JUDGMENT R.M. Sahai, J.
1. The following question was referred for the opinion of this court :
Whether, on the facts and in the circumstances of the case, the drums and tins made of iron and sold by the assessee were taxable at 3 per cent as wares made of any metal or alloy other than brass or aluminium or gold or silver under Notification No. ST-3126/X-1012(4)-1965 dated 1st July, 1966 ?
2. The facts are not in dispute. The assessee effected sales in drums and tins made of iron. The finding by the assessing authority and the Assistant Commissioner (Judicial), Sales Tax, was that it is covered by an entry in Notification No. ST-2104/X-902(16)-52 dated 21st May, 1963, read with Notification No. ST-3126/X-1012(4)-1965 dated 1st July, 1966. The question that arises for consideration is whether drums and tins which are not bartan are covered by the notification which levies tax at the rate of 3 per cent on wares made of any metal or alloy other than brass or aluminium or gold or silver. This very notification came up for consideration before a Bench of this Court, See Indian Hume Pipe Company Ltd. v. State of Uttar Pradesh [1974] 34 S.T.C. 230 and after reading this notification along with the Hindi notification it was held that the word "ware" used in English has been used in the sense of such wares as were used as utensils (bartan). It was further held that Articles which could not be called "utensils" will not be covered by this notification. We agree with the ratio of this decision and are of the opinion that the drums and tins sold by the assessee was not covered by the aforesaid notification.
3. In view of what we have stated above we answer the question referred to us in the negative and against the department and in favour of the assessee. There shall be no order as to costs.