GULATI, J. - (1.) THIS is a petition under article 226 of the Constitution. The petitioner is a dealer in water pumping sets. It has been urged by the petitioners that these pumping sets are agricultural implements and, as such, are liable to tax under the U.P. Sales Tax Act at 2 per cent. The sales tax department, on the other hand, treats these pumping sets as machinery and has taxed their turnover at 6 per cent. In Delta Engineering Co. v. Commissioner of Sales Tax ([1963] 14 S.T.C. 515), a Division Bench of this court has held that centrifugal pumps fixed in tube-wells are not agricultural implements. Another Division Bench in M/s. Chandra Metal Co. v. Commissioner of Sales Tax (Sales Tax Reference No. 273 of 1963 decided on 23rd December, 1965) has held that pumping sets are not agricultural implements. The Division Bench, before whom this petition came up for hearing, thought that the aforesaid two decisions of this court might require reconsideration and hence referred the case to a larger Bench. That is how this and the connected writ petition have now come up before us.
(2.) BEFORE we examine the main question, it is necessary to dispose of a preliminary point raised by the learned standing counsel. He urges that the petitioner has an alternative remedy by way of appeal under the Act, which he has already availed of and, as such, the writ petition is not maintainable. It is true that against the assessment for the year 1966-67 the petitioner has preferred an appeal, which is still pending on remand by the revising authority. In the meantime, the Sales Tax Officer has passed an assessment order for the assessment year 1967-68 creating a huge tax demand of Rs. 83,000, which is three times the amount which would be payable according to the petitioner. Assessment proceedings for the year 1968-69 have also been started and, according to the petitioner, the Sales Tax Officer intends to levy tax at 6 per cent. Then there are two decisions of this court, referred to above, where it has been held that centrifugal pumps and other pumping sets are not agricultural implements. So long as these decisions stand, no sales tax authority is likely to take a contrary view. Even if the matter comes before this court by way of a reference, the same is bound to be decided against the assessee unless a Full Bench is constituted to reconsider the aforesaid two decisions. All this is bound to take a long time and tax being recurring one, the petitioner is likely to be subjected to a huge liability, which might impair his business. In these circumstances, we are of the opinion that the alternative remedy under the Act is not efficacious and speedy. Moreover, the petitioner has challenged the vires of section 3-AB of the Act. Such a question cannot be decided by the authorities under the Sales Tax Act. We, accordingly, reject the preliminary objection. The notification with which we are concerned is No. ST-1365/X-990-1956, dated 1st April, 1960, issued under section 3-A of the Act and so far as material for our purposes, reads : "In exercise of the powers conferred by section 3-A of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. 15 of 1948), as amended from time to time, the Governor of Uttar Pradesh is pleased to - Supersede, with effect from April 1, 1960, all the previous notifications so far as they relate to the goods mentioned in column 2 of the schedule hereto and the rates of sales tax given in such notifications, and Declare that, with effect from April 1, 1960, the turnover in respect of the goods mentioned in column 2 of the schedule hereto shall be liable to tax only at the point of sale specified in column 4 thereof and under the circumstances specified in column 3 thereof.
(3.) THE Governor is further pleased to declare that as from April 1, 1960, the rate of tax in respect of the turnover of individual goods mentioned in the aforesaid column 2 shall be as mentioned against each goods in column 5 of the schedule hereto. SCHEDULE ------------------------------------------------------------------------ Sl. Name of goods Circumstances under Point of Rate of No. which to be taxed tax tax ------------------------------------------------------------------------ 1 2 3 4 5 ------------------------------------------------------------------------ 38 Agricultural (a) Imported from (a) Sale 2 paise implements (other outside Uttar by importer. per than those worked Pradesh. rupee. by human or animal power), including (b) If manufactured (b) Sale by " " their parts and in Uttar manufacture. accessories, other Pradesh. than tyres and tubes. ------------------------------------------------------------------------ The entry No. 38 of the schedule reproduced above was modified with retrospective effect (from 1st April, 1960) by Notification No. ST-6552-X-900(31)-1965 dated 1st September, 1965. The modified entry reads : "Agricultural implements other than those worked by human or animal power and tractor including their parts and accessories other than tyres and tubes." ;