VINEET KOTHARI, J. - (1.) THE question that arises for consideration by this Court in the present revision petitions filed by the Revenue is as to whether vulcanising solution used by the respondent -assessee in tyre retreading work is a synthetic adhesive taxable at the rate of 16 per cent or at general rate of 10 per cent which was charged and paid by the respondent -assessee.
(2.) THE assessing authority imposed difference tax of six per cent on the sale value of such vulcanising solution holding the same to be taxable at the rate of 16 per cent purportedly under entry No. 91 of Notification, S. No. 713, S.O. No. 399 dated March 27, 1995 which entry reads as under: 91. Paints, pigments, enamels, cement based water colours, dry 16%' distempers, oil -based distempers, emulsion paints including acrylic and plastic emulsion paints, lacquers including cellulose lacquers, varnishes, all types of synthetic adheshes, all types of polish (other than boot -polish), turpentine oil, white oil, double boiled linseed oil, thinners, all kinds of paint removers and all kinds of wall papers. The Deputy Commissioner (Appeals), however, allowed the appeal of the assessee and held that the vulcanising solution is a rubber compound and is not a synthetic adhesive, therefore, 10 per cent sales tax charged under the general residuary entry No. 100 of notification dated March 27, 1995 by the respondent -assessee was appropriate and since the Tax Board in another case had already held it to be so taxable at general rate of 10 per cent the appeal of the assessee was allowed by the learned Deputy Commissioner (Appeals). The Revenue took the matter further before the Tax Board but lost there also and the Tax Board affirmed the rate of 10 per cent on the said commodity following its judgment in appeal by one M/s. Vikrant Tyres Ltd., and the Tax Board also relied upon a ruling given by the Commissioner of Sales Tax, Maharashtra State, Bombay in exercise of its powers for determination of disputed questions where the learned Commissioner held that the kwik solution was a rubber vulcanising cement which is required for chemical bounding of the patches of tyres and tubes. Being aggrieved by the said order of the Tax Board, the Revenue has come up in the present revision petitions for two different periods before this court.
(3.) MR . R.B. Mathur, learned Standing Counsel for the Revenue, urged that undoubtedly the vulcanising solution was used by the respondent -assessee for sticking together of two sheets of rubber for retreading of tyres and the compound of the vulcanising solution comprised of natural rubber, polymer, rubber compound and solvent and, therefore, it was nothing but synthetic adhesive used for sticking together of sheets of rubber and was, therefore, taxable at the rate of 16 per cent. He, therefore, assailed the orders passed by the two appellate authorities below and submitted that the revision petitions deserve to be allowed and the order of the assessing authority deserved to be restored. He submitted that it is well -settled that common parlance test is the acid test for interpreting the taxability of a particular commodity and how a particular commodity is understood in the trade parlance by the persons concerned with that particular trade or business is the relevant factor. Relying on certain judgments of the apex court for this well -settled proposition of law of applying the common parlance test, he urged for allowing the revision petitions.;