GADRE INDUSTRIES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this reference under section 61(1) of the Bombay Sales Tax Act, 1959 made at the instance of the assessee, the Maharashtra Sales Tax Tribunal has referred the following question of law to this Court for opinion :

(2.) The assessee, M/s. Gadre Industries, is a partnership firm engaged in the business of manufacture of diesel engine pumping sets. The diesel engines required for the purpose are manufactured by the assessee itself and the pumps are purchased from registered dealers. Thereafter, the two are coupled and diesel engine pumping sets are manufactured and sold. On January 12, 1982, the assessee filed an application under section 52(1)(e) of the Bombay Sales Tax Act ("the Act") before the Commissioner of Sales Tax, Maharashtra State, Bombay, seeking determination of the question whether the diesel engine pumping sets sold by the assessee which were described by it as "Cadre 5 hp R.P.M. vertical diesel oil engine 3" x 2 1/2" centrifugal pump with M.S. base frame", were covered by entry 18(i) of Part I of Schedule "C" to the Act. According to the assessee, the above diesel engine pumping sets were designed by it for use in agricultural purposes and were, in fact, used by the purchasers predominantly for agricultural purposes, viz., watering the fields. In support of this contention, a copy of the sale invoice under which the diesel engine pumping set was sold was filed before the Commissioner. The assessee also filed a certificate from the customer in regard to its user for agricultural purposes. In addition, the assessee filed affidavits from two persons dealing with such goods wherein it was stated that "pumps" and "pumping sets" were commercially different commodities. On the basis of the above material, it was contended by the assessee that the diesel pumping sets sold by him were agricultural machinery falling under entry 18(i) of Part I of Schedule C. The Commissioner was not satisfied with the above contentions of the assessee. He therefore, rejected the same and, by his order dated October 12, 1982, passed under section 52(1)(e) of the Act, held that the diesel engine pumping sets, sold by the assessee were not covered by entry 18(i) of Part I of Schedule "C" to the Act. Aggrieved by the above order of the Commissioner, the assessee appealed to the Maharashtra Sales Tax Tribunal ("the Tribunal"). The Tribunal held that though the diesel oil pumping sets sold by the assessee were agricultural machinery, they did not fall under entry 18(i) of Part I of Schedule C because the "pumping sets" were nothing but "pumps" which were excluded from the purview of the said entry. Hence, this reference at the instance of the assessee.

(3.) We have heard the learned counsel for the parties. There appears to be no dispute about the fact that the diesel engine pumping set sold by the assessee is agricultural machinery. The only controversy is whether it is "pump" which has been excluded from the definition of "agricultural machinery" under entry 18(i) of Part I of Schedule C to the Act. To appreciate the same, it is necessary to peruse the relevant entry, viz., entry 18(i). Part I, of Schedule C, which at the material time, read as follows :