ASHWANI KUMAR MISHRA,J. - (1.) This revision is filed under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as the 'Act'), questioning an order passed by the Tribunal dated 23rd February, 2017, whereby second appeal filed by assessee for the years 2006-2007, 2007-2008 and 2008-2009 have been dismissed. The orders passed by Assessing Authority, as affirmed in first appeal have been maintained. The revision has been filed on the following questions:- "1. Whether the goods brought from outside the State of U.P. and used in the execution of works contract can be subjected to tax despite the fact that the turnover pertaining to the works contract is exempted from payment of tax in view of Section 3-F(2)(b) of the Act read with Section 3 of the Central Sales Tax Act, 1956. 2. Whether the learned Tribunal was justified in levying tax on road marking plastic powder used in the marking of central line on the National Highways/Roads as Paint being an unclassified items, since it is a pigment and used in the execution off works contract. 3. Whether the applicant is rightly subjected to tax in each assessment year despite the fact that the learned Tribunal for the years 2001-02 to 2005-06 have already decided the issue in favour of the applicant and even for the A.Y. 2001-02 the department's revision before the High Court was also dismissed vide order dated 13.10.2009 and the judgment/order of the Tribunal was confirmed."
(2.) Revisionist before this Court is engaged in the Trading of Hardware, and is additionally undertaking contract work for laying of marking lines on the highways by using thermo plastic powder. The process has been explained by the assessee contending that for road marking work thermo plastic powder and glass beads are imported, which are mixed in a hot plant, and is commonly referred to as thermo plastic road marking material, used for marking on the National Highways and other roads as per the specification and designs provided by the department concerned. The assessing officer proceeded to impose tax upon such goods primarily on the ground that road marking material is paint, and liable to be taxed as such. The material is specified in the assessment order as thermo plastic powder, and self-made paint (for road line marking). Contention of the assessee that road marking material is paint, was accepted. A passing observation is also made in the assessment order that details have been furnished as to what was the value of thermo plastic material obtained earlier, so as to co-relate it with its actual use in the works contract itself. This order has been maintained in first appeal and also by the Tribunal in second appeal. The Tribunal while rejecting the second appeal has recorded a finding that the assessee has been able to demonstrate that glass beads, thermo plastic, chemical compound etc. were used for the works contract, and that such materials are to be treated as an unclassified materials, in case it is treated as paint. The specific objection of the assessee that in respect of proceedings undertaken for previous years, such materials were treated to have been brought in for works contract, and therefore liable to be taxed, has however been accepted. Aggrieved by such order of the Tribunal, the assessee is before this Court.
(3.) Learned counsel for the revisionist submits that material was placed on record before the Tribunal to show that thermo plastic road marking material was imported for the purposes of works contract, and therefore, by virtue of Section 3-F(2)(b), it was liable to be exempted from payment of trade tax. It is also submitted that such material used in the previous years have rightly been exempted from imposition of tax, and a contrary view was impermissible on same facts in respect of same dealer. It is also pointed out that this Court has also affirmed the order passed by the Tribunal in favour of the assessee in respect of the assessment year 2001-2002, in Trade Tax Revision No. 266 of 2009. Learned counsel has also filed an affidavit stating that written arguments were filed before the Tribunal, in which copies of the works order, tender etc. had been annexed to show that import of material was for performance of work under the works contract. Finding of the Tribunal that revisionist has been able to connect the import of materials with performance of works contract is, therefore, challenged.;