GULATI, J. - (1.) UNDER section 11(1) of the U.P. Sales Tax Act, the Additional Judge (Revisions) Sales Tax, Agra, has submitted this statement of the case inviting the opinion of this court on the following question of law. "Whether the jewellery sold worth Rs. 2,10,209.69 in which precious stones were studded with gold and silver was covered by notification No. ST-1367/X-1045(19)-1960 dated 5th April, 1961, and was taxable as sales of gold or silver ornaments at 3 per cent. or was taxable as an unspecified item at 2 per cent. only ?"
(2.) THE assessee carries on business in jewellery, embroidery goods, brass wares, precious stones etc. There is no dispute about the turnover which has been accepted. The dispute, however, relates to the rate of tax on the sale of jewellery amounting to Rs. 2,10,209.69. The assessee contended that the jewellery in dispute was an unspecified item and its turnover was assessable under section 3 at the rate of 2 per cent. The Sales Tax Officer did not accept this contention and levied tax at the rate of 3 per cent. under notification No. ST-1367/X-1045(19)-1960 dated 5th April, 1961, issued under the second proviso to sub-section (1) of section 3. The assessee's contention prevailed with the appellate authority, but the Judge (Revisions) reversed the finding of the appellate authority and restored that of the Sales Tax Officer. The relevant notification of 5th April, 1961, declares that with effect from 5th April, 1961, the rate of tax in respect of the turnover of goods mentioned therein would be enhanced from two paise per rupee to three paise per rupee at all points of sale. Item No. 6 of that notification reads : "Ornaments made of gold or silver with or without any other alloy, and ornaments made of gold and sliver with or without any other alloy."
(3.) LEARNED counsel for the assessee contended that what is sought to be taxed at the enhanced rate under the notification of 5th April, 1961, are ornaments and not jewellery studded with precious stones, which, according to the learned counsel, is different from ornaments. In support of his contention he relies upon a subsequent notification No. ST-4127/X-905(12)-1967 dated 31st July, 1967, which reads : "Pearls including cultured pearls, precious and semi-precious stones, both real and artificial, and jewellery containing the same." ;