COMMISSIONER SALES TAX Vs. KOHINOOR INDIA PVT LTD

JUDGEMENT

(1.) The following question of law was referred for the opinion of this Court under Section 11 of the U.P. Sales Tax Act, as it stood before its amendment: Whether, in the facts and circumstances of the case, windscreen wipers and oil gauge manufactured and sold by the assessee and utilised in diesel locomotive were spare parts of machinery liable to be taxed at the rate of 6 per cent under Notification No. ST-7098/X -1012- 1965 dated 1st October, 1965?

(2.) As the law has been amended, this reference is being decided as revision. The facts in brief are as follows: The assessee manufactured and sold various articles used in machinery in the assessment years 1970-71, 1971-72 and 1972-73. The dispute in this revision is in respect of windscreen wipers and oil gauges supplied to Diesel Locomotive Works, Varanasi. It was claimed by the department that they are taxable as spare parts of machinery whereas the assessee claimed its taxability as unclassified item. The windscreen wiper is used to remove the rain-water or water falling on the windscreen of the automobile whereas oil gauge is used to measure the level of oil. The relevant notification read as under: In exercise of the powers under Section 3-A of the U.P. Sales Tax Act, 1948 (U.P. Act No. 15 of 1948), the Governor of Uttar Pradesh is pleased to declare that with effect from October 1, 1965, the turnover in respect of machinery and spare parts of machinery not being such machinery or spare parts thereof as are taxable under, any other notification issued under the aforesaid section, shall not be liable to tax except.

(3.) The question is whether these items can be considered to be spare parts of machinery. According to the learned counsel for the assessee, a spare part of a machinery is an integral part without which the machinery cannot work. It was submitted that windscreen wiper or oil gauge were not integral parts of machinery and were used to make running of the automobile convenient and smooth only. They could not therefore be considered to be spare parts. The learned counsel produced a wiper to demonstrate that unless force is generated in it through a knob which rotates, it cannot function by itself. Reliance in this connection was placed on Commissioner of Sales Tax v. Amar Radio Cabinet Works [1968] 22 S.T.C. 63, Sujan Singh v. Appellate Assistant Commissioner, Sales Tax [1969] 24 S.T.C. 504, and Vithal Chhagan & Sons v. State of Gujarat [1966] 17 S.T.C. 96. The dictionary meaning of the spare parts was also placed as a part of the argument. On the other hand, the learned standing counsel argued that no factual foundation has been laid and therefore these controversies cannot be raised for the first time in revision. According to him, the scope of revision under Section 11 is the same as that of reference under Section 11(4). Reliance has been placed on Engineering Traders v. State of Uttar Pradesh 1973 U.P.T.C. 91 (F.B.).and Shyam Enamel Works v. Commissioner of Sales Tax 1974 U.P.T.C. 586.