JAIN MARBLE HOME Vs. SALES TAX TRIBUNAL

JUDGEMENT

(1.) These are cross petitions under Article 226 of the Constitution of India challenging an order dated 9th February, 1989 passed by the Sales Tax Tribunal, Lucknow on an appeal filed by the Petitioner in writ petition No. 442 of 1989, M/s. Jain Marble Home, against an order passed by the Commissioner of Sales Tax on a petition moved by it under Section 35 of the U.P. Sales Tax Act, 1948 (hereinafter referred to as 'the Act').

(2.) I have heard Sri Bharatji Agarwal. learned Counsel for the dealer and Sri R. D. Gupta, learned standing counsel for the State.

(3.) The dealer M/s. Jain Marble Home is a registered dealer under the Act. Its case as that it carried on the business of purchase and sale of all kinds of stone in all shapes and sizes which are used for construction and furnishing of the buildings. It has been realising tax at the rate of 6 per cent on the sale of all such stone and has been regularly depositing the same with the sales tax department. The Petitioner moved an application under Section 35 of the Act before the Commissioner of Sales Tax, Lucknow for deciding the question regarding the rate of tax on the marble stone and marble pieces, etc. By an order dated 14.7.1988, the Commissioner held that the marble slab and marble pieces are unclassified goods taxable at the rate of 8 per cent. He further held that stone, other than marble stone which are sold after cutting it into different pieces, is taxable at the rate of 6 per cent under Notification No. 5785 dated 7.9.1981 and polished tiles shall be taxable at the rate of 12 per cent. Against the order passed by the Commissioner, the dealer filed an appeal under Section 10 before the Sales Tax Tribunal. The Tribunal partly allowed the appeal and held that the marble slabs and pieces of marble would be taxable at the rate of 6 per cent under Notification No. 5785 dated 7.9.1981. It further held that pieces of marble which are known as marble tiles are taxable at the rate of 12 per cent. Aggrieved against the order of the Tribunal, the dealer has filed writ petition No. 442 of 1989. Its contention is that marble is a kind of stone and broken pieces of marble, marble slabs and marble tiles are all covered under entry No. 40 of the Notification No. 5785 dated 7.9.1981 which refers to stone and articles of stone except of glazed stone for which the rate of tax prescribed is 6 per cent.