VIKRAM NATH, J. - (1.) THIS sales tax revision under Section 11 of the U.P. Sales Tax Act, 1948 (hereinafter referred to as, 'the Act') has been filed by M/s. M.R. Soap Private Limited, Lower Bazar, Modinagar, Ghaziabad (hereinafter referred to as, 'the dealer') assailing the judgment of the Sales Tax Tribunal, Bench -II, Ghaziabad, dated January 25, 1994 whereby the second appeal of the dealer was dismissed.
(2.) THE present revision arises out of the proceedings under Section 21 of the Act relating to assessment year 1986 -87. The dealer is a manufacturer of soap. With regard to the relevant assessment year it submitted its returns and the assessing authority vide order dated February 28, 1989 accepted the account books of the dealer and found that only an amount of Rs. 4,326 was due as tax. Subsequently proceedings under Section 22 of the Act for rectification of the assessment order were initiated on the ground that the rate of tax applied on the sales of imported 'spent bleaching earth' by the dealer was at a lower rate. It may also be noted that the proceedings under Section 22 of the Act had been initiated for both the years, i.e., assessment years 1985 -86 and 1986 -87. According to the assessing authority the rate should have been eight per cent whereas in the regular assessment the tax had been calculated at four per cent. The reason for this was that the 'spent bleaching earth' according to the dealer was a mineral and therefore, under the Notification No. 6075, dated October 1, 1983 it was covered by entry 'all kinds of minerals' and therefore taxable at four per cent whereas according to the assessing authority it had wrongly been taxed as mineral and in fact it should have been taxed as unclassified goods at eight per cent. The proceedings under Section 22 of the Act were ultimately quashed by the High Court on the ground that the assessment order passed by the assessing authority had merged into the appellate order passed in appeal filed by the dealer and therefore the assessing authority had no jurisdiction to initiate proceedings under Section 22 of the Act.
(3.) IT would be relevant to mention here that the notice under Section 22 of the Act had been issued on September 19, 1990. It is also not in issue that the notice under Section 22 of the Act was used for the same reason as for which the present proceedings under Section 21 of the Act had been initiated, i.e., for correcting the rate of tax applied on the sale of 'spent bleaching earth'. In the proceedings under Section 22 of the Act the dealer has participated and ultimately the High Court by order dated December 6, 1990 had held that the proceedings were without jurisdiction. It may be relevant to mention here that these proceedings under Section 22 which came to the High Court were in respect of the previous assessment year, i.e., 1985 -86, whereas the relevant assessment year 1986 -87. The assessing authority subsequently passed an order on February 16, 1991 that in view of the order passed by the High Court on December 6,1990 for the assessment year 1985 -86 the proceedings under Section 22 of the Act for the relevant assessment year be dropped.;