SINGH, J. - (1.) THE Additional Revising Authority, Sales Tax, Allahabad Range, has referred the following two questions for our opinion : "(1) Whether, upon the facts and in the circumstances of this case, the hair clippers (Baal katne ki machine) were unclassified items or were of mill-stores and hardware as contemplated by Notification No. ST-1367/X - 1045(19)-1960 dated 5th April, 1961, or were machinery as contemplated by Notification No. ST-7098/X - 1012-1965 dated 1st October, 1965 ? (2) Whether, upon the facts and in the circumstances of this case, the assessee was liable for tax on the aforesaid sales of Rs. 4,974.90 in respect of the hair clippers (Baal katne ki machine) at 2 per cent or 3 per cent or 6 per cent ?
(2.) THE assessee imported hair clippers against C form and sold them in the assessment year 1966-67. He admitted liability to pay tax from their sales at 2 per cent under section 3 of the U.P. Sales Tax Act. The Sales Tax Officer took the view that hair clippers were hardware and taxed them at 3 per cent. The assessee thereafter filed an appeal, but the question as to the rate of tax which was imposable in respect of the turnover of hair clippers was not considered by the appellate authority. Thereafter, a revision was filed by the dealer. Before the revising authority, the State took the stand that hair clippers fell within the category of machinery as given in Notification No. ST-7098/X - 1012-1965 dated 1st October, 1965, or were hardware as contemplated by Notification No. ST-1367/X - 1045(19)-1960 dated 5th April, 1961. The revising authority took the view that the hair clipper did not fall within any of these categories and were really a type of scissors, and were not understood in common parlance or in the business community as falling within the category of machinery. So far as the first question is concerned, in view of the decision of the Full Bench in Commissioner, Sales Tax, U.P. v. Ram Niwas Pushkar Dutt, Faizabad ([1971] 28 S.T.C. 736), it is difficult to see how hair clippers can be categorised as hardware. In the Full Bench decision, it has been held that mill-stores and hardware are all those articles which have something in common with each other. It has not been suggested that hair clippers have anything in common with mill-stores. This being so, hair clippers cannot be said to fall under the category of hardware.
(3.) COMING now to the second question, in the Full Bench case of Engineering Traders v. State of U.P. and Another ([1973] 31 S.T.C. 456; 1973 U.P.T.C. 91], the notification in question which runs as under : "In exercise of the powers under section 3-A of the U.P. Sales Tax Act, 1948 (U.P. Act No. 15 of 1948), the Governor of Uttar Pradesh is pleased to declare that, with effect from October 1, 1965, the turnover in respect of machinery and spare parts of machinery, not being such machinery or spare parts thereof as are taxable under any other notification issued under the aforesaid section, shall not be liable to tax except - (a) in the case of aforesaid goods imported from outside Uttar Pradesh, at the point of sale by the importer; and (b) in the case of the aforesaid goods manufactured in Uttar Pradesh, at the point of sale by the manufacturer; and the Governor is further pleased to declare that the turnover in respect of aforesaid goods shall, with effect from October 1, 1965, be liable to tax at the rate of six paise per rupee." ;