SETH, J. - (1.) AT the instance of the Commissioner of Sales Tax, U.P., the Additional Judge (Revisions), Sales Tax, Bareilly, has stated the case and referred the following question for the opinion of this court in respect of the assessment year 1964-65 : "Whether G.I. pipes for the year under question shall be taxed as hardware at the rate of 3 per cent or as an unclassified item at 2 per cent."
(2.) FOR the assessment year 1964-65, the assessee, Messrs. Jindal Bros., filed returns, disclosing the turnover of the sale of G.I. pipes, effected by it, at Rs. 12,700. However, the Sales Tax Officer determined the turnover at Rs. 48,000 and calculated the sales tax payable on it by applying the rate of 3 per cent on the footing that G.I. pipes were hardware. In appeal, the assessee's turnover was fixed at the reduced figure of Rs. 17,000 and it was held that G.I. pipes being unclassified item, its turnover was liable to sales tax at 2 per cent. The Commissioner of Sales Tax took the matter up in revision. The Judge (Revisions), Sales Tax, applying the ratio of the decisions of this court in the cases of Commissioner of Sales Tax v. Aftab Husain Imdad Husain ([1970] 25 S.T.C. 471) and Fine Trading Corporation v. Commissioner of Sales Tax, U.P. ([1970] 25 S.T.C. 474), held that G.I. pipes could not be said to be hardware and as such their turnover could be subjected to sales tax as unclassified item at 2 per cent. However, as the cases relied upon by the Judge (Revisions) did not deal with the precise question whether G.I. pipes could be considered to be hardware and there was no direct authority of this court on that question, he has referred the aforesaid question of law for the opinion of this court. It may be mentioned here that, before the sales tax authorities, in order to claim that the turnover of the sale of G.I. pipes was liable to be taxed at 3 per cent, the revenue relied upon Notification No. ST-1367/X - 1045(19)-1960 dated 5th April, 1961.
(3.) WHILE pressing the Judge (Revisions) to refer the question for the opinion of this court, the departmental representative appearing for the Commissioner, Sales Tax, made a reference to a subsequent Notification No. ST-2104/X - 902(16)-52 dated 21st May, 1963, wherein it had been provided that the rate of tax in respect of the turnover of the sales of ware made of any metal or alloy other than aluminium or brass was being raised from 2 paise to 3 paise per rupee, and contended that in any case the G.I. pipe whether it was an item of "hardware" or not, it certainly was a ware made of metal or alloy other than aluminium or brass and as such its sale was taxable at the rate of 3 per cent under the notification dated 21st May, 1963. The Judge (Revisions) points out that no reference to this notification had been made either in the revision petition or even in the application for reference. Hence, it could not be said that the question based on the notification dated 21st May, 1963, arose from his revisional order and no reference on its basis could therefore be made. As the question whether the turnover of the sale of G.I. pipes is taxable at 3 per cent under notification dated 21st May, 1963, has not been referred to this court, we will deal merely with the question whether G.I. pipes are covered by the expression "mill-stores and hard-ware" as used in the notification dated 5th April, 1961, and, as such, the turnover of their sale is liable to be taxed at 3 per cent as provided by that notification.;