- (1.) A. P. MISRA, J. Since common questions are raised and similar argument has been advanced, the present petitions are being disposed of by a common judgment.
(2.) WRIT Petition Nos. 1118 of 1994 and 601 of 1995 challenge the proceedings under section 21 of the U. P. Sales (Trade) Tax Act and WRIT Petition No. 106 of 1995 challenges the proceedings under section 10b of the said Act. In all these cases the assessing authority has taxed the commodity "nylon mono filament" under the entry : " Yarn of all kinds except those covered by any other notification". at the rate of 2 per cent. But issuance of notice under the aforesaid provision is founded on the basis of the decision of the learned single Judge in the case of Ganga Devi Agencies v. Commissioner of Sales Tax STI 1994 All. 212 wherein the commodity was held taxable as unclassified item. For the petitioners contention is, the said decision cannot be an authority to treat the said commodity as unclassified as the said decision was arrived in the absence of any evidence adduced by the dealer, viz. , mono filament is of the technical specifications mentioned in the instructions of the Central Board of Customs and Central Excise, assessed to excise duty and in the absence of even argument that the mono filament in question is capable of use as yarn for manufacturing fabric or it being used for that purpose. Further no material to prove that the commodity in question is only treated as yarn was brought to the notice, before any of the authorities including the High Court. Relevant portion is quoted hereunder : " 5. In the present case the commodity in question is known as mono filament Admittedly the dealer's customers are using it for the manufacture of shaving brushes. No evidence has been adduced during the proceedings that this mono filament is of the technical specifications mentioned in the instructions of the Central Board of Customs and Central Excise or it was being assessed to excise duty in the hands of the manufacturer as yarn. It was not even argued that the mono filament in question is capable of being used as yarn for manufacturing of fabrics or it is actually being used for that purpose anywhere else. . . . . . . . . No material to prove this was brought to my notice and does not seem to have been produced before any of the authorities below. " Repelling this preliminary objection of the respondents is to go before the authorities and show cause, it is contended the decision of the learned single Judge (Ganga Devi Agencies v. Commissioner of Sales Tax STI 1994 All. 21), declaring the said commodity, though in the absence of material placed by the dealer by upholding the decision of the Tribunal as taxable as an unclassified item, unless this is clarified by this Court the authorities will be bound.
(3.) FROM the aforesaid quoted passage in the case of Ganga Devi Agencies STI 1994 All 212, it is clear that the said decision was arrived at in the absence of material placed by the dealer not only before this Court but even before any of the statutory authority under the Act. This Court in that decision further recorded, while concluding : ". . . . . . . . . . In my view therefore, in the absence of any material to show that the article in question is either capable of being used as yarn or is known as such in the trade or commercial circles, it is not possible to accept the same as yarn simply because it has a similar appearance. " The said decision is a decision applicable to that case to that dealer but would not be applicable, if other dealers come forward and show that the said commodity is spun strand and primarily used in weaving, knitting or rope-making by placing relevant evidence to substantiate. Hence, we have no hesitation to make it clear that this decision will not come in the way of the various authorities created under the aforesaid Act to come to a conclusion different from what it was held in the case, in case any dealer puts forward the relevant material as aforesaid.;