A. K. MATHUR, J. - (1.) ALL these revision petitions involve a common question of law, therefore, they are disposed of by this common order. In all these revision petitions, the question raised is whether hoofs and horn meal is a chemical fertilizer or not ? The assessing authority on the basis of the circular issued by the Commissioner, Commercial Taxes, dated 23rd June, 1972 taxed them to be a chemical fertilizer.
(2.) AGGRIEVED against these assessment orders, appeals were preferred before the appellate authority and the appellate authority dismissed the appeals. Assessee approached the Tribunal. The Tribunal after considering over the matter and looking into the evidence, came to the conclusion that both these items, namely, hoofs and horn meal do not fall in the definition of the chemical fertilizer. It came to the conclusion that it is an organic manure. Department did not produce any evidence whatsoever for showing that both these items have any element of chemical composition in it. Mr. Bhansali, learned counsel for the department, submitted that D. B. Civil Writ Petition No. 27 of 1985 has been filed by the same party and the same is pending before this Court in which a similar question has been raised. Therefore, these matters be tagged with the aforesaid writ petition. Mr. Kothari, learned counsel for the respondent-assessee, submitted that it is true that a writ petition is pending but in that writ petition, the primary question is that whether the circular issued by the Commissioner, Commercial Taxes, is within his jurisdiction or not. Therefore, the learned counsel submits that this question has to be examined in these revision petitions only as a finding has been given by the Tribunal on this question. Learned counsel submits that the finding of fact given by the Tribunal is based on cogent evidence and there is no justification to disturb that finding of fact recorded by the Tribunal. I think the submission of Mr. Kothari appears to be justified. In the present case a finding of fact has been recorded by the Tribunal on the basis of evidence available on the record. In the writ petition only an abstract question has been raised, whether the finding of the Tribunal is correct or not. Learned counsel for the department only rest contended by showing a circular of the Commissioner of the year 1972, but that circular alone will not be of any help for coming to the conclusion whether the hoofs and horn meals fall in the definition of chemical fertilizer or not. It was open for the department to have agitated this matter while leading a definite evidence to this effect that there was a chemical composition. But in view of the fact that the department has failed to produce any evidence, I think, there is no reason to disturb the finding of fact arrived at by the Tribunal.
(3.) THE next question which arises is whether the Tribunal has rightly found that the hoofs and horn meals fall in the definition of chemical fertilizer or not. THE learned Member of the Tribunal, after referring to the meaning of the word "chemical" as given in the order dated 4th March, 1987 (annexure 3) and on the basis of the Fertilizer (Control) Order, 1957 issued by the Government of India and on the basis of the Export Statistics, Volume II, No. VIII, issued by the Chemicals and Allied Products Export Promotion Council, World Trade Centre, Calcutta, and the certificate of the Analysis issued by the District Agriculture Officer, Jodhpur, and few more authoritative material came to the conclusion that both these items, namely, the hoofs and horn meals, do not fall in the category of chemical fertilizer. But unfortunately, learned counsel for the department did not rebut these evidence nor did they produce anything to show that both these items have any chemical component in it. Since, the Tribunal, after taking into consideration the relevant factors, has come to the conclusion that both the items, i. e. , hoofs and horn meals, do not fall within the definition of chemical fertilizer, there is no justification for taking a different view in the matter. ;