Tulzapurkar, J. - (1.) This appeal by special leave raises the question whether hypodermic clinical syringes could be regarded as 'glassware' under Entry No. 39 of the First Schedule to U. P. Sales Tax Act, 1948
(2.) The facts giving rise to the question lie in a narrow compass. The appellant firm (hereinafter called the assessee) manufactures and sells hypodermic clinical syringes. For the assessment year 1973-74 the assesses filed a return disclosing net U. P. sales of such syringes at Rs. 95,065/- The disclosed turnover was accepted by the Sales Tax Officer, Sector III Muzaffarnagar, but -as regards the rate of tax the assessee contended that the clinical syringes in respect of their turnover of Rs. 91,513/- up to November 30, 1973 should be regarded as an unclassified item and taxed at the rate of 31/2% or at 4% as "hospital equipment and appariatus" under Entry 44 of the First Schedule to the Act and on the turnover of Rs. 3,552/- for the period from December 1, 1973 to March 31, 1974 at the rate of 7% as an unclassified item. The Sales Tax Officer, however, treated the syringes as "glassware" and taxed the entire turnover of Rs. 95,065/- at the rate of 10% under Entry No. 39 of the First Schedule. The said assessment was upheld in appeal by the Assistant Commissioner (Judicial), Sales Tax. Muzaffarnagar and also in revision by the Additional Judge (Revision), Sales Tax, Saharanpur on August 16, 1979. It is this view taken by the assessing authorities as well as by the Additional Judge in revision that is being challenged by the assesses before us in this appeal.
(3.) It may be stated up to November 30, 1973 there were two competing entries in 'the First Schedule to the U. P. Sales Tax Act so far as the item in question is concerned, namely. Entry 39 which ran: "Glasswares other than hurricane lantern, chimneys, optical lenses and bottles" and Entry 44 which ran: "Hospital equipment and apparatus" and 'for an item falling under the former the rate of tax was 10% while under the latter the rate of tax was 4% and for an unclassified item the rate was 3 1/2 %. From December 1, 1973 onwards, Entry 44 was deleted and, therefore, if the clinical syringes did not fall within Entry 39 it became an unclassified item under S. 3A (2A) of the Act and the rate of tax was 7%. In view of this position that obtained for the relevant periods during the assessment year 1973-74 the assessee had claimed before the assessing authorities that its turnover in respect of syringes for the period. up to November 30, 1973 was liable to tax at 31/2% as an unclassified item or in the alternative at 4 % as "hospital equipment" under Entry 44 and its turnover for the period., from December 1, 1973 to March 31, 1974 was liable to be taxed at 7% as an unclassified item. But, negativing its contentions the entire turnover was held to be taxable at the rate of 10% on the basis that clinical syringes fell within the expression "glassware" occurring in Entry 39. Counsel for the assessee contended before us that in the absence of any definition of "glassware" in the Act that expression must be understood in the ordinary commercial parlance and not in any scientific and technical sense and if such test were applied to the instant case then clinical syringes manufactured and sold by the assessee could never be regarded as "glassware". Counsel pointed out that the Revising Authority negatived the contention of the assessee in view of a decision of the Allahabad High Court in the case of Commr. of Sales Tax v. S. S. R. Syringes and Thermometers, 1973 Law Diary 178 but urged that the contrary view taken by the Orissa High Court in the case of State of Orissa v. Janta Medical Stores, (1976) 37 STC 33 that thermometers, Lactometers, syringes, eye-glasses, etc. do not come within the meaning of the expression "glassware" in Entry No. 38 in the Schedule to the relevant Notification issued under the first proviso to Section 5 (1) of the Orissa Sales Tax Act, 1947 was correct. In our view counsel's contention has considerable force and deserves acceptance.;