JUDGMENT Satish Chandra, J. - The assessee was a dealer in iron scrap and steel wire. For the assessment year 1967-68 he disclosed his taxable sales of scrap at Rs. 1,68,330.33 and of steel wire at Rs. 35,789.78 upto 31-7-1967. The turnover of sales of steel wire after 31-7-1967 was disclosed at Rs. 80.250.75 and it was claimed that this part was not taxable, because it was U.P. purchased hardware.
2. The Sales Tax Officer accepted the submission of the assessee that steel wire was hardware and so its turnover after 31-67-1967 was exempt from sales tax. He, however, enhanced the turnover of U.P. Sales tax to Rs. 3,40,000/-. The assessee went up in appeal. The learned A.C. (J.) held that the rejection of the account was not proper. He remanded the case for determination of the turnover afresh. On the question of law as to the taxability of turnover if iron and steel, the Appellate Commissioner held that it fell within the purview of iron and steel within meaning of S. 3-A of the U.P. Sales Tax Act and it was not hardware and, therefore, the entire years turnover was liable to tax under S. 3-AA, unless he proved that this steel wire was sold to shop keepers for resale to consumers. Since this aspect has not been gone into, this part of the case was remanded.
3. The assessee felt aggrieved and went up in revision. The principle question in the revision was as to under which head the turnover of steel wire was taxable. The Additional Judge (Revisions) held that the steel wire was not covered by the entry of iron and steel under S. 3-AA. It should be included in the entry mill stores and hardwares mentioned in the notification issued under S. 3-A of Act. Since the relevant entry was amended by the notification dated 1-3-1968 to specifically exclude steel wire from the entry of mill stores and hardwares, the turnover of steel wire with effect from 1-3-68 was taxable at the rate of 3% at all points of sale. At the instance of the Commissioner. Sales-tax, the Judge (Revisions) had drawn up this statement of the case and referred the following question of law for our opinion :-
"1. Whether on the facts and in the circumstances of the case, the learned Additional Judge (Revisions) was right in law to treat the steel wire as hardware ?
2. If the answer is in the negative, whether steel wire is liable to be taxed under the notification No. 2104/X-9 (10)/52 dated 4-5-1964 at the rate of 3% multiple point ?"
In Commissioner of Sales Tax vs. M/s. Agarwal Commercial Corporation a Bench of this court held :-
"A wire cannot by any stretch of imagination be said to be a ware A ware when used as a noun means "Manufactured articles, products of arts or crafts or produce." The finding in this case it that the assessee sells galvanised wire in the same condition in which he purchased from the manufacture mills. The coils of galvanised iron wires cannot be said to be ware, so that there is no question of their being hardware. By hardware is meant small articles like nuts, bolts etc. as held by this Court in C. S. T. C. vs. Aftab Hussain Imdad Hussain. Accordingly, we answer the first question in the negative by saying that galvanised wire in question are not hardware."
It was further held that galvanised wire was covered by S. 3-AA under the heading of Iron & Steel. The Bench observed :
"Coming to the 2nd question, it cannot be dispute that the rolling mill from which the petitioner purchase the wire is engaged in the production of iron and steel. Iron and steel, as is evident from S. 3-AA itself, may be in various shapes such as plates, ignots, bars rods etc. It can be in the shape of wires and merely because iron wires are galvanised does not change their nature."
According to the view expressed by this Division Bench steel wires will be covered by entry "Iron and steel" under Ss. 3-AA and will not be covered by entry of wares made of any metal or alloys" under the notification dated 21st May, 1963. This view was affirmed by another Division Bench of this Court in Commissioner of Sales Tax vs. M/s. Kamta Pd. Brij Mohan Lal It was held that the galvanised wire is not hardware but iron and steel covered by S-3 AA of the Act.
4. It was stressed by the learned Counsel that the amendment made in the relevant entry of the notification of the State Government by the notification of 1st March, 1968, expressly excluding steel wire from the entry of mill stores and hardware necessarily implied that before the date of amendment the entry of mill stores and hardware included steel wire. In support of this reliance was placed on the case of Thiru Manickam and Company vs. State of Tamil Nadu. This submission is of no avail to the assessee. This will take the assessee only this far that the notification issued under S. 3-A included Steel wires" in the entry of mill stores and hardware till February, 1968. But S. 3-AA overrides S. 3-A. The notification was issued by the State Government under S. 3-A
5. The entry on "iron and steel" occurring in S. 3-AA was interpreted by this Court as including steel wires." The legislative intention in S. 3-AA was clear and not ambiguous. It cannot be read in the light of notification issued by the executive Government or the amendment of the notification made by the executive Government.
6. Learned Counsel for the assessee submitted that the entry was mill stores and hardware and even if the turnover of steel wire is not covered by the term it is nonetheless within the purview of term of mill stores". This contention was repelled by a Full Bench of this Court in Commissioner of Sales Tax vs. Ram Niwas Pushkar Dutt. The Full Bench observed :-
"We had occasion to consider the expression mill-stores and hardware in Commissioner of Sales Tax vs. Aftab Hussain (25 S.T.C. 471) and we pointed out that the expression referred to commodities belonging to allied treads, that while mill-storesconsisted of items such as small tools and spare parts of machinery, hardware ordinarily to items made of base consisting of building materials such as nuts, bolts, hinges, rivets latches etc."
It is evident that applying the test laid down by the Full Bench steel wires cannot possibly be termed as mill-stores.
7. The consistent view of this Court is that steel wire is iron and steel within the meaning of S. 3-AA.
8. In the result the first question is answered by holding that steel wire in iron and steel within meaning of S. 3-AA of the U.P. Sales Tax Act and was not covered by the entry mill stores and hardware." The second question is answered by holding that steel wire is not liable to be taxed under the notification dated 4th May, 1963 under the entry wires of any metal or alloy. Since we have answered the first question in favour of the Department and the second question in favour of the assessee, this is fit case where the parties will bear their own costs.