COMMISSIONER OF SALES TAX U P LUCKNOW COMMISSIONER OF SALES TAX U P LUCKNOW Vs. SUPER COTTON BOWL REFILLING WORKS:AGRA BEVERAGES CORPORATION P LTD

JUDGEMENT

(1.) Special leave granted and these appeals are disposed of by the judgment herein.

(2.) These appeals are from the judgments and orders of the High Court of Allababad dated 4th February, 1987 and March 26,1987 respectively. These involve a common question. The facts of the appeal arising out of Special leave Petition No. 1293 of 1988 and the facts of the appeal arising out of Special Leave Petition No. 1296 of 1988 are similar. In order to appreciate the contentions raised herein, it would be appropriate to deal with the facts of the appeal arising out of Special leave petition No. 1293 of 1988. The assessee is engaged in repairing and refilling of cotton bowls on the shafts which are used as part of calendering machine in the textile industry. The cotton bowl is a shaft made of steel on which a thick layer of cotton is pasted and affixed. It is used in the textile finishing industries as an essential part of calendering machine. In the course of its use the cotton pasted on the shaft loses its thickness and shape and after some time it requires repairing and refilling. The assessee in this case moved an application under section 35 of the U.P. Sales-tax Act, 1948 (hereinafter called 'the Act'). It may be mentioned that Section 35 was added by the U.P. Sales Tax (Amendment and Validation) Act No. 23 of 1976. Section 35 of the said Act has been amended by Section 31 of the U.P. Act 12 of 1979. Section 35 provides for determination of disputed questions by moving an application before the Commissioner of Sales-tax. The relevant part of the said section as it stood at the relevant time was as follows:

(3.) The question that arises in these appeals before us is the true interpretation of sub-sec. (5) of S. 35 of the Act, namely, whether a revision shall lie to the High Court from the decision of the Commissioner under S. 35 of the Act which has been the subject-matter of an appeal before the Tribunal. The respondent dealer moved an application under Sec. 35 of the Act and the decision was rendered in terms of the said section. The decision, inter alia, included the questions whether the job of repairing and refilling of cotton bowl and the process involved therein amounted to "manufacture" or "sale" within the meaning of the Act. The Commissioner of Sales-tax by his order dated 10th June, 1985 decided both the questions against the assessee. Aggrieved thereby the assessee had preferred an appeal before the Sales-tax Tribunal. The Tribunal by its order dated 14th November, 1985 allowed the appeal in part. The Tribunal held that the process of repairing and refilling of cotton bowls of the customers did not amount to "manufacture" as defined under section 2(e-1) of the Act. It further -held that such an activity of the assessee amounted to "sale" as defined under section 2(h) of the Act as amended by the U.P. Sales-tax Amendment and Validation Act, 1985. It is against this decision of the Sales-tax Tribunal that the Commissioner of Sales Tax had preferred revision to the High Court. The High Court went into the question whether further revision lay to the High Court. The High Court noticed the terms of S. 35 noted hereinbefore which provided by subsec. (5) of sec. 35 that a decision given by the Commissioner of Sales-tax under that section, subject to an appeal to the Tribunal shall be final, (Emphasis supplied). The High Court examined the question whether further revision lay and answered it in the negative. Therefore, we were concerned in these appeals with the question whether at the relevant time in terms of section 35 of the Act any further revision lay to the High Court from the decision of the Commissioner which has been the subject-matter of appeal before the Tribunal. The High Court came to the conclusion that having regard to the scheme of the provisions and the amendment made by the U.P. Act 12 of 1979 and in view of the decision of the Division Bench of the High Court in Indo Lube Refineries v. Sales Tax Officer, Sector-I, Gorakhpur (1987) 66 STC 145 (All) no further revision lay to the High Court from the order of the Tribunal. In that view of the matter, the High Court dismissed the revision. Aggrieved thereby, the Commissioner has come up in appeal before this Court in these two appeals.