9911796707
TMI Blog1986 (1) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... il was being treated as "oils of all kinds" hence the respondent-assessee had been charging U.P. sales tax at the rate of 3 per cent plus additional surcharge at the rate of 1 per cent. In the meantime Notification No. S. T.-2-5784/X-10(1)-80 dated September 7, 1981 was issued in which item No. 46 of the Schedule reads as under: "46. Paints and varnishes of all kinds and all materials used in painting or varnishing, including distempers, cement colours or paints, powder paints, stiff paste paints, enamels and liquid paints, whether ready for use or not, french polish, vegetable turpentines, paint removers and stainers of all kinds, and all kinds of vehicle diluents and thinners (including natural and synthetic drying and semi-drying oils s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grieved against the said opinion of the Commissioner of Sales Tax, U.P., preferred an appeal under section 10 of the Act before the Sales Tax Tribunal, U.P., Lucknow, and the three members' Bench of the Tribunal by a majority of two members allowed the appeal by an order dated September 30/ October 23, 1982, and held that 85 per cent of vegetable turpentine oil, which was sold by the respondent-assessee to M/s. Camphor and Allied Products Limited, Bareilly, would be exigible to tax at the rate of 4 per cent. Being aggrieved against the aforesaid order of the Tribunal the Commissioner of Sales Tax has come to this Court in the instant revision. The respondent-assessee has filed an application under section 151, C.P.C., in this case disputin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge of the order of the Tribunal. In the rejoinder affidavit filed by Jagdamba Prasad Shukla, a senior clerk in the office of the Commissioner of Sales Tax, U.P., Lucknow, it has been averred that the copy of the order of the Tribunal was served upon the Commissioner of Sales Tax on March 26, 1985. In support of the averment a photostat copy of the letter dated March 26, 1985, from the Tribunal addressed to the Commissioner, Sales Tax, U.P., Lucknow has been filed as annexure 1 to the rejoinder affidavit. It has also been averred in the rejoinder affidavit that mere knowledge of the order of the Tribunal does not constitute proper and valid service within the meaning of rule 68(7) of the U.P. Sales Tax Rules. The despatch register was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds and taxed at the rate of 4 per cent. On the basis of the aforesaid undisputed facts it has been urged on behalf of the assessee that since the vegetable turpentine oil is being used as raw material for manufacture of camphor it should be taxed under entry "oils of all kinds" and since it is not used in paints and varnishes it should not be taxed at the rate of 10 per cent. In Bishambar Dayal Shri Niwas v. Commissioner of Sales Tax, Uttar Pradesh [1963] 14 STC 184 (All.), which has been relied upon by the Tribunal, the question before a Division Bench of this Court was how an article which comes within two categories to which different rates are applied, is to be classified. This Court after considering the matter in detail held: "Havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g camphor or it is also used in paints and varnishes. He candidly replied that vegetable turpentine is used in paints and varnishes also but his contention is that since it is being used in paints and varnishes and also as a raw material for manufacture of camphor and the vendor, M/s. Camphor and Allied Products Limited, Bareilly, is treating it as an oil, the sale made by the respondent-assessee to the aforesaid vendor should be treated as "oils of all kinds" and not as a material used for painting and varnishing. In support of his contention learned counsel for the respondent-assessee placed reliance on a Division Bench decision of this Court in Industrial Gases Limited v. Commissioner, Sales Tax, U.P., Lucknow [1968] 21 STC 124 (All.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be classified as a cattle fodder, it is not possible to take the view that it would go outside the purview of cattle fodder only on account of the special use to which it was put by some consumers". In the instant case the facts are entirely different. The Revenue has not disputed the fact that 85 per cent of the vegetable turpentine oil manufactured by the assessee is sold to M/s. Camphor and Allied Products Limited which used the same as raw material for manufacturing camphor and the contention of the assessee is that this 85 per cent of the sale turnover made by the assessee has to be taxed as "oils of all kinds". From the foregoing discussion it is clear that even if a commodity is used for two different purposes, it is the use ..... X X X X Extracts X X X X X X X X Extracts X X X X
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