COMMISSIONER, SALES TAX Vs. HEERA LAL RAMESH CHANDRA

JUDGEMENT

(1.) Present revision under Section 11 of U.P. Sales Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 4th May, 1993 for the assessment year 1985-86.

(2.) The dispute relates to the levy of tax on the turn over of chiraunji worth Rs. 12,25,726/- for the period 01.10.1985 to 31.03.1985. Assessing authority had taxed the aforesaid turn over of chiraunji @ 10% treating it as dry fruit while dealer/opposite party (hereinafter referred to as "Dealer") claimed that it was not dry fruit and liable to tax as an unclassified item @ 8%. In first appeal claim of the dealer was accepted. Commissioner of Trade Tax filed appeal before the Tribunal, which has been dismissed. Tribunal following the decision of the Full Bench of the Sales Tax Tribunal in the case of Heera Lal Mahesh Chandra v. CST reported in 91 STD (T), 51 held that chiraunji is not a dry fruit and is taxable as an unclassified item @ 8%. Thus, the dispute is, whether Full Bench of the Tribunal in the case of Heera Lal Mahesh Chandra v. CST (Supra) has correctly held that chiraunji is not a dry fruit. It has been held that it is liable to tax as spices and condiments for the period prior to 01.06.1985 and as an unclassified item after 01.06.1985. The period involved in the present revision is 01.10.1985 to 31.03.1985. Therefore, this Court is confining its decision to the question whether chiraunji is liable to tax as dry fruit or liable to tax as an unclassified item, leaving the question open as to whether chiraunji is spices or condiments. Full Bench of the Tribunal has held as follows:

(3.) Learned Standing Counsel submitted that chiraunji is normally considered as one of the item of the Panchmeva and, therefore, in common parlance it is known as dry fruit. He submitted that chiraunji is normally not eaten as such, is being mainly used in sweets, kheer etc. to give flavour. Learned Counsel for the dealer submitted that it is a inside portion of seed of flower and is not commonly used as dry fruit. He submitted that the finding of the Full Bench of the Tribunal that it is not known as dry fruit in common parlance is finding of fact and can not be interfered with in the absence of any material to the contrary. He submitted that while classifying a commodity, how a commodity is commonly known in common parlance is to be considered. In support of his contention he relied upon on the several decisions.