R.N. Misra, C.J.
1. The Member, Additional Sales Tax Tribunal, has stated this case and referred 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 correct in law to have taxed sewing thread at 2 per cent treating the same as cotton yarn ?
2. The assessee is a registered dealer. During the assessment year 1971-72, the Sales Tax Officer found that the assessee had sold sewing thread to the tune of Rs. 1,195.38. Treating sewing thread to be cotton yarn, the dealer had paid tax at the rate of 2 per cent. The assessing officer did not accept that sewing thread was not cotton yarn and therefore, raised the rate of tax from 2 per cent to 5 per cent and demanded the excess tax. The assessee's first appeal was allowed on the point and the rate of tax was reduced to 2 per cent. The assessee preferred a second appeal relating to other aspects. There is no clear indication in the statement of the case, nor is the learned standing counsel in a position to assert that there was a memorandum of cross-objection before the Tribunal. In paragraph 4 of the statement of facts, it has been stated:
Against the said order, the opponent (assessee) filed an appeal before this Tribunal and in the said appeal the State canvassed the rate of tax on sewing thread to be revised.
It is well-settled now that in second appeal by the assessee an advantage obtained by him from the first appellate authority in the absence of appeal or cross-objection by the revenue is not open to attack. Besides, this Court has already held that sewing thread is cotton yarn (see Srinivasa Distributing Agencies v. State of Orissa  48 STC 453. In reaching its conclusion, the Division Bench of this Court referred to the decision of the Allahabad High Court in the case of Mohta Trading Co. v. Commissioner of Sales Tax  38 STC 11 and did not agree with the Allahabad High Court and held that sewing thread was included in 'yarn'. It also referred to the communication from the Ministry of Finance of the Government of India which the State Government ultimately adopted and held that sewing thread would be covered by the term 'cotton yarn'. The learned standing counsel conceded that the decision of this Court squarely applies, but he pleaded that the matter may be referred to a larger Bench for reconsideration of the decision of this Court in view of a later decision of the Kerala High Court in the case of K.C. Pappu & Sons v. State of Kerala  48 STC 460. As we find, the Kerala High Court referred to the reported decision of this Court and did not choose to follow it. Relating to the estoppel part of the dispute, the Kerala High Court indicated that on the facts as pleaded in that case the question of promissory estoppel did not fall for consideration. We find that the Tribunal at the reference stage had referred to a decision of the Calcutta High Court in the case of Indian Ball Thread Co. Ltd. v. Commercial Tax Officer ILR 1963 Cal 168, where it had been held that yarn and sewing thread were one and the same commodity. We are not inclined to accept the submission of the learned standing counsel that the matter should be referred to a larger Bench merely on account of the fact that the Kerala High Court did not approve of this Court's decision. As already pointed out, this Court's conclusions were based upon two aspects, one relating to the merit of the matter and the other referable to the plea of promissory estoppel. We are inclined to reiterate the view expressed in the reported decision of this Court and would humbly differ from the view taken by the learned Judges of the Kerala High Court. For the reasons indicated in the reported Judgment of this Court, our answer to the question referred is against the revenue and we would hold that sewing thread is taxable at the same rate as prescribed for the cotton yarn.
There will be no order for costs.
B.K. Behera, J.
3. I agree with my Lord, the Chief Justice.