of the assessee by the dealers of Bombay to establish that glass-sheets sold by the assessee was not glass-ware. The question whether a commodity is a raw material, semi finished product or finished product depends on the evidence and on the circumstances of each case ........... The assessee led evidence to establish that the glass sheet was not covered by the entry glassware. The authorities should have considered the evidence and recorded a finding after appreciating the same.'
They also observed that in taxation jurisdiction the principles of res-judicata do not apply. The Bench further observed :
'We have refrained from considering the validity of the finding recorded by the Additional Judge (Revision) in view of the fact that no question on this aspect has been referred to us, but this does not mean that the authorities are debarred from considering the evidence in subsequent years.'
Unfortunately in the subsequent year which is involved in the present reference the Judge Revision did not consider or appreciate the evidence led by the assessee on the question whether glass-sheets were finished products. Since this aspect is the subject matter of the first question we think it proper that the case should be reopened and the matter considered afresh.
5. We, therefore, answer the first question in the affirmative in favour of the assessee and against the department. In view of this answer we return question No. 2, unanswered. The assessee will be entitled to costs which we assessee at Rs. 200/-.