JUDGMENT Rajes Kumar, J.
1. Present revision under Section 11 of the U.P. Trade Tax Act (hereinafter referred to as "Act" ) is directed against the order of tribunal dated 18.10.1996 for the assessment year 1989-90.
2. The controversy involved in the present revision relates to the taxability of metallic measuring tape. According to the dealer/opposite party (hereinafter referred to as "Dealer") it was not liable to tax being survey instrument under the notification No. ST-11-3714/X-6(1)-85 U.P. Act-15/48-Order-85 dated 05.06.1985 while the case of the department is that it is not a survey instrument.
3. Dealer was carrying on the business of calculators and metallic measuring tapes. Metallic measuring tape had been claimed as survey instrument and non-taxable under Notification No. ST-II-3714 X-6(1)-85 U.P. Act-15/48-Order-85 dated 05.06.1985. The claim of the dealer has not been accepted and it had been assessed as an unclassified item. First appellate authority has also rejected the claim of the dealer Dealer filed second appeal before the Tribunal. Tribunal allowed the appeal and accepted the claim of the dealer so far as metallic measuring tape is concerned. Tribunal has held that. metallic measuring tape is used for technical education and for the measurement of distances at the time of survey and accordingly, held exempted from tax under the notification No. ST-II-3714/X-6(l )-85 U.P. Act-15/48-Order-85 dated 05.06.1985.
4. Heard learned counsel for the parties
5. Learned Standing Counsel submitted that metallic measuring tape r- normally used by carpenters or by the mason for the measurement of the small distances and not for measuring of long distances at the lime of survey. Me submitted that in a survey the plastic coated cloth measuring tape is used for measurement He further submitted that the dealer is not dealing with the items like scientific, mathematical survey mechanical, drawing and biological instrument an apparatus. He submitted that in common parlance and in commercial sense metallic measuring tape is not known as survey instrument.
6. I have perused the order of Tribunal and the authorities below.
7. The entry of notification No. ST-II-3714/X-6(1)-85 U.P. Act-1 5 48-Order-85 dated 05.06.1985 reads as follows:
In exercise of the powers under Clause (a) of Section 4 of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. l of 1904), the Governor is pleased to make, with effect from June 6, 1985, the following amendments in Government notification No. ST-2-7()38/X-7(23)-83-UP. Act XV/48-Order-85, dated January 31, 1985:
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37- Maps, educational charts, instrument boxes, A educational boxes, educational globes and scientific, mathematical survey, mechanical drawing and biology instruments and apparatus including drawing scales, dusters, drawing boards, T squares, eraser and lead pencils.
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8. First appellate authority has held that in the survey plastic coated Cloth-measuring tape is used for measurement of long distances while from the metallic tape the measurement of the long distance cannot be taken and is being used mainly by the karigars manufacturing furniture etc. This finding of the first appellate authority has not been considered and set aside by the Tribunal. Tribunal without any basis and material on record has held that the metallic measuring tape is required for the measurement of distances during survey. This view of the Tribunal is based on no material. Normally metallic measuring tape is required to measure the short distances and is being used by the karigars like carpenters etc. In the survey, normally long distances are measured, which is not possible by the metallic measuring tape. Normally, long distances are only measured by measuring tape made of plastic coated cloth. In common parlance also metallic measuring tape is not known as survey instrument. Dealer could not adduce any evidence to prove that it is survey instrument In this view of the matter order of the Tribunal is liable to be set aside.
9. In the result, revision is allowed. Order of the Tribunal is set aside