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TMI Blog1975 (12) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... and not at the general rate of 5 per cent according to section 5(1) of the Orissa Sales Tax Act?" 2.. The assessee, a registered dealer under the Act, carried on business in bullion, gold and silver ornaments and silver articles. For the period 1970-71, the Sales Tax Officer rejected the accounts of the assessee, enhanced the turnover and overruled the contention of the assessee that the turnover was liable to tax at the rate of 5 per cent and adopted the rate of 7 per cent. The assessee's first appeal was dismissed by the Assistant Commissioner. The Tribunal in second appeal also affirmed the order of assessment. The question arising in the case was highlighted by the Tribunal by saying: "There is no dispute about the correctness of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceeding 7 per cent or any lower rate of tax payable under this Act on account of the sale or purchase of any goods or class of goods specified in such notification..............." In exercise of the powers conferred under the proviso, the State Government made a notification bearing No. 33927-F. dated 30th December, 1957, with effect from 1st January, 1958. Relevant portion thereof is extracted below: "In exercise of the powers conferred by the first proviso to subsection (1) of section 5 of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947), as amended by the Orissa Sales Tax (Amendment) Act (20 of 1957), and in supersession of all previous notifications on the subject, the State Government do hereby fix, with effect from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof. 27. All articles and wares made of gold and silver Seven per cent. or of species (other than those falling under serial No. 3-F). 28. Deleted by Notification No. 6839-F. dated 4th March, 1966, with effect from 1st April, 1966, and inserted in luxury goods. 29. Imitation of gold or silver ornaments. Seven per cent." By notification dated 27th April, 1970, with effect from 15th May, 1970, the entry under serial No. 1 was omitted. Simultaneously the words "other than those falling under serial No. 3-F" appearing in column (2) against serial No. 27 was also deleted. According to the taxing department, with the omission of the first serial which had hitherto prescribed a rate of two per cent in respect of bullion and species, orn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher rate of tax, a further notification was necessary and, in the absence of such a notification to be made in exercise of the powers under the proviso to sub-section (1) of section 5, demand of tax at the higher rate of seven per cent on the basis of serial No. 27 is not justified. For the period between 15th November, 1958, and 31st March, 1966, serial Nos. 1 and 3-F existed together in the notification. The rate of tax for the goods under serial No. 1 was one per cent and ornaments of personal wear covered by serial No. 3-F was two per cent. As already noticed, in serial No. 27, the words "other than those falling under serial No. 3-F" had been inserted with effect from 15th November, 1958. It is, therefore, clear that when serial Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under serial No. 27. The learned standing counsel contends that this mistake has been noticed and, therefore, from 15th May, 1970, serial No. 1 has been deleted. Now serial No. 27 is the only entry in the field with effect from 15th May, 1970. The goods in question have been found to come within the ambit of serial No. 27. Admittedly, the goods which have been taxed are articles of gold, silver or of species. Serial No. 27 covers these articles. We do not think, in these circumstances, there is force in the assessee's contention that with the deletion of serial No. 1, for the goods covered by that serial the general rate would apply and the taxing department is not entitled to fall upon serial No. 27 to tax the goods at a higher rate, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the situation and, therefore, he computed tax by adopting the rate prescribed under serial No. 27 and imposed tax. 7.. A number of authorities were cited by Mr. Bhattacharya, but we have not found it necessary to refer to them as, in our view, the dispute could be disposed of by a plain analysis of the matter without reference to precedent. 8.. Our answer to the question referred, therefore, is: On the facts and in the circumstances of the case, the Member, Sales Tax Tribunal, is right in holding that gold and silver ornaments are taxable at the rate of 7 per cent under serial No. 27 of the list of taxable goods, with effect from 15th May, 1970. 9.. This case was heard along with several connected matters. We were surprised to f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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