Prakash Krishna, J. - (1.) THE present revision is directed against the order dated March 13, 2000 passed by the Trade Tax Tribunal, Moradabad in Second Appeal No. 523 of 1999 relevant to the assessment year 1995 -96.
(2.) THE dealer -opposite party carries on the business of air -conditioners, its accessories and component part of air -conditioners. The dealer -opposite party admitted the tax liability on mefron gas at the rate of ten per cent. The assessment order was framed accordingly on January 6, 1998. Subsequent thereto, the assessing officer initiated proceeding under Section 22 of the U.P. Trade Tax Act, 1948 on the ground that the said commodity is liable to be taxed at the rate of 15 per cent. In other words, the assessing authority was of the view that the commodity in question is not liable to be taxed at the rate of ten per cent. The assessing officer rectified the mistake by passing the order dated March 31, 1999 under Section 22 of the Act levying tax on the said commodity at the rate of 15 per cent, The said order was challenged successfully before the first appellate authority in First Appeal No. 169 of 1999. The appellate authority was of the view that mefron gas sold by the dealer -opposite party is chloro -flouro hydrocarbon as is being used in refrigerations and air -conditioners. The said gas is also used in the manufacture of perfume and it is liable to be taxed as chemicals. The order of the first appellate authority has been confirmed by the Tribunal by the order under revision. In the memo of revision, the following question of law has been sought to be raised: (i) Whether Trade Tax Tribunal was legally justified in deciding the tax liability of mefron gas without taking into consideration use of the product and to whom it has been sold out? Heard the learned Counsel for the parties and perused the record.
(3.) THE Tribunal has held as follows: ... Looking into the entire circumstances of this case and the orders passed by the both the authorities below, I am of this view that there is no substance in the aforesaid appeal because the first appellate authority has held the mefron gas to be chloro -flouro hydrocarbon. The honourable High Court of judicature at Delhi has endorsed the finding of the Tribunal that chloro -flouro hydrocarbon is covered under the entry of "chemical". In such circumstances the mefron gas could not be covered under Notification No. 5764 dated September 7, 1981 as is contended on behalf of Revenue. That mefron gas is not chloro -flouro hydrocarbon is nowhere mentioned either in the assessment order and no material or any other literature has been placed before me to show that mefron gas and chloro -flouro hydrocarbon as different substances. Moreso, in his assessment order (he assessing officer himself indirectly admitted that even if mefron gas is admitted to be chloro -flouro hydrocarbon, it has to be taxed at 15 per cent being an accessory of refrigeration and air -conditioners. This much finding of the assessing officer is not perfect in law as chloro -flouro hydrocarbon has been held to be a chemical. In my view it should be covered under the head of all kinds of chemicals to be taxed at 10 per cent. I find no substance in the aforesaid appeal, and there is no irregularity or any illegality in the order passed by the first appellate authority, The aforesaid appeal deserves to be rejected.;