JUDGMENT Rajes Kumar, J.
1. These are three revisions filed by the Commissioner of Sales Tax Under Section 11 of the U.P. Sales Tax Act, 1948 (hereinafter referred to as "Act") against the order of Tribunal dated July 27, 1990 relating to assessment years 1979-80, 1980-81 and 1981-82.
2. A common question of law has been raised in the present revisions which is as follows :
"Whether, on the facts and in the circumstances of the case, the Sales Tax Tribunal was legally justified to hold diesel pump sets to be taxable as power driven agricultural implements despite finding of the honourable High Court in this year assessee's case in Sterling Machine Tools v. Commissioner of Sales Tax, U.P. [1979] 43 STC 72; 1978 U.P.T.C. 660 and of the honourable Supreme Court in State of U.P. v. Engineering Traders 1990 UPTC 838, that the same was taxable as machinery?".
3. The applicant was carrying on the business of manufacturing and sales of water pump, diesel engine and diesel engine pumping sets. It had been claimed that all the aforesaid items were independent items sold independently in the market. In the present revisions, dispute relates to the taxability of diesel engine pumping sets. Assessing Authority had levied tax on the pumping sets at 8 per cent treating it as a machinery under the Notification No. ST-II-6627/X-612-1972 dated December 1, 1973. First Appeal filed by the dealer was rejected. Dealer filed Second Appeal before the Tribunal which was allowed. Tribunal had held that the diesel engine pumping set is an agricultural implement and hence, it is liable to tax at 6 per cent (inclusive surcharge) and not as a machinery. Tribunal had relied upon the judgment of the Tribunal in Appeal No. 1185 of 1981 for the assessment year 1978-79, in which it had been held that the water pump and diesel pumping set were two different commodities and diesel pumping sets were liable to tax as a agricultural implements. Being aggrieved by the order of Tribunal, present revisions have been filed.
4. I have heard Sri M.R. Jaiswal, learned Standing Counsel and Sri Bharat Ji Agrawal, learned Senior Advocate.
5. Learned Standing Counsel contended that in the case of Engineering Traders v. State of Uttar Pradesh reported in [1973] 31 STC 456 ; 1973 UPTC 91, the Full Bench of this Court had held pumping set as a agricultural implements. Against the said order, Special Leave Petition was filed by the State which was allowed and the Full Bench decision in the case of Engineering Traders v. State of Uttar Pradesh [1973] 31 STC 456, 1973 UPTC 91 was set aside. The honourable Supreme Court had reversed the judgment of this Court in the case of Engineering Traders [1973] 31 STC 456, 1973 UPTC 91, in view of the amendment made in the relevant notification by section 31 of the Amending Act of U.P. Sales Tax (Amendment and Validation) Act, 1975 (U.P. Act No. 38 of 1975), by which, in the relevant notification the word "Agricultural implements, other than implements worked by human or animal power and water pumps" have been substituted and was deemed to have been substituted in place of previous expressions used namely "Agricultural implements, other than those worked by human or animal power." He also referred a division Bench judgment of this Court in the case of U.P. Agricultural Corporation, Aligarh v. State of U.P. reported in 1987 UPTC 2164, in which, diesel pumping set had been held taxable under the entry of machinery in view of Amendment in Notification by Act No.38 of 1975. He further cited a judgment of this Court in the case of assessee itself in Sterling Machine Tools v. Commissioner of Sales Tax reported in [1979] 43 STC 72 ; 1978 UPTC 660, in which, diesel pumping set has been held falling within the purview of water pump and therefore, held liable to tax under the machinery and not as an agricultural implement. He has further referred a division Bench judgment of this Court in the case of Basant Industries v. Commissioner of Sales Tax reported in [1975] 36 STC 209, in which, in view of Amendment by section 9 of the U.P. Sales Tax Act of Amendment to 1974 (Act No. 17 of 1974), by which, the entry No. 52 of the First Schedule to the U.P. Sales Tax Act has been amended retrospectively. Pumping set has been held liable to tax as a machinery and not as a agricultural implement. In view of the above decision, it has been submitted that the diesel pumping sets sold by the dealer was liable to tax as a machinery at 8 per cent and not as a agricultural implement at 6 per cent and the order of Tribunal is liable to be set aside.
6. In reply, Sri Bharat Ji Agrawal, learned Senior Advocate submitted that the order of Tribunal for the assessment year 1978-79 has become final, inasmuch as, no revision has been filed against the said order and the Department had accepted the said order, in which, diesel engine pumping set has been held liable to tax as a agricultural implement and not Machinery. He submitted that the decision of the honourable Supreme Court in the case of State of U.P. v. Engineering Traders 1990 UPTC 838, the division Bench decisions in the case of Basant Industries v. Commissioner of Sales Tax [1975] 36 STC 209 (All.) and U.P. Agricultural Corporation, Aligarh v. State of U.P. 1987 UPTC 2164 are not applicable to the applicant's case in view of later judgment of the honourable apex Court in the case of dealer itself in Civil Appeal Nos. 475-78 of 1980 Sterling Machine Tools v. Commissioner of Sales Tax, U.P. decided on August 7, 1996, in which the judgment of the honourable single Judge in the case of assessee Sterling Machine Tools v. Commissioner of Sales Tax reported in [1979] 43 STC 72 (All.) ; 1978 UPTC 660 was set aside. He further submitted that the decision of the honourable apex Court dated August 7, 1996 is of a later date and therefore, is binding upon this Court and earlier judgment of the honourable Supreme Court in the case of State of U.P. v. Engineering Traders 1990 UPTC 838, is not applicable because it did not specifically consider the distinction between the water pump and pumping sets which has been considered in the later judgment and by the judgment of the honourable Supreme Court all the judgments of division Benches referred by Standing Counsel stand overruled.
7. He further submitted that in the case of any conflict between the two decisions of the honourable Supreme Court given by the Judges of equal strength till the decision of later bench is binding and for this, the reliance has been placed on the full Bench judgment of this Court in the case of Gopal Krishna Indley v. Fifth Additional District Judge, reported in AIR 1981 All. 300.
8. In order to decide the issue, relevant Notifications and entries relating to Agricultural Implements and Machinery are referred below;-
10. Further by section 31 of the Amending Act of U.P. Sales Tax Amendment of Validation of 1975 being U.P. Act No. 38 of 1975 the words "Agricultural implements other than, implements worked by human or animal power" in the Notification No. ST-332/X-1012-1971 dated November 15, 1971 and S.T.II-6203/X-1012-72 dated September 29, 1972 have been substituted by "Agricultural Implements other than Implements worked by human or animal power and water pump" and in the Notification No.ST-II-332/X-1012-971 dated November 15, 1971 and Notification No. ST-II-6627/X-1012-72 dated December 1, 1973 in Serial No. 52 the words "Machinery and spare parts of machinery" have been substituted by word "Machinery and spare parts of machinery including water pumps." The aforesaid Notification has been further amended vide Notification dated August 7, 1981.
11. The Notifications which were prevailing at the relevant time after amendment reads as follows :
Agricultural Implements :
Notification No. ST-II-6203/X-1012-1972 dated September 29, 1972.
Amended with complete retrospective effect by Act No. 38 of 1975.
"Agricultural Implements other than Implements worked by human or animal power and Water Pump, but including their parts and accessories other than Tyres and Tubes."
12. In the present case, Tribunal has held diesel pumping set and water pump as two different items and diesel pumping set has been held as an agricultural implement. Tribunal relied upon the division Bench judgment of this Court in the case of Nath Engineering Company v. State of U.P. reported in 1983 UPTC 237, in which "pumping sets" is held as agriculture implement. Learned Standing Counsel has challenged the order of Tribunal merely on the ground that after retrospective amendment referred above, by U.P. Act No.38 of 1975 pumping set which are nothing but water pump are excluded from agricultural implement and are included in the entry of machinery, therefore, should be taxed as Machinery. It has not been disputed that otherwise, "pumping set" is an agricultural implement.
13. A perusal of amendment shows that by Act No. 38 of 1975 only water pump was excluded from the agricultural implement and included in the machinery. Further by Notification No. ST-II-5785/ X.....dated September 7, 1981 and Notification No. ST-II-5784/X, dated September 7, 1981, "pumping set" was specifically excluded from agricultural implement and included in the machinery. This also shows that "water pump" and "pumping set" were two different items and by Act No. 38 of 1975, only "water pump" was excluded and with effect from September 7, 1981, both "water pump" and "pumping set" were excluded from agricultural implement. The honourable Supreme Court in the case of State of U.P. v. Engineering Traders 1990 UPTC 838 and the division Bench in the cases of Basant Industries v. Commissioner of Sales Tax [1975] 36 STC 209 (All.) and U.P. Agricultural Corporation, Aligarh v. State of U.P. 1987 UPTC 2164 have not considered the distinction between water pump and pumping set and had also not considered that by retrospective amendment only "water pump" was excluded and not "pumping set". The decision of apex Court in Civil Appeal Nos. 475-478 of 1980 Sterling Machine Tools v. Commissioner of Sales Tax, U.P. decided on August 7, 1986 is the case of dealer itself and it in this case pumping set and water pump have been treated as two different items and it has been held that only water pump was excluded from agricultural implement and not pumping sets and the decision of this Court in the case of Sterling Machine Tools v. Commissioner of Sales Tax, U.P., reported in [1979] 43 STC 72 ; 1978 UPTC 660 has been set aside.
14. The Apex Court held as follows :
"The final fact finding authority, being the Additional Judge (Revision), Sales Tax, Gorakhpur, had come to the conclusion that the pumping sets in question were agricultural implements and taxable at the rate of 2 per cent as such. The question posed in relation to pumping sets it would have been noted, only asked whether they are liable to tax as machinery, i.e., under the residuary item No. 52 at the rate of 6 per cent by reason of the retrospective amendment to the U.P. Sales Tax Act brought about by the U.P. Sales Tax (Amendment) Act of 1974. The finding that the pumping sets were agricultural implements was not questioned.
The amendment of 1974 alters items Nos. 1 and 52 of the Schedule to the Act to read thus :
Sl. Description Point at No. which tax is levied. 1. Agricultural implements, other than implements M or I worked by human or animal power and water pumps, but including their parts and accessories other than tyres and tubes. 52. Machinery and spare parts of machinery, including M or I water pumps, not being such machinery or spare parts thereof as are taxable under any other item in this Schedule. In other words, water pumps are now specifically taken out of the purview of item 1 and placed in item No. 52.
Pumping sets, which have been found to be agricultural implements, are not taken out of the purview of item No. 1 and placed within the purview of item 52 by the 1974 amendment. That is done only in respect of water pumps. The High Court did not advert to this aspect at all. It only referred to its judgment in the case of Sterling Machine Tools v. Commissioner of, Sales Tax, U.P, [1979] 43 STC 72 ; wherein the question of the amendment of the items did not arise and no finding of fact by the revisional authority had been made in favour of the assessee. The High Court's view must be reversed."
15. In the case of Gopal Krishna Indley v. Fifth Additional District Judge, Kanpur, the Full Bench of this Court reported in AIR 1981 All. 300 has held as follows:-
20. "The difficulty, however, before us is slightly different, and is not covered by the authority cited above. We are faced with a situation where there are conflicts between the two decisions of the Supreme Court given by Judges of equal strength. We are not concerned here with reasons which led to these conflicts.
22. To meet a situation like the present, reference may be made to a Full Bench decision of our Court in UP. State Road Transport Corporation v. State Transport Appellate Tribunal, U.P. Lucknow AIR 1977 All. 1 ; 1976 All. LJ 683 where the Full Bench held :
'Even if there is some conflict in the two Supreme Court's decisions, we have to follow the law as declared in the latter case of Mysore State Transport Corporation/To the same effect is the view taken by a Full Bench of Karnataka High Court in Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. AIR 1980 Kar 92, and by Calcutta High Court in Sovachand Mulchand v. Collector of Central Excise and Land Customs AIR 1968 Cal. 174. Thus, what follows is that in the event of there being clear conflict, the decision of such latter Bench would be binding on us.
24. Counsel appearing for the petitioner submitted that since in Ram Saroop Rai's case 1980 All LJ 65 (SC) the earlier decision given in Ratan Lal Shinghal's case AIR 1980 SC 635 had not been cited, the decision being in ignorance of a case which was binding on the Court is per incuriam. Counsel urged that Ram Saroop Rai's decision 1980 All LJ 651 (SC), does not have a binding authority. We are unable to agree with the submission of the learned counsel for the petitioner. In Ballabhdas Mathuradas Lakhani v. Municipal Committee, Malkapur AIR 1970 SC 1002, the Supreme Court held that a Supreme Court's judgment is binding on High Court and it cannot be ignored on ground that relevant provision was not brought to the notice of the Supreme Court. To us, it appears that it is only in cases of decision of concurrent Courts that the doctrine of per incuriam can be applied. Thus, the law declared by the Supreme Court cannot be ignored on that basis. A failure to cite authority of the earlier decision of the Supreme Court before it is not sufficient to render its latter decision per incuriam. Overruling a similar argument made in Ambika Prasad Mishra v. State of U.P. 1980 RD 227; AIR 1980 SC 1762, Krishna Iyer, J., agreed with the following observations made in Salmond 'Jurisprudence,' page 215 (11th edition):-
'A decision does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned.'
25. We, therefore, cannot ignore the subsequent decision of the Supreme Court on the basis of the same being per incuriam.
27. To the same effect is the law laid down by Jassel M.R. in Baker v. White (1877) 5 Ch.D. 183 (?). We do not wish to express opinion on this aspect of the matter. We would only content ourselves by saying that since we are bound by the latter decision of the Supreme Court, we must follow the same. To us, it appears that the latter decision has impliedly overruled the earlier."
16. In view of the facts and circumstances stated above and the law laid down by Full Bench, the decision of apex Court in Civil Appeal No. 475-78 of 1980, Sterling Machine Tools v. Commissioner of Sales Tax, U.P. dated August 7, 1996 is binding to this Court being latter decision. Following the decision of apex Court, it is held that the diesel engine pumping sets up to the period September 6, 1981 is liable to tax as an agricultural implement. With effect from September 7, 1981 by Notification No. ST-II-5785/X dated September 7, 1981, pumping set has been specifically excluded from agricultural implement and by Notification No. ST-II-5784/X dated September 7, 1981, pumping set has been specifically included in the machinery, therefore, after September 7, 1981, diesel engine pumping sets is liable to tax as a machinery and not as an agricultural implement.
17. In the result, Revision No. 1735 of 1990 relating to assessment year 1979-80, Revision No. 1736 of 1990 relating to assessment year 1980-81 are dismissed and Revision No. 1737 of 1990 relating to assessment year 1981-82 is partly allowed and it is held that diesel engine pumping set up to the period of September 6, 1981 is liable to tax as an agricultural implement and thereafter, for the period September 7, 1981 to March 31, 1982, it is liable to tax as a machinery. Tribunal is directed to pass necessary orders Under Section 11(8) of the Act.