R.N. Misra, J.
1. This is a reference under Section 24(1) of the Orissa Sales Tax Act made by the Member, Additional Sales Tax Tribunal of Orissa, at the instance of the State referring the following question for opinion of the court:
Whether, on the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, is justified in directing levy of tax on the turnover of silver ornaments at the rate of 5 per cent as per the provisions of Section 5(1) of the Act instead of 7 per cent as per the provisions of entry in serial No. 27 of the Schedule of taxable goods ?
2. The assessment is for the year 1971-72. The assessee deals in stainless steel silver ornaments, stone-studded ornaments, etc. The assessing officer rejected the assessee's contention that silver ornaments were unclassified goods and, therefore, liable to be taxed at the rate of five per cent and took the view that silver ornaments came within the purview of entry in serial No. 27 of the rate schedule and, accordingly he, assessed the same at seven per cent.
The Appellate Assistant Commissioner confirmed the assessment. In second appeal, the Tribunal accepted the assessee's contention and held that silver ornaments did not come within the purview of entry in serial No. 27 and as such would be liable to the general rate of five per cent.
3. The same problem arose in the case of Bavchand & Co. v. State of Orissa  38 S.T.C. 42 and after considering all the aspects it has been held that silver ornaments came within the entry in serial No. 27 of the list of taxable goods and with effect from 15th May, 1970, the enhanced rate of seven per cent became applicable. Thus, in the assessment year 1971-72, which is the relevant period in this case, the assessee's liability had to be computed at seven per cent in respect of silver ornaments. Adopting the reasons given in the reported decision, we answer the question referred to the court holding :
On the facts and in the circumstances of the case, the Member, Additional Sales Tax Tribunal, was not justified in directing levy of tax on the turnover of silver ornaments at the rate of five per cent. On the other hand, seven per cent is the rate applicable to the said turnover.
We make no order for costs.
N.K. Das, J.
4. I agree.