ORISSA CERAMIC INDUSTRIES Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE are references under section 24 (1) of the Orissa Sales Tax Act, 1947 (hereinafter called the "act"), at the instance of the assessee. The following questions of law have been REFERRED TO this Court for opinion :

(2.) THE material facts leading to these references briefly stated are as follows : The assessee, Orissa Ceramic Industries, Jharsuguda, manufactures stoneware pipes and fittings and fire-clay bricks. The assessing officer originally treated these items as unclassified goods and assessed tax at the rate of 5 per cent in a proceeding under section 12 (4) of the Act for the years 1972-73 and 1973-74. Subsequently, on receipt of audit report, a proceeding under section 12 (8) of the Act was initiated and tax at the rate of 7 per cent for 1972-73 and 8 per cent from 1st July, 1973, till 31st March, 1974, was assessed. Penalty was also imposed by the assessing officer. In the first appeal, the Assistant Commissioner accepted the finding of the assessing officer regarding the stoneware pipes and fittings. However, he annulled the imposition of penalty. A second appeal was carried to the Tribunal. The Tribunal also accepted the finding of the lower appellate court. On the application of the assessee, these references were made to this Court.

(3.) ON a perusal of the other passed by the Tribunal in Second Appeals Nos. 498-499 of 1977-78, we find that the Tribunal has proceeded on the footing that all types of pipes and pipe fittings are covered under the entry in serial number 7-B. It has not come to a definite finding whether stoneware pipes which were sold by the assessee, were used for sanitary purpose. According to the learned counsel, the grounds taken by him before the Sales Tax Officer, appellate court and the Tribunal were that stoneware pipes sold by the assessee, are used for purposes other than sanitary purposes. As the Tribunal proceeded on the footing that all types of pipes and pipe fittings are covered under the entry in serial number 7-B, it did not apply its mind to this aspect of the case and did not come to a specific finding as to whether stoneware pipes sold by the assessee are used for sanitary purposes. So, question No. (1) is answered in the following manner : If the stoneware pipes, manufactured by the assessee, are used for sanitary purposes in that event only entry in serial number 7-B shall be attracted. The Tribunal will consider the materials produced before it and after rehearing the parties come to a definite conclusion whether stoneware pipes manufactured by the assessee are used for sanitary purpose.