GULATI, J. - (1.) THIS is a reference under section 11(3) of the U.P. Sales Tax Act relating to the assessment years 1964-65 and 1965-66 raising a common question of law.
(2.) THE assessee is a dealer in cement, white cement, refractory cement, etc. The turnover of all varieties of cement was assessed at 7 per cent. The assessee appealed and contended that white cement and refractory cement were not the same thing as ordinary cement and should have been assessed as unclassified items and not at the rate of 7 per cent which is applicable to ordinary cement only. This contention was accepted by the appellate authority and the order of the appellate authority has been upheld by the Judge (Revisions). The Commissioner of Sales Tax is aggrieved and at his instance the following question of law has been referred to us for opinion : "Whether, on the facts and in the circumstances of the cases, white cement, refractory cement and cement are the same commodity and the turnover of white cement and refractory cement should have been taxed at turnover of cement at 7 per cent under Notification No. ST-6438/X - 1012-1962 dated 1st December, 1962." Under the notification dated 1st December, 1962, issued under section 3-A of the U.P. Sales Tax Act, cement other than cement covered by entry 46 of the schedule is liable to tax at the rate of 7 paise per rupee at the point of sale by the manufacturer, if it is manufactured in U.P. or at the point of sale by the importer, if it is imported from outside U.P. Under entry 46 also the rate is 7 paise per rupee. It deals with cement sold by stockists appointed by the State Trading Corporation of India or stockists appointed by the Government Cement Factory, Churk, Mirzapur. So this entry 46 is not material for our purposes.
(3.) THE word "cement" not having been defined in the Act or in the Rules, it has to be understood as in common parlance. Cement is a commodity of everyday use. White cement is only a special variety of ordinary cement which is grey in colour. Ordinary cement is most extensively used as a building material. The white cement or refractory cement is also used as a building material, but sparingly because of its high price. White cement is ordinarily used in flooring and other decorative cement works.;