JUDGMENT Rajes Kumar, J.
1. The present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as Act) is directed against the order of Tribunal dated 05.05.1997 relating to assessment year 1991-92 under the U.P. Trade Tax Act.
2. The question involved in the present revision relates to the classification of Elastic Yarn manufactured by the dealer. Elastic Yarn is admittedly manufactured by putting the Acrylic or Nylon thread over the rubber thread and is commonly used to provide tightness and elastic on the upper portion of Socks. The claim of revenue is that it was liable to tax under the entry 25 "Knitting Yarn, whether Woolen, Acrylic or of any other kind" of Notification No. ST-II-5785/X-10(1)- 80-U.P. Act-XV/48-Order-81, dated 7.9.1981 @ 6% up to 31.10.1991 and thereafter, @ 4%. Claim of dealer is that it was liable to tax under the entry 55 "Yarns of all kinds except those covered by any other Notification" of Notification No. ST-II-5785/X-10(1)-80-U.P. Act-XV/48-Order-81, dated 7.9.1981 @ 2%.
3. In the original assessment proceeding, Elastic Yarn manufactured by the dealer was assessed to tax @. 2% under the entry 55 "Yarn of all kinds". Assessing Authority passed an order under Section 21 of the Act and levied tax on the turnover of Elastic Yarn under the entry "Knitting Yarns, whether Woolen, Acrylic or of any other kind" of Notification No. ST-II-5785/X-10(1)-80-U.P. Act-XV/48-Order-81, dated 7.9.1981 the rate applicable to it. First Appeal filed by the dealer was allowed and the Elastic Yarn has been held taxable under the entry Yarn of all kinds" of Notification No. ST-II-5785/X-10(1)-80-U.P. Act-XV/48-Order-81, dated 7.9.1981. The Commissioner of Trade Tax filed appeal before the Tribunal which has been dismissed by the impugned order.
4. Heard learned Counsel for the parties.
5. Learned Standing Counsel submitted that the Elastic Yarn is used mainly in the manufacturing of Socks to provide tightness and Elastic on the upper portion of the Socks. He submitted that it is a "Knitting Yarn". Learned Counsel for the dealer submitted that the Elastic Yarn is used to provide tightness and Elastic to the upper portion of Socks and other hosiery goods by process of weaving and not by knitting. He submitted that in common parlance and commercial sense it is not known as "Knitting Yarn", inasmuch as, it is not used for making the knitting wear namely Sweater, Pullover, Cardigan etc. He submitted that in support of claim that Elastic Yarn is not a "Knitting Yarn", a certificate of Sri S.K. Agarwal a Textile Technologist was filed, in which he had certified that Elastic Yarn is not a "Knitting Yarn" and the Tribunal while coming to the conclusion that the Elastic is not "Knitting Yarn" has relied upon the said certificate.
6. Having heard learned Counsel for the parties and perused the order of Tribunal and the authorities below. Both the parties are not disputing that it is a "Yarn". Assessing Authority had also levied tax under the entry 25 of Notification No. ST-II-5785/X-10(1)-80-U.P. Act-XV/48-Order-81, dated 7.9.1981 which relates to "Knitting Yarn". Thus, issue remains for consideration is whether the "Elastic Yarn" is a "Knitting Yarn". If it is Knitting Yarn, it is deemed to be excluded from the entry of "Yarn of all kinds" and liable to tax under the entry of "Knitting Yarn". Learned Standing Counsel has not referred any material to establish that the Elastic Yarn is used as a "Knitting Yarn" for preparation of knitting wears namely Sweater, Pullover, Cardigan etc. To the contrary, dealer submitted a Certificate of Sri S.K. Agarwal, a Textile Technologist, in which, he had certified that the Elastic Yarn is not a "Knitting Yarn". It has also been claimed that it is used in making Socks by the process of weaving and not knitting. Against this claim, revenue has not placed any material. In the circumstances, there is no reason to interfere with the view taken by the Tribunal that the "Elastic Yarn" is not a "Knitting Yarn" and is liable to be taxed under the entry "Yarn of all Kinds".
7. In the result, revision fails, and is, accordingly, dismissed.