C. M. LODHA, C. J. - (1.) THESE are two connected applications under section 15 (2) (b) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as the Act ). The parties are the same, so also the points arising therein. Only the assessment periods are different. The period in case No. 42 of 1979 is from October 27, 1973, to November 13, 1974, and in case No. 43 of 1979 from November 8, 1972 to October 26, 1973.
(2.) THE assesse deals in 'neel' (ultramarine blue) and chamicals. THE assessee firm is a registered dealer under the Act. For the periods in question the assessing authority assessed the sale of 'neel' by the assessee to sales-tax at the rate of 12% by holding that it is a kind of pigment under item No. 18 of the rate notification dated March 9, 1970. Aggrieved by the assessing authority's order, the assessee filed appeals before the Deputy Commissioner (Appeals), Jodhpur, contending that 'neel' was not a pigment and, consequently, the sale thereof was not taxable at the rate of 12% but was taxable at the rate of 7% only under the residuary item. THE Deputy Commissioner by a common order dismissed both the appeals. THE assessee, then, filed revisions before the Board of Revenue for Rajasthan, which by a common order dated April 28,1978, allowed both the revisions and held that 'neel' was not a pigment and was, consequently, taxable at the rate of 7%. Dissatisfied with the order of the Board the Assessing Authority filed applications under section 15 (1) of the Act for stating a case and referring the question of law arising out of its order to this Court for decision. The application for making reference for the period November 8, 1972 to Oct. 26, 1973, (Case No. 43 of 1979) was dismissed on February 14, 1979 on the ground that the matter was academic and stood concluded by an earlier decision of the Board. For the period October 27, 1973 to November 13, 1974 (Case No. 42 of 1979) the learned Members while holding that 'neel' was a pigment, refused to refer the question of law to this Court on the ground that the application in another case had been rejected. We have heard learned counsel for the applicant ex-parte, as nobody has appeared on behalf of the assessee in spite of service of notice, and are of opinion that a question of law undoubtedly arises out of the revisional order of the Board. In this connection, it may be pointed out that a question of law cannot be said to have been finally settled unless there is a decision on the point either by this Court or the Supreme Court. An earlier decision of the Board cannot be taken to conclude the matter finally. It is remarkable that in case No. 42 of 1979 the Board has held on merits that 'neel' is a pigment but out of sheer difference for the view taken in the other case, the application for making reference has been refused. This was not correct. Accordingly, we allow both the applications, and direct the Board of Revenue to state the case and make a consolidated reference in both the cases on the following question: - Q. Whether in the facts and circumstances of the case, the Board of Revenue was justified in holding that 'neel' (ultramarine blue) is notcluded in in the term 'pigment' and is as such taxable at the general rate of 7%? There will be no order as to costs. The Board is directed to make the reference within three months of the receipt of this order. . ;