JUDGMENT Arun Tandon, J.
1. The Commissioner of Sales Tax has filed these five Trade Tax Revision against the same assessee in respect of the assessment years 1980-81 to 1985-86.
2. These revisions raise following issues :
a. The taxability of tin containers used for sale of vegetable and edible oil was incorrectly decided by the Tribunal. The legal position in that regard has already been settled in the case of Commissioner of Trade Tax v. Raghuwar India Ltd. reported in 2005 U.P.T.C. Page 758.
b. Purchase of coal from unregistered dealer has been excluded from the turn over only on the ground that Section 3(AAAA) has been struck down by the Hon'ble High Court in the case of Pioneer Tannery and Glue Works Ltd. v. State of U.P. and Ors.. The said judgment of the High Court stand over ruled under the judgment of the Hon'ble Supreme Court in the case of Hotel Balaji v. State of Andhra Pradesh 1993 UPTC page 318, wherein validity of Section 3(AAAA) has been upheld.
c. The Tribunal has held that refining of the Mustard Oil by the dealer did not amount to an activity of manufacture, so as to entail taxability. The aforesaid conclusion drawn by the Tribunal has been rendered illegal in view of the judgment of Hon'ble Supreme Court in the case of B.P. Oil 1998 UPTC Vol. 2 Page 1020, wherein the activity of refining has been held to constitute manufacture.
d. The issue with regards to the use of the Soyabean Oil seeds for manufacture of oil by solvent process could not have been reopened in the remand proceedings by the Assessing Authority under orders of the Appellate Authority inasmuch as the said issue was not covered by the order of remand. The Tribunal has failed to appreciate the aforesaid contention despite specific grounds having been raised in the memo of appeal.
e. Interest on the late payment of admitted tax on the purchase of Soyabean Oil seeds has not been levied because of the incorrect findings in respect of issued No. 4.
3. Shri N.R. Kumar on behalf of the assessee submits that the controversy with regards to the tin containers has been settled under the judgment of this Court reported in 2005 N.T.N. Vol. 26 page 477 Commissioner of Trade Tax v. Maluk Chand Cotton & Oil Mill, Aligarh.
4. With regards to issue No. 'b' it has been farily considered that the matter has to be remanded to the Tribunal in view of the validity of Section 3(AAAA) having being upheld by Hon'ble Supreme Court in the case of Hotel Balaji's case (Supra) for computation of the tax.
5. With regards to issue No. 'c', it is contended that refining cannot be held to be a process of manufacture nor any new product comes into extent so as to entail tax. In support thereof counsel for the assessee has placed reliance upon a judgment reported in 2004 Vol. 136 S.T.C. Page 617, Chemicare Products Ltd. and Anr. v. Assistant Commissioner of Commercial Tax and Ors.
6. With regards to issue No. 'd' it is submitted that the First Appellate Authority has recorded a finding supported by cogent reason in favour of the assessee that the Soyabean Oil Seeds purchased, were used for manufacture of oil through solvent process. The finding of fact recorded by the First Appellate Authority has been affirmed by the Trade Tax Tribunal and, therefore, no interference is required.
7. With regards to the liability of interest, counsel for the assessee submits that no case is made in the facts of the present case.
8. I have heard counsel for the parties and gone through the records of the case.
9. Issue No. 'a' qua the taxability of Tin Container is concerned the same is no more res intigra inasmuch as this Court in the case reported in 2005 NTN Vol. 26 page 477 Commissioner of Trade Tax v. Maluk Chand Cotton & Oil Mill, Aligarh has specifically held that the tin containers were separately liable to tax and since the purchase has been made by the assessee within the State of U.P., there is no liability of any tax being assessed in respect thereto. In view of the aforesaid the order passed by the Trade Tax Tribunal in respect of above issue is affirmed.
10. Validity of Section 3(AAAA) has been considered by the Supreme Court in the case of Hotel Balaji v. State of Andhra Pradesh (Supra). The section has been held to be constitutionally valid and, therefore, the order of the Tribunal granting relief to the assessee on the ground that the provisions of Section 3(AAAA) have been struck down by the Hon'ble High Court of Judicature at Allahabad in the case of Pioneer Tannery and Glue Works Ltd. (Supra) is based on a judgment which is no more a good law. The order of the Tribunal is accordingly quashed. The tribunal shall quantify the tax liability of the assessee on the purchase of coal from un-registered dealer in accordance with the Section 3(AAAA).
11. It is not in dispute that the assessee has purchased Mustard Oil and has refined the same to produce Refined Mustard Oil. The controversy as to whether such process of refining amounts to manufacture of new product so as to entail tax on the refined product has been subject matter of consideration by the Hon'ble Supreme Court in the case of B.P. Oil Mills (Supra). The Hon'ble Supreme Court has specifically held that after refining a new product come into existence and, therefore, amounts to manufacture. In view of the aforesaid the order of the Tribunal holding that refining does not amount to manufacture cannot be legally sustained.
12. On behalf of the department it is contended that in the memo of appeal filed before the Tribunal it was specifically contended that the issue as to whether the Soyabean Oil seeds purchased by the assessee were in fact used for manufacture of oil through solvent process could not have been gone into by the Assessing Authority on remand inasmuch as the aforesaid issue was not covered by the order of remand which was for specific purpose. From the order of the Tribunal-impugned in the present writ petition it is apparently clear that the aforesaid legal contention raised on behalf of the department has not been noticed and the Tribunal has not recorded any finding in that regard. The order of the Tribunal in respect of the said subject has also to be quashed.
13. The last issue qua the levy of interest on admitted tax has to be examined by the Tribunal itself afresh after deciding the above issue.
14. In view of the aforesaid all the Sales Revisions are allowed in part. The matter is remanded to the Tribunal to decide the issues No. 'b to e' as aforesaid afresh, in accordance with law, preferably within six months from the date a certified copy of this order is filed before it.