Brijlal Gupta, J. - (1.) This is a writ petition under Article 226 of the Constitution.
(2.) The prayer contained in the petition is, that a writ of mandamus may be issued, requiring the respondent to refund to the petitioner the sales tax realized by the petitioner in excess of three pies per rupee, on sale by it, of dhotis, saris, chadars, towels, canvas, rags and fents during the assessment years 1948-49 to 1955-56- Assessment orders in respect of these years were passed on 5th October, 1950, 26th April, 1956, 2nd January, 1957, 19th September, 1959, 20th August, 1955, 6th September, 1957, 12th November, 1956, and 21st May, 1958, respectively. Some of these orders were passed on appeal, or on re-assessment, under appellate orders of remand. There is also a prayer that the said assessment orders be quashed in so far as they impose a tax in excess of three pies per rupee in respect of the articles mentioned above. The writ petition was filed on 21st October, 1959.
(3.) The point raised in the writ petition is that what is taxable under entry 2 of List I of the Notification No. ST 117/X-923-I948, dated 8th June, 1948, issued under Section 3-A of the U. P. Sales Tax Act, is "cloth manufactured by mills", and the articles mentioned above do not fall under that description and were not taxable at six pies per rupee but were merely general articles taxable at three pies per rupee under Section 3. Hence the sales tax paid in excess of three pies per rupee in the years in question on the petitioner's turnover of those articles was paid under a mistake of law and by reason of the decision of the Supreme Court reported in Sales Tax Officer, Banaras and Ors. v. Kanhaiya Lal Makund Lal Saraf [1958] 9 S.T.C. 747, the petitioner was entitled to refund.;