SATISH CHANDRA, J. - (1.) THE Revising Authority, Varanasi, has referred the following questions for opinion of this court : "(1) Whether, in view of the above facts and in the circumstances of the case, the Additional Judge (Revisions), Sales Tax, Varanasi Range, Varanasi, was justified in holding sewai-ki-machine was brassware taxable at 3 per cent in view of Notification No. ST-6439/X - 1012-1962 dated 1st December, 1962 ? (2) Whether, in view of the above facts and in the circumstances of the case, sewai-ki-machine could be treated as machinery taxable at 6 per cent in view of Notification No. ST-7098/X - 1012-1965 dated 1st October, 1965 ?"
(2.) FOR the assessment year 1966-67 account books were accepted under which the turnover of sewai-ki-machines manufactured by the assessee was accepted at Rs. 3,336. The claim that sewai-ki-machines were brasswares and as such can be taxable at 3 per cent was repelled by the Sales Tax Officer. This view was upheld on appeal. Aggrieved, the assessee went up in revision. The Judge (Revisions) held that sewai-ki-machine in ordinary course of business is not considered to be a machine as accepted in the general sense. Machinery is something allied with rolling mill, etc. Sewai-ki-machine cannot be put in that category and has to be taxed as brassware. The position is not as simple as the Judge (Revisions) made it out. The notification dated 1st December, 1962, was issued under section 3 of the U.P. Sales Tax Act. It purported to levy sales tax at the rate of 3 per cent, inter alia, on brasswares. The notification dated 1st October, 1965, was issued under section 3-A. Under it "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" were liable to tax at the rate of 6 per cent at the point of import and manufacture in the hands of the importer or manufacturer respectively. Section 3 of the Act, as it stood in the years 1966 and 1967, provided for a levy of sales tax at the rate of 3 per cent on the turnover of every dealer. This section operated subject to the other provisions of the Act. Section 3-A stated : "Single point taxation. - (1) Notwithstanding anything contained in section 3, the State Government may, by notification in the official Gazette, declare that the turnover in respect of any goods or class of goods shall not be liable to tax except at such single point in the series of sales by successive dealers as the State Government may specify. (2) If the State Government makes a declaration under sub-section (1), it may further declare that the turnover in respect of such goods shall be liable to tax at such rate not exceeding ten paise per rupee as may be specified. (3) .............................." It will be seen that section 3-A operates "notwithstanding anything contained in section 3". Under it the State Government can specify any class of goods for being taxed at specified single point in the series of successive sales. Under sub-section (2) the State Government can fix the rate up to and a maximum of 10 paise per rupee. It is thus evident that if the State Government notifies the goods and the rate of tax under section 3-A, it is not taxable under section 3. It will be taxed at the specified point of sale at the rate mentioned in the notification issued under section 3-A.
(3.) IN the present case, "brassware" was notified to be taxable at 3 per cent under the notification issued under section 3 on 1st December, 1962, but the notification dated 1st October, 1965, issued under section 3-A made it clear that "machinery and their spare parts" were liable to be taxed only at the point of import and manufacture in the hands of importer or manufacturer at 6 per cent. This notification had the effect of excluding the other points of sale of machinery and spare parts of machinery from being liable to sales tax under section 3. In the next place, even if a particular machinery may be "brassware" so as to be covered by the notification dated 1st December, 1962, yet since it is specifically made liable to sales tax at the point of import and manufacture only it would be liable to sales tax at that point alone with the result that it ceases to be liable to tax under the notification dated 1st December, 1962, which was issued under section 3.;