RAJ NARAIN TIWARI Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) The assessee entered into a contract with the Executive Engineer, Irrigation Department, Ballia, for supplying 1st class overburnt bricks called jhawan for the construction of Ballia-Baria Bandh near village Gaighat, District Ballia. He supplied jhawan to the tune of Rs. 2,17,970. When the Sales Tax Officer came to know of this transaction, he reopened the assessment for the year 1969-70 under section 21 of the U. P. Sales Tax Act. The assessee accepted the supply as well as the money that was received for it, but he urged that jhawan was only a variety of bricks, and since the assessee was neither a manufacturer or importer he was not liable to tax on its turnover. The Sales Tax Officer repelled this submission. He held that the goods were unclassified goods taxable at 3 per cent. On appeal the findings were affirmed but it was held that the turnover was taxable at 2 per cent. The Judge (Revisions) found that, as stated by the assessee, jhawan could not be utilised either for building purposes or road purposes, that jhawan was not sold in numbers but according to cubic feet, and that in 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 evident that jhawan was usable for construction of bandh, i. e. , dams. This was also a kind of construction work like constructing a residential or commercial building, though the method of construction may be different. The specifications and special condition for the supply of jhawan stated : " Specifications and special condition for supply of overburnt bricks (jhawan bricks) is mile 11-0 to mile 12-0 of Ballia-Baria Bandh near village Gaighat, District Ballia. " This will show that the contract was for supply of overburnt bricks whose vernacular translation was jhawan bricks. Both the parties therefore referred to the commodity as bricks. This further clear from the first condition in the contract which runs as follows : " Jhawan bricks consist of overburnt bricks of standard size and jointed of two or more bricks making a block bigger than a single brick as approved by the Engineer Incharge. Only 1st class overburnt bricks shall be measured as jhawan bricks. " It is evident that the contract for supply was of 1st class overburnt bricks. It was to be of a particular size, viz. , a size larger than that of a single brick. It was to be of standard size as approved by the Engineer Incharge. It is clear that the goods which were supplied by the assessee, and in relation to which alone the question referred to us arises, was of bricks of a specified variety. We are in the present case not concerned with what popularly or in common parlance may be called jhawan bricks. In this view, the fact that in common parlance or in ordinary commercial sense jhawan is treated as something different than bricks will not be material. The goods in question, viz. , those supplied by the assessee and the turnover of which supply alone was being assessed was of a variety of bricks, the specifications of which were detailed in the contract. On the materials on record it is evident that the material supplied by the assessee was brick, though of an overburnt variety. We would answer the first question by saying that bricks and overburnt bricks in question are one and the same commodity. In respect of the second question it is admitted that the assessee was neither manufacturer nor importer of the jhawan bricks. He was hence protected under section 3-A of the U. P. Sales Tax Act. The second question is answered in the affirmative and in favour of the assessee and against the department. The assessee is entitled to costs which we assess at Rs. 100. .