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TMI Blog1983 (10) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... case is whether the brick tiles manufactured by the assessee fall within entry 13 or 96 of Notification No. ST-11-332/X-1012-1971 dated 15th November, 1971. Entry 13 is "bricks" while entry 96 runs as follows: "Tiles of all kinds." The learned Additional Chief Standing Counsel appearing on behalf of the Commissioner placed reliance on a decision given by me in the case of Commissioner of Sales Tax v. R.C. Gupta Company printed at page 262 infra; 1982 UPTC 1172. In that case the assessee had supplied brick tiles for Sharda Sahayak Pariyojana. The question in that case was whether the turnover of brick tiles of the assessee should be taxed on the basis what he had sold was brick or that he had sold brick tiles. This Court after noticing that process of manufacture of brick and brick tiles was the same, nevertheless held that the commodity sold by the assessee came under the category of tiles of all kinds. The learned counsel for the assessee, Sri Bharatji Agarwal, has argued that the brick tiles sold by the assessee are only a variety of bricks. In this connection he referred to a decision of a Division Bench of this Court in the case of Raj Narain Tiwari v. Commissioner, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icals." What the Bench said was that while making separate category of washing material the State itself was excepting such materials out of general entry of "chemicals of all kinds". This decision is of no assistance in resolving the question posed in the present case. The learned counsel for the assessee argued that if the material sold by the assessee comes under both the notifications, then that notification should be applied to the assessee under which the tax is lower. In this connection he relied upon a decision of a learned single Judge of this Court in the case of Shakti Lace Factory v. Commissioner, Sales Tax (printed at page 261 infra) 1982 UPTC 814. In that judgment it was observed in paragraph 3 that; "It is also essential to mention that if an item is covered under two notifications then it is the notification which is more beneficial to the assessee which should be applied. The principle applies with greater rigour in case where an item is covered by two notifications, the one exempting it from payment of tax and the other levying tax on it. If an item is covered by notification issued under section 4 of the Act then notwithstanding that it may be covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck tiles or tiles made of the same material and in the same manner as bricks. I, therefore, cannot hold that the brick tiles manufactured by the assessee fall under both entry No. 13 and entry No. 96. If my conclusions had been that brick tiles could come under both entries, I would have certainly held that the assessee should be taxed under entry No. 13. The last argument urged by the learned counsel for the assessee is that the Tribunal has recorded a finding that in commercial circle such brick tiles are neither sold nor used as tiles, and therefore, this Court is bound in revision to accept this finding and determine this case on that basis. As I have pointed out earlier in the contract entered into by the assessee with the authorities, bricks had been separately mentioned and brick tiles had been separately specified as items to be supplied by the assessee. The assessee and the department both had treated the brick tiles as different from bricks otherwise it could have been said that bricks of two different qualities or two different dimensions would be supplied by the assessee to the department. The finding of the Tribunal that "in this regard it is also not in dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commercial and ordinary parlance jhawan is treated as something different from brick like rora or gitti. A purchaser going to purchase jhawan shall not get jhawan if he asked for bricks. It was held that jhawan and brick were different commodities. At the instance of the assessee, the revising authority referred the following law points for the opinion of this Court: (i) Whether bricks and overburnt bricks are one and the same commodity? (ii) Whether, if overburnt bricks are termed as a kind of brick, is the applicant protected under section 3-A of the U.P. Sales Tax Act? The statement in the revisional order that the assessee stated that jhawan could not be utilised either for building purposes or road purposes does not appear to be correct. The assessee in his statement stated that jhawan was not usable for road or for houses. This could at best have meant that jhawan was not meant for use in making roads or construction of houses. The fact that jhawan could be utilised for building purposes is evident from the contract under which the supply was made by the assessee. The contract was for supply of bricks and jhawan for the construction of Ballia-Baria Bandh. It is evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. The assessee is entitled to costs which we assess at Rs. 100. Appendix II [The judgment of R.M. SAHAI, J., of the Allahabad High Court in Shakti Lace Factory v. Commissioner of Sales Tax (S.T.R. No. 262 of 1982 decided on 28th May, 1982) is printed below: ] SHAKTI LACE FACTORY V. COMMISSIONER OF SALES TAX SAHAI, J.-By way of this revision the assessee challenges the correctness of the view taken by the Sales Tax Tribunal, Allahabad, and claims that the Tribunal having come to the conclusion that the case of assessee was covered under notification issued under section 4 of the U.P. Sales Tax Act, committed an error in not declaring the assessee non-taxable on the turnover of cotton labels, only, because in the case of the assessee for earlier year it had been held liable to pay tax under Notification No. 333 dated 15th November, 1971. Circumstances in which the controversy has arisen appear to be that in the assessment year 1972-73 the assessing authority treated cotton labels manufactured by the assessee as unclassified item and imposed tax on it. This view did not appeal to this Court and in Shakti Lace Factory v. Commissioner of Sales Tax 1980 ATJ 259 it was hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em is covered by two notifications, the one exempting it from payment of tax and the other levying tax on it. If an item is covered by notification issued under section 4 of Act then notwithstanding that it may be covered by other notification issued the taxability or otherwise has to be determined with reference to section 4. The learned counsel for assessee argued on the strength of two Supreme Court's decisions in Porritts and Spencer v. State of Haryana [1978] 42 STC 433 (SC) and Delhi Cloth General Mills Co. Ltd. v. State of Rajasthan [1980] 46 STC 256 (SC) that cotton labels was nothing but cotton fabric. Reliance was also placed on observation made by brother Rastogi, J., in the earlier decision of this very assessee. It is, however, not necessary to decide it as prima facie the Tribunal appears to have been inclined to have the same view. The controversy shall be decided when the matter is taken up by the Tribunal under section 11(8) of the U.P. Sales Tax Act. In the result this revision succeeds and is allowed. The order passed by the Tribunal is set aside. The question of law raised by the Commissioner of Sales Tax is decided by saying that in a case where there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " are described as follows: "Tile, thin, flat, slab or block used structurally or decroratively in building. Traditionally tiles have been made of glazed or unglazed fire clay, but modern tiles are also made of plastic, glass asphalt, or asbestos cement, acoustical tiles are manufactured from fibreboard or other sound absorbing materials. Glass blocks are used in partitions. Hollow, ceramic glazed structural tile is used for partitions in public buildings." Encyclopaedia goes on to add: "Modern ceramic roofing tile, similar to brick, is substantially the same as the classic ancient form; improvements have been made only in manufacturing method, not in design." So I find that the clay is a common material to both the bricks and the tiles. The process of manufacture are similar. What the assessee manufactured was made in the same way as bricks are made. However, it was described as brick tiles in the contract. The commodity manufactured by the assessee was different in size from the normal bricks that are manufactured. In building trades, it is known as a brick tile. It will certainly come within the meaning of "tiles of all kinds" mentioned in the notification. In the resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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