K.N. Shukla, J.
1. This is a reference by the Board of Revenue, Madhya Pradesh under Section 44(1) of the Madhya Pradesh General Sales Tax Act, 1958, stating the case and seeking our opinion on the following question :
Whether, under the facts and circumstances of the case, cement pipes are taxable under entry 56 of Part II of Schedule II appended to the M.P General Sales Tax Act, 1958
2. The assessee is a manufacturer of cement pipes and poles. For the financial year 1972-73 sales of cement pipes were assessed to tax at 11 per cent by the Sales Tax Officer, Dhar. The assessee filed an appeal before the Appellate Assistant Commissioner of Sales Tax claiming that sales of cement pipes were liable to be taxed at the rate of 7 per cent and not 11 per cent. This contention was rejected by the Appellate Assistant Commissioner. The matter was then taken before the Tribunal (Board of Revenue) in second appeal. The Tribunal held that pipes and pipe fittings mentioned in entry 56 related to opening words of the entry 'Sanitary goods and sanitary fittings'. Further observing that all cement pipes are not necessarily sanitary fittings, the Tribunal remanded the case to the assessing authority for further enquiry on the question about the use of the pipes and for giving a finding in that behalf. At the instance of the Commissioner of Sales Tax the Tribunal has referred the aforesaid question for our opinion.
3. This Court in Commissioner of Sales Tax, M. P. v. Truel Tubes  46 STC 473 and Commissioner of Sales Tax v. Iisco Stanton Pipe and Foundry Co. Ltd., Ujjain (M.C.C. No. 94 of 1980 decided on 3rd July, 1981)  50 STC 207 has held that pipes which are not used for sanitary fittings would not be taxable under entry 56, Part II of Schedule II appended to the M. P. General Sales Tax Act, 1958. In the instant case the Tribunal had already remanded the case for proper enquiry about the use of the cement pipes sold by the assessee.
4. In the circumstances we answer the question in the negative and against the revenue and hold that under the facts and circumstances of the case cement pipes are not necessarily taxable under entry 56 of Part II of Schedule II appended to the Madhya Pradesh General Sales Tax Act, 1958 and the question will have to be decided on the facts of each case.
5. There will be no order as to costs of this reference.