JUDGMENT Satish Chandra, J.
1. The Revising Authority, Varanasi, has referred the following questions for opinion of this court:
(1) Whether, in view of the above facts and in the circumstances of the case, the Additional Judge (Revisions), Sales Tax, Varanasi Range, Varanasi, was justified in holding sewai-ki-machine as brassware taxable at 3 per cent in view of Notification No. ST-6439/X-1012-1962 dated 1st December, 1962 ?
(2) Whether, in view of the above facts and in the circumstances of the case, sewai-ki-machine could be treated as machinery taxable at 6 per cent in view of Notification No. ST-7098/X-1012-1965 dated 1st October, 1965?
2. For the assessment year 1966-67 account books were accepted under which the turnover of sewai-ki-machines manufactured by the assessee was accepted at Rs. 3,336. The claim that sewai-ki-machines were brasswares and as such can be taxable at 3 per cent was repelled by the Sales Tax Officer. This view was upheld on appeal. Aggrieved, the assessee went up in revision. The Judge (Revisions) held that sewai-ki-machine in ordinary course of business is not considered to be a machine as accepted in the general sense. Machinery is something allied with rolling mill, etc. Sewai-ki-machine cannot be put in that category and has to be taxed as brassware.
3. The position is not as simple as the Judge (Revisions) made it out. The notification dated 1st December, 1962, was issued under Section 3 of the U. P. Sales Tax Act. It purported to levy sales tax at the rate of 3 per cent, inter alia, on brasswares. The notification dated 1st October, 1965, was issued under Section 3-A. Under it "the turnover in respect of machinery and spare parts of machinery, not being such machinery or spare parts thereof as are taxable under any other notification issued under the aforesaid section" were liable to tax at the rate of 6 per cent at the point of import and manufacture in the hands of the importer or manufacturer respectively. Section 3 of the Act, as it stood in the years 1966 and 1967, provided for a levy of sales tax at the rate of 3 per cent on the turnover of every dealer. This section operated subject to the other provisions of the Act. Section 3-A stated:
Single point taxation.-(1) Notwithstanding anything contained in Section 3, the State Government may, by notification in the official Gazette, declare that the turnover in respect of any goods or class of goods shall not be liable to tax except at such single point in the series of sales by successive dealers as the State Government may specify.
(2) If the State Government makes a declaration under Sub-section (1), it may further declare that the turnover in respect of such goods shall be liable to tax at such rate not exceeding ten paise per rupee as may be specified.
(3) ...
4. It will be seen that Section 3-A operates "notwithstanding anything contained in Section 3". Under it the State Government can specify any class of goods for being taxed at specified single point in the series of successive sales. Under Sub-section (2) the State Government can fix the rate up to and a maximum of 10 paise per rupee. It is thus evident that if the State Government notifies the goods and the rate of tax under Section 3-A, it is not taxable under Section 3. It will be taxed at the specified point of sale at the rate mentioned in the notification issued under Section 3-A.
5. In the present case, "brassware" was notified to be taxable at 3 per cent under the notification issued under Section 3 on 1st December, 1962, but the notification dated 1st October, 1965, issued under Section 3-A made it clear that "machinery and their spare parts" were liable to be taxed only at the point of import and manufacture in the hands of importer or manufacturer at 6 per cent. This notification had the effect of excluding the other points of sale of machinery and spare parts of machinery from being liable to sales tax under Section 3. In the next place, even if a particular machinery may be "brassware" so as to be covered by the notification dated 1st December, 1962, yet since it is specifically made liable to sales tax at the point of import and manufacture only it would be liable to sales tax at that point alone with the result that it ceases to be liable to tax under the notification dated 1st December, 1962, which was issued under Section 3.
6. The question for consideration, therefore, is whether sewai-ki-machines manufactured by the assessee were brasswares and not machinery. If it was machinery, then it would be taxable at 6 per cent notwithstanding that it may also happen to be covered by the entry "brassware" occurring in the notification dated 1st December, 1962.
7. In Engineering Traders v. State of U.P. 1973 U.P.T.C. 91, the notification dated 1st October, 1965, came up for consideration before a Full Bench. The Full Bench, while considering that notification, observed :
The notification reproduced above relates to machinery and its spare parts. Machinery, according to dictionary meaning, means 'a machine in general or a functioning unit'. The word 'machine' is a well-known term and, according to Webster's Dictionary, means 'an instrument (as a lever) designed to transmit and modify the application of power, force and motion'. Thus, machinery in generic sense would include all appliances and instruments whereby energy or force is transmitted and transformed from one point to another. In that sense, it will include simple appliance like a lever to complicated machinery employed in mills and factories.
8. The Full Bench held that pumping sets were "machinery" within the purview of the notification dated 1st October, 1965, but since the notification did not apply to those goods which were taxable under any other notification issued under Section 3-A and since pumping sets fell within the category of "agricultural implements", they were not taxable under the former notification. A similar question came up for consideration before a Bench of this Court in Commissioner, Sales Tax, U. P., Lucknow v. Chandok Traders, Allahabad 1973 U.P.T.C. 484, where the question referred to the High Court was whether hair clipper was a "machinery". The Bench, following the ratio of the aforesaid Full Bench, held:
It will be seen that all appliances and instruments whereby energy or force is transmitted and transformed from one point to another, save those as are taxable under any other notification under Section 3-A of the Act, are liable to be taxed under this notification. Hair clipper is undoubtedly an instrument which transmits force from one point to another. Thus, it would be covered by the notification in question, provided that is not made subject to tax under any other notification issued under Section 3-A. No such notification has been brought to our notice. This being so, hair clippers would be taxable under the aforesaid notification.
9. The Bench also observed :
The Additional Judge (Revisions), while holding that hair clippers do not fall in the category of 'machinery', has adverted to the fact that they are not known as such in common parlance or in the trade circle. There does not appear to be any evidence on the record for this conclusion, and neither have we been referred to any trade journal or any other standard publication in which hair clippers are not classified as machinery in the trade circle. We are also unable to agree with the view of the additional revising authority that hair clippers are not termed in common parlance as machinery, as normally all mechanical contrivances are generally understood to be items of machinery.
10. In the present case, the instrument manufactured by the assessee for making sewai undoubtedly transmits and transforms force from one point to another. That is the only way it can and does work. In our opinion, the instrument made by the petitioner for making sewai is nothing but machinery as commonly understood. No other notification issued under Section 3-A relating to sewai-ki-machine has been brought to our notice. The result is that the instrument manufactured by the assessee was machinery under the notification dated 1st October, 1965, and was taxable at 6 per cent.
11. In this case also, the revising authority has mentioned that in the ordinary course of business sewai-ki-machine is not considered to be a machine as accepted in the general sense. There is no evidence on the record to support this conclusion. In common parlance, mechanical contrivances are understood as machinery.
12. In the result, we answer the first question in the negative, in favour of the department and against the assessee, and the second question is answered in the affirmative, in favour of the department and against the assessee. Since no one has appeared on behalf of the assessee, there will be no order as to costs.