JUDGMENT Prakash Krishna, J.
1. Present revision under Section 11 of the U.P. Trade Tax Act, 1948 is against the order dated February 29,1992 passed by the Sales Tax Tribunal, Agra, in second appeal No. 12 of 1992 (1981-82) U.P.
2. The point involved in the present revision is with regard to the rate of tax on the turnover of tin trays. The dispute relates to the assessment year 1981-82. The assessing authority has accepted the account books of the dealer-opposite party. It has been noticed in the assessment order dated March 29,1986 that dealer has accepted the tax liability on the turnover of tin trays at six per cent but has realised the same from the purchasers at the rate of eight per cent. On first appeal the said order was confirmed by the first appellate authority. The first appellate authority rejected the contention of the dealer-opposite party that tin tray is a classified item and covered within the entry "...iron made kitchen utensils and appliances..." of Notification No. 8223, dated August 31, 1979. The Tribunal in second appeal has modified the order and it has been held that "tin trays" are covered by the entry of "kitchen utensils made of iron". Aggrieved against the aforesaid order the present revision has been filed.
3. Heard the learned Standing Counsel for the applicant. None appeared for the dealer-opposite party. An affidavit of service has been filed by the department stating that notice has been effected on the opposite party by registered post in compliance with the direction of the High Court dated September 3, 2003. A copy of the registration receipt of the post office has been annexed along with the affidavit. The service on the opposite party is held sufficient.
4. The learned Standing Counsel submitted that the Tribunal has committed illegality in construing the notification dated August 31, 1979 being Notification No. ST-II-8223/X-9(213)/77 U.P. Act No. XV-48-order-79. He would submit that the Tribunal has wrongly placed reliance upon a judgment of this court given in the case of Modern Tin Printers and Fabricators v. Commissioner of Sales Tax [1979] 43 STC 257 : [1978] UPTC 451. The court has considered entirely a different controversy therein.
5. Having heard the learned Standing Counsel I find sufficient force in the argument of the learned Standing Counsel. The Division Bench of this Court in the case of Modern Tin Printers [1979] 43 STC 257 : [1978] UPTC 451 considered the question as to whether tin tray is covered under the Notification ST-2104 dated May 21,1963. The commodity in the said notification, was "wares made of any metal or alloy other than brass and aluminum." This court has held that the tray falls within the word "wares" and is liable to be taxed accordingly. It has been observed that the tin trays manufactured by the assessee from tin sheets are used for keeping or carrying food stuffs and other edibles, etc. They are part of the normal kitchen equipment. Their user is similar to that of a thali. Accordingly, it was held that tin trays do fall within the purview of the aforesaid notification dated May 21, 1963 as they are "wares". However in the case in hand altogether a different controversy is involved. It is not in dispute that the dealer is manufacturer of tin trays. The question that falls for consideration in this revision is as to whether tin trays also fall within "iron-made kitchen utensils and appliances".
6. The learned Standing Counsel has made reference to earlier notifica-tions on this point. Reference was made to Notification No. ST-II-332/X--1012-1971, dated November 15,1971. The relevant portion of entry No. 83 of the said notification reads as follows:
7. The aforesaid entry was omitted by Notification No. ST-II-8222/X-- 7 9(213)/77-U.P. Act No. XV-48-order-79, dated August 31, 1979. But by another Notification No. ST-II-8223/X--9(213)/77-U.P. Act No. XV-48-Order-79 dated August 31, 1979 item No. 32 which reads as follows was inserted in Notification No. ST-II-4949 dated May 30, 1975. Only the relevant portion is reproduced below:
32. ...Iron made kitchen utensils and appliances, trunks, post office letter boxes, containers (including buckets tubs and drums) made of tin or iron or steel and hair-clipping machines." Taxable at the rate of 5 per cent at the hands of manufacturer or importer.
8. By a subsequent Notification No. ST-5785 dated September 7,1981 with effect from September 7, 1981 by entry No. 44, "...iron made kitchen utensils and appliances..."were made taxable at the rate of six per cent at the hands of manufacturer or importer. The said entry is similar to the earlier entry in Notification No. 8223 dated August 31, 1979. Only the rate of tax was enhanced from five per cent to six per cent. There is no change in the phrase "iron made kitchen utensils and appliances." This phrase was not there in the notification of 1963 with which the division Bench was concerned in the case of Modern Tin Printers and Fabricators .
9. The High Court in the case of Modern Tin Printers and Fabricators , held that "tin tray" is a "ware" within the notification of 1963, but it was not held that "tin tray" is covered by the phrase "iron-made kitchen utensils and appliances". Therefore, I am of the view that the order of the Tribunal is unwarranted and cannot be sustained. The Tribunal after noticing the aforesaid division Bench judgment of this court immediately jumped to the conclusion "that the sale of tin trays being part of normal kitchen equipment is liable to be taxed at the rate of six per cent and not eight per cent." The Tribunal has not recorded any finding that the tin trays also fall under the phrase "iron made kitchen utensils and appliances." In the absence of any such finding the Tribunal was not justified in reversing the assessment order and the order of the appellate authority. These authorities have recorded a specific finding that "tin tray" is not covered by the words "iron-made kitchen utensils and appliances".
10. There is another reason also for not sustaining the order of the Tribunal. "A reading of entry No. 44 of the notification dated September 7,1981 and the earlier notification dated August 31, 1979 clearly shows that the legislators had in mind the difference in between tin, iron and steel. In the latter part of the entry No. 44 post office letter boxes made of tin or iron or steel have been specifically mentioned, while with respect to kitchen utensils and appliances it is not so. Therefore, the omission of 'tin' and specific mention of iron made kitchen utensils and appliances excludes other kitchen utensils and appliances made other than of iron. On a plain reading of entry No. 44 of the aforesaid notification it is not possible to hold that kitchen utensils and appliances, other than made of iron are also covered by the aforesaid entry. Thus 'tin tray' is an unclassified item. The Tribunal has not recorded any such finding that tin tray is a classified item.". The dealer has also treated tin tray as an unclassified item and therefore realised tax from the purchasers at the rate of eight per cent as noticed in the assessment order itself.
11. In the result, the order of the Tribunal as indicated above cannot be sustained and is hereby set aside, so far as it relates to the question of taxability of tin tray is concerned. The rest part of the order of the Tribunal is not subject-matter of the present revision.
12. In the result the revision is allowed. The order of the Tribunal as indicated above is set aside and the order of the first appellate authority is restored back.