1. The Gujarat Sales Tax Tribunal has referred the following two questions for the opinion of this Court under section 69 of the Gujarat Sales Tax Act, 1969.
'(1) Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that though pumps and pumping sets in question are agricultural machinery and implements exclusively used in the agricultural operations, they are covered by not entry 5 but entry 36 of Schedule II-Part A to the Gujarat Sales Tax Act, 1969
(2) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in interpreting the term 'exclusively' used in entry 5 in Schedule II-Part A to the Gujarat Sales Tax Act, 1969, and to hold that in order to see whether the water pumps and water pumping sets are 'exclusively' used in agricultural operations, one has to see the ordinary or common use and not possible use ?'
2. It is agreed that the first of these questions takes care of the second question also and if we decide the first question, it will not be necessary to go to the second question.
3. The assessee is a manufacturer of monoblock centrifugal pumps. The assessee's case is that the pumps so manufactured by him are 'agricultural pumps' as opposed to 'domestic pumps' or 'industrial pumps'. To support this distinction, the assessee relies on two characteristics of the pumps manufactured by him, which characteristics, according to him, are distinct for agricultural pumps. They are (i) that the range of their horse power is from 2 to 10 which is much lower than the range of industrial pumps, and (ii) that whereas in the domestic and industrial pumps suction is limited while delivery is always longer, in the two pumps in question suction is longer while delivery is immediate having regard to the use of those pumps for watering the fields.
4. These proceedings arise out of an application made by the assessee under section 62 of the Gujarat Sales Tax Act, 1969, for determination of the question as to what is the correct rate of tax payable on the sales of the pumps manufactured by him. If they are 'agricultural machinery' within the meaning of entry 5 of Schedule II-Part A during the year relevant to the case, the pumps would be taxable at three paise in the rupee; while if the applicable entry was 36(2) of Schedule II-Part A relating to 'water pumps and water pumping sets', the pumps would be taxable at six paise in the rupee. The Deputy Commissioner of Sales Tx determined the appropriate entry as entry 36(2) and the Gujarat Sales Tax Tribunal upheld the decision of the Deputy Sales Tax Commissioner. It is under these circumstances that the above questions have arisen for our opinion.
5. A Division Bench of this Court felt that they would be inclined to take the view that having regard to the distinct features and special adaptability of the pumps for agricultural use, the pumps must be taken to be covered by entry 5 of Schedule II-Part A to the Act. But the legislative history of the provision having been brought to their notice and such legislative history having been shown to have been understood in an earlier Division Bench decision in Patel Tractor Company v. State of Gujarat (Sales Tax Reference No. 1 of 1975 decided on 21st June, 1976 - Gujarat High Court), in a particular manner, the questions, according to the learned Judges, called for consideration by a larger Bench. Evidently, the Judges who referred the case to a larger Bench doubted the correctness of the decision of Patel Tractor Company's case (S.T.R. No. 1 of 1975 decided on 21st June, 1976 - Gujarat High Court).
6. It may be necessary to refer to the two relevant entries in Schedule II-Part A, viz., entry 5 and entry 36, as they stood at the relevant time. These entries have subsequently undergone amendment and it may not necessary to refer to those amendments from time to time for the purpose of this case. Those entries read :
------------------------------------------------------------------------Sr. No. Description of goods Rate of Rate ofsales tax purchase tax1 2 3 4------------------------------------------------------------------------ '5 Agricultural machinery and Three paise Three paiseimplements (other than in the rupee in the rupeeimplements specified in entry19 in Schedule I) exclusivelyused in agricultural operations and spare parts of suchmachinery and implements. 36 (1) Tractors and spare parts Six paise in Six paise inand accessories thereof. the rupee the rupee(2) Water pumps and water Six paise in Six paise inpumping sets. the rupee the rupee.' ------------------------------------------------------------------------
7. Perhaps in regard to water pumps and water pumping sets, the question may not be of relevance now because as it stands today while these are taxable as six paise in the rupee, the tax on goods falling with entry 5 also is taxable at six paise in the rupee. That is not the case with regard to the period with which we are concerned.
8. We have particularly to notice that the words in entry 5 'agricultural machinery and implements' are qualified by the words 'exclusively used in agricultural operations'. Evidently the entry would apply not to every machinery and implement which happen to be used in agriculture. If such machinery or implement is adaptable for use in industry or for domestic purposes, it may not fall within entry 5, for, then the qualification that it must be 'exclusively used in agricultural operations' may not be available.
9. On the facts, there is no dispute in this case. The Sales Tax Tribunal has categorically found in its order :
'We have carefully considered the literature produced before us and we are of the view that the pumps and pumping sets in question are designed for agriculturists to draw water from the well for irrigating their lands. The salient features of these pumps are that suction in these pumps is longer while delivery is immediate on the field. Further, 3-phase pumps are not suitable for domestic use since 3-phase supply is normally not available in houses. As in this case suction is longer and delivery is immediate on the field, these pumps are more suitable in agriculture rather than in industries because in domestic and industrial pumps suction is limited while delivery is longer. Further, these pumps have got ranges from 2 horse power to 10 horse power while other pumps have very high ranges. In view of these facts brought out from the literature shown to us, it is obvious that these pumps are designed for agriculturists. Further it is stated before us that they are sold through the dealers of the appellant to various agriculturists. Thus we can safely hold that these pumps are specially designed for agricultural operation.'
10. The question of law the we are called upon to determine is on the basis of these facts found by the Tribunal.
11. It is not disputed that the principle to be applied in cases where a court is called upon to determine whether an item would fall within one entry or the other would be the principle stated in the decision in Siemens Engineering and . v. Union of India AIR 1976 SC 1785. That a specific item must give way to a general item is a rule well established and if a specific provision is made and that provision is applicable, even though the case may fall within the general provision also, it is the specific provision that would apply. The case before the Supreme Court concerned the appropriate entry for the purpose of imposing import duty on 'pot motors' imported by the appellant. These pot motors were imported from Germany. They were specially adapted for use as component parts of textile machinery. Item 72(3) of the First Schedule to the Indian Customs Tariff Act related to 'component parts of machinery as defined in item Nos. ............ 72(1) ............. essential for the working of the machine or apparatus and have been given for that purpose some special shape or quality which would not be essential for their use for any other purpose but excluding small tools like twist drills and reamers, dies and taps, gear cutters and hacksaw blades'. It may not be necessary to refer to the proviso to that item. The question was whether the pot motors imported by the appellants as component parts of the machinery falling under item 72(1) of the First Schedule, viz., textile machinery, would fall within item 72(3) or they would fall within item 73(21) which comprised of 'electric motors, all sorts, and parts thereof'. It was found that the pot motors imported by the party were clearly component parts of rayon spinning machinery. That was not disputed. They were clearly and indubitably essential for the working of the rayon spinning machines and they were specially designed for use in spinning frames for manufacturing rayon thread. Nevertheless they were electric motors falling within item 73(21) of the First Schedule. Though they were electric motors, since they were adapted for use as component parts of machinery as defined in item 72(1), the Supreme Court took the view that the pot motors clearly fall within the description given in item 72(3). Having found so, the Supreme Court went on to say :
'There can be no doubt that on a plain grammatical construction, the words 'not otherwise specified' qualify 'machinery' and not 'component parts' and therefore, the pot motors imported by the appellants, which satisfied the other requirements of item 72(3) could not be held to fall outside that item, because they were otherwise specified in item 73(21). Item 72(3) is a specific item which covers these pot motors as against item 73(21) which is a general item and hence it must be held that these pot motors were assessable under item 72(3) and not under item 73(21).'
12. We are referring to this decision to indicate that though pot motors may be specific item, when pot motors have been specially designed to be used as component parts of machinery, then pot motor will be a general item and pot motor so specially designed as to fall within the specific entry would be a special item. Whether one is general or special item would depend on an appreciation of facts of each case.
13. Before we discuss the entries with which we are concerned here, we may advert here to two decisions of this Court to which reference has been made in the order of reference by the Division Bench. Incidentally, it will also be necessary to refer to the legislative history of these provisions. The Bombay Sales Tax Act, 1959, was in force in the territories of the Gujarat State prior to the Gujarat Act coming into force. Under the Bombay Sales Tax Act, 1959, entry 12 in schedule C dealt with the 'rate of sales tax' on 'agricultural machinery and implements (other than implements specified in entry 1 in Schedule A) and parts of such machinery and implements'. This tax leviable was three naye paise in the rupee. There was no entry corresponding to entry 36 in the Gujarat Act in the Bombay Act. Therefore, as matters stood then, if the machinery and implements did not fall within entry 12 of Schedule C as 'agricultural machinery and implements' and also did not fall within any other specific entry, they would have fallen within the residuary entry, that being entry 22 in Schedule E. Even so, a question arose in this Court as to whether Massey-Ferguson farm tractor specially adapted for agricultural purposes can be said to be 'agricultural machinery and implements', and therefore, as falling within entry 12 of Schedule C and not within residuary entry 22 of Schedule E. This was decided in Vicas Tractors v. Commissioner of Sales Tax  27 STC 203. The court noticed that there are various varieties of tractors used at different places for a variety of purposes. There are farm or agricultural tractors, industrial tractors, road tractors and military tractors. Wherever according to the court, a question arose whether a tractor in a given case was an agricultural machinery or an industrial machinery or machinery of any other type, the question must necessarily be answered by reference to its design, mechanism, distinct features and special adaptability, if any, to any particular use out of the diversity of uses to which a tractor is capable of being put. On the facts before it, the tractors in question were found to be 'agricultural machinery' and taxable under entry 12 of Schedule C.
14. It is evident that this case concerned the entry as it stood prior to the commencement of the Gujarat Sales Tax Act, 1969. Entries 5 and 36 in the Act have a legislative history. The Sales Tax Inquiry Committee appointed to report on the question of the sales tax law, in its report to the Government, recommended, inter alia, rationalisation of rates. Paragraph 7.12 deals, among other things, with its recommendation regarding agricultural machinery and since that may be relevant, we advert to the part of the report.
'7. 12. Rationalisation of rates. - We have recommended increase or decrease of tax, grouping of commodities and removal of price differentiation in several commodities for reasons discussed below :-
(a) Agricultural machinery -
Agricultural machinery and implements (other than implements covered in tax-free schedule) and parts of such machinery and implements are taxable at a rate of 3 per cent at present. Tractors and spare parts and accessories thereof and water pumping sets are not included in the agricultural machinery at present. The tractors are used in agriculture but their only use is not that in agriculture. Our attention has been drawn to the decisions of the various courts which have interpreted commodities to fall within agricultural machinery on the test of primary and predominant use. Tractors in our country have at the present stage of development a large scale use in agriculture. Similarly water pumping sets have also a predominant use in agricultural production. We think that all these commodities which have known predominant use in agriculture should be specifically brought along with agricultural machinery instead of being left to interpretation about their predominant use. We have, therefore, proposed tractors and spare parts and accessories thereof and the water pumping sets to be included in the entry of agricultural machinery and implements.
We have proposed a rate of tax of 3 per cent on these commodities as a part of our rationalisation proposals. It was represented before us that electrical motor and oil engines are taxable at 3 per cent. However, water pumping sets being taxable under the residuary entry, water pumping sets coupled with electric motors or oil engines are also taxed under that entry. If electrical motors and pumping sets were sold separately or as stated by the dealers, if they are shown separately in the bill, electric motors would be taxed at 3 per cent, and water pumping sets would be taxed at 6 per cent. This position seems to us to be anomalous and leads to the practice of billing the commodities in such a way as to avoid the tax. In order to remove this anomaly, we have proposed water pumping sets which are also predominantly used in agriculture not to be taxed separately from agricultural machinery or differently from electric motors and oil engines.'
15. It is also evident from the report that even before the decision of this Court in Vicas Tractors' case  27 STC 203, there were decisions of various courts which had considered the applicability of the entry 'agricultural machinery' on the basis of the primary and predominant use of such machinery. It is also evident that the Sales Tax Inquiry Committee noticed that the tractors and water pumping sets have predominant use in agriculture. Evidently because of this, it was suggested by the Sales Tax Inquiry Committee that tractors and water pumping sets also be brought within entry 5 as 'agricultural machinery' instead of being left to interpretation as to their being of predominant use. Consequently, when the Bill was prepared in pursuance to the recommendation of Sales Tax Inquiry Committee, entry 5 stood thus :
--------------------------------------------------------------------------------- Sr. No. Description of goods Rate of sales tax Rate of purchase tax1 2 3 4--------------------------------------------------------------------------------- 5(1) Agricultural machinery Three paise in Three paise inand implements (other the rupee. the rupee.than implements specified in entry 19 in Schedule I)exclusively used in basic agricultural operationsand spare parts of suchmachinery and implements.(2) Tractors and spare parts and accessories thereof. (4) Water pumps and water pumpingsets. --------------------------------------------------------------------------------
16. There was no contemplation at that time, therefore, of the tractors and spare parts and water pumps and water pumping sets leviable to any rate of sales tax different from that on agricultural machinery. But the Select Committee which considered the Bill and reported on it did not approve of this suggestion. It is evident from the report of the Sales Tax Inquiry Committee that prior to its report, it was not as if all types of tractors and water pumps and pumping sets were treated as 'agricultural machinery' falling within entry 12 in Schedule C to the Bombay Sales Tax Act, 1959. Only such of those tractors, water pumps and water pumping sets as were equipped or adapted from sue as 'agricultural machinery' were treated as falling within entry 12 and hence leviable at a lesser rate. The suggestion of the Sales Tax Inquiry Committee, if implemented, would change the status quo in that, not only such of those tractors, water pumps and water pumping sets as referred to but all tractors, water pumps and water pumping sets would be taxed at the same rate as 'agricultural machinery'. That would be to change the status quo if that was adopted. The Select Committee found no reason to change status quo. The relevant part of the Select Committee's Report in paragraph 60 reads thus :
'60. Serial No. 5. - The committee thinks that the word 'basic' appearing in sub-entry (1) of this entry should be deleted. The committee also thinks that the rate of tax in respect of tractors and spare parts and accessories thereof and water pumps and pumping sets be raised from three paise as in the Bill to six paise in the rupee so as to maintain status quo in respect of the rate of tax as existing under the provisions of the Bombay Sales Tax Act, 1959. The items (2) and (3) in this entry have, therefore, been deleted and added at serial No. 36 in this Schedule.'
17. It may be pertinent to notice that the Select Committee suggested that in regard to water pumps and pumping sets, instead of taxing them at three paise by inclusion in entry 5, they must be taxed at six paise in the rupee so as to maintain status quo in respect of the rate of tax as under the earlier provisions of the Bombay Sales Tax Act, 1959. That is the reason behind inclusion of those items which have found a place as items (2) and (3) in entry 5 of the Bill based on the Inquiry Committee's report as entry 36 in Schedule II. In other words, the Select Committee made it clear beyond doubt that there is no need to effect the change in the rate of taxation which would be the consequence if the Bill based on the Sales Tax Inquiry Committee's report was adopted. It is well to remember that status quo was that of 'taxing tractors', 'water pumps and water pumping sets' which fall within the scope of 'agricultural machinery' at a lower rate of tax and not all that rate. If that be the position, then, it was not as if by giving an independent existence for tractors as well as water pumps and water pumping sets in entry 36 of Schedule II all tractors, water pumps and water pumping sets were intended to be taxed at a higher rate. Those which would fall within the term 'agricultural machinery' would necessarily be taxed under entry 5 of Schedule II. It is pertinent to notice in this context that no marked departure was made from the corresponding entry 12 in Schedule C to the Bombay Act in entry 5 in Schedule II to the Gujarat Act. The words 'agricultural machinery and implements' wee qualified by the words 'exclusively used in agricultural operations' to make the meaning evident. The position, therefore, was just as it was under the Bombay Sales Tax Act, 1959, as understood by the Division Bench in Vicas Tractors v. Commissioner of Sales Tax  27 STC 203. The further clarification in entry 5 in Schedule II-Part A by the words 'exclusively used in agricultural operations' and separate entry - entry 36 in Schedule II-Part A being introduced, serves to clarify the situation.
18. In this context, we must say that the decision of the Supreme Court does not in any way advance the case of the revenue. In that case, as we have stated, the general principle that a specific entry must yield to a general entry is restated but what a specific entry is and what a general is, will have to be determined by us in this case. It is not as if 'agricultural machinery and implements' is a general entry and 'water pumps and water pumping sets' constitute a special entry and 'water pumps and water pumping sets' constitute a special entry. 'Agricultural machinery' is as much a special entry as 'water pumps and water pumping sets'. But, the question here is, whether any class of water pumps and water pumping sets can fall within the scope of entry 5 in Schedule II-Part A If they could fall within entry 5, then entry 5 would be a special entry in regard to those items. In other words, while all water pumps and pumping sets may fall within the 'general' entry, entry 36(2) in Schedule II-Part A, such of those water pumps and water pumping sets as would qualify to fall within entry 5 would then be covered by the 'special' entry. It is not every 'agricultural machinery and implements' that would fall within entry 5. It should satisfy the requirement that it is 'exclusively used in agricultural operations'. Therefore, 'water pumps and water pumping sets' if they are 'agricultural machinery' and 'exclusively used in agricultural operations', would be one special class of 'water pumps and water pumping sets' and they would be within entry 5, Schedule II-Part A. On the facts, it has been found by the Tribunal that, 'water pumps and water pumping sets' in question are 'agricultural machinery' 'exclusively used in agricultural operations' and if that be so, it would be entry 5 that would be applicable and not entry 36(2).
19. Evidently this was the view reflected in the order of reference, but the Judges made the reference because of a decision of this Court which evidently spoke to the contrary. That is an unreported decision in Patel Tractor Company v. State Gujarat (Sales Tax Reference No. 1 of 1975 decided on 21st June, 1976 - Gujarat High Court). The same question arose before this Court in Vicas Tractors' case  27 STC 203 and had the learned Judges followed that decision, the conclusion would have been different. But, on the assumption that the legislative history called for a different approach to an understanding of entry 5, the learned Judges case to a different conclusion and held that all tractors would fall within entry 36 and not entry 5. They also assumed on the basis of the decision of the Supreme Court in Siemens Engineering and Manufacturing Co.'s case AIR 1976 SC 1785 which had been reported at that time, that the 'general' entry in this case would be 'agricultural machinery' and the 'special' entry would be 'tractors'. The approach by the High Court in Patel Tractor Company's case (S.T.R. No. 1 of 1975 decided on 21st June, 1976 - Gujarat High Court) to the appreciation of the significance of the legislative history is not warranted. The following observations in that case may be read :
'Therefore, if a question arose as to whether a particular tractor was agricultural machinery, it must be first determined whether the tractor could be more suitably and advantageously used for agricultural purposes having regard to its special design and features and if it was found that it was so adapted, then it would indeed be a farm tractor and would be agricultural machinery, notwithstanding the fact that it might occasionally or incidentally be capable of being used or may even be actually used for ancillary purposes which might be non-agricultural. This former state of law has now been changed by the legislative under the present Act of 1969.'
'The Select Committee, however, in its report thought that the rate of tax in respect of tractors and spare parts and accessories thereof and water pumps and pumping sets should be raised from the original three paise rate to six paise in a rupee so as to maintain status quo in respect of the rate of tax as existing under the old Act of 1959.'
'The Tribunal had, therefore, rightly held that there was clear legislative intention for levying tax on tractors of all kinds at the rate of 6 per cent and not at the rate of 3 per cent.'
20. There is an assumption by the learned Judges of the Division Bench that the law as it stood earlier was sought to be changed in the Gujarat Act so far as this question was concerned. We have been at pains to point out that while the decisions of the Courts had held that the predominant use of tractors, water pumps and water pumping sets would determined whether they were agricultural machinery, the Sales Tax Inquiry Committee directed inclusion of all tractors, water pumps and water pumping sets along with agricultural machinery as taxable at the same rate. Noticing that this would not be maintaining status quo, the Select Committee directed status quo to be maintained in the law and that was how entry 36 happened to find its place when the Bill took shape as the Act. Assumption, therefore, that the change of law was contemplated is not warranted and that has led to the approach in the judgment of the Division Bench.
21. In the fact and circumstances indicated, we have no hesitation in coming to the conclusion that water pumps and pumping sets in question fall within entry 5 of Schedule II-Part A at it stood at the relevant time. We, therefore, answer the first of the questions referred to us in the negative, i.e., in favour of the applicant-assessee. We do not think that the second question calls for any opinion from us in view of our answer to question No. (1).