Sudhir Agarwal, J. - (1.) HEARD Sri Bharat Ji Agrawal, senior advocate, assisted by Sri Piyush Agarwal, advocate for the revisionist and learned standing counsel for the respondent. This trade tax revision under section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act, 1948") has been preferred being aggrieved by the judgment dated October 15, 2004 passed by the Trade Tax Tribunal, Bench -I, Agra, holding that gutkha product, manufactured and sold by the revisionist -assessee under the brand name "Gold Mohar Gutkha" is taxable as unclassified goods at 10 per cent in view of State Government Notification No. 1947 dated June 26, 1997. The revisionist is also aggrieved by the view taken by the Revenue that sale of generator, which was in working/running condition, was taxable at eight per cent and not five per cent .
(2.) THE assessment year in dispute is 2001 -02. The dealer disclosed its taxable turnover of Rs. 1,22,37,495.20 and admitted tax liability of Rs. 12,13,795. The maintenance of accounts was not found irregular and, therefore, figures of sale, purchase and turnover, disclosed by revisionist -assessee, were believed by the assessing authority. However, he found that the dealer has disclosed sale of "gutkha" worth Rs. 22,18,58,748.32 but no tax liability thereon was admitted. It was said that tax on sale of "gutkha" from September 1, 2001 to March 31, 2002 was abolished and for the period April 1, 2001 to April 3, 2011, in view of the judgment of the Supreme Court in Kothari Products Ltd. v. Government of Andhra Pradesh : [2000] 119 STC 553 (SC), no trade tax was leviable since it is liable for additional excise duty under the Central Excise Tariff Act at 18 per cent . The total sale of gutkha for entire assessment year was Rs. 22,18,58,748.32, out of that, sale during the period April 1, 2001 to August 31, 2001 was Rs. 8,64,71,820.50. The assessing authority held that sale of "gutkha" during the period April 1, 2001 to August 31, 2001, was taxable as unclassified item, i.e., 10 per cent and therefore, dealer was liable to pay tax on sale of "gutkha" during the aforesaid period to Rs. 86,47,182. Similarly on sale of old generator, he impound tax at the rate of 10 per cent which came to Rs. 16,500 and accordingly passed order dated February 28, 2004. There are some other items also with which this matter has no concerned. Disputing imposition of tax on sale of "gutkha" and old generator, revisionist -assessee preferred Appeal No. 122 of 2004. The Joint Commissioner (Appeal) -4, Trade Tax, Agra upheld the view taken by the assessing authority that 10 per cent tax was leviable on sale of "gutkha" treating it as "unclassified item". However, in respect of tax liability on sale of generator, the appellate authority held that instead of treating it as an unclassified item, it was taxable in the category of machinery and therefore, eight per cent tax is leviable. Accordingly, it granted relief to the extent of two per cent in tax rate on the sale of generator. In the total disputed tax liability, relief of Rs. 3,300 was given to the assessee. Dissatisfied with this judgment, the assessee took up the matter to the Tribunal in Second Appeal No. 473/2004 but here also lost as Tribunal has rejected appeal vide judgment dated October 15, 2004 giving rise to the present revision.
(3.) THE questions of law, which have arisen in this revision are: "(A) Whether in view of the decision of the Supreme Court in Kothari Products Ltd. v. Government of Andhra Pradesh : [2000] 119 STC 553 (SC), 'gutkha' being covered under Central excise tariff item Nos. 2404.11 and 2404.12, hence a declared goods, under section 14(ix) of the Central Sales Tax Act, and, it cannot be subjected to tax as an 'unclassified item'? (B) Whether no notification having been issued in respect of declared goods, namely, 'gutkha', falling under section 14(ix) of the Central Sales Tax Act, hence in view of the decision of the honourable Supreme Court in Commissioner of Sales Tax, U.P. v. Agra Belting Works : [2001] 121 STC 396 (SC), no tax was payable by the applicant? (C) Whether in view of the facts and circumstances of the case, the Trade Tax Tribunal was justified in imposing tax on the sale of 'gutkha' at 10 per cent ? (D) Whether the Trade Tax Tribunal was justified in imposing tax on the sale of 'generator' in running condition treating it as 'old discarded and unserviceable machinery'? (E) Whether Trade Tax Tribunal was justified in imposing tax at the rate of eight per cent on the sale of 'generator' -;