JUDGMENT Rajes Kumar, J.
1. The present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as the 'Act') is directed against the order of Tribunal dated 06.01 1999 relating to assessment year 1988-89 Applicant was a Civil Contractor and executed a works contract awarded by Public Works Department for construction of a Dam (Bandh) on the river Ganga. During the year under consideration, applicant had received a sum of Rs. 68,71,764/-. It was claimed that the nature of the works performed was a works contract in which Stone Boulders were used and such Stone boulders, were purchased from U.P. Forest Corporation. Kumayun, Tanakpur. therefore, the value of the Boulders were not liable to tax The Assessing Authority levied tax on the turnover of Rs. 51,91,664/- on the deemed sales of Stone Boulders. Before the First Appellate Authority, apart from the claim that the Boulders used in the execution of works contract, purchased from U. P. Forest Corporation, were not liable to tax. Form 3-D were submitted and claimed benefit of concessional rate of tax. The First Appellate Authority, estimated the turnover of Stone/Boulders at Rs. 46,00,000/- and allowed the benefit of concessional rate of tax against Form 3-D of the Act. Aggrieved by the order of the Assistant Commissioner (Judl.), Trade Tax, Bareilly dated 30.4.1993, applicant as well as the Commissioner of Trade Tax filed appeals before the Tribunal. The Tribunal by the impugned order, rejected the appeal of the applicant and partly allowed the appeal of Commissioner of Trade Tax The Tribunal has up held the estimate of turnover of Boulders at Rs, 46,00,000-. but has disallowed the claim of the concessional rate of tax against Form 3-D and sustained the levy of tax @ 6.6%.
2. Heard Sri Bharat Ji Agarwal learned Senior Advocate assisted by Sri K. Saksena appearing on behalf of the applicant and Sri U.K Pandey. learned Standing Counsel
3. Learned Counsel for the applicant submitted that the contract was for supplying and laying of Stone Boulders and such works contract was not liable to tax because, it was not covered within the 15 works contract specified under the Notification dated 27.4.1987. He submitted that in the Notification, the works contract in the nature of supplying and fixing of Stone boulders is specified and not the laying of Stone, thus, the Boulders used in the works contract was not liable to tax. He further submitted that the Stone Boulders were purchased from U.P. Forest Corporation, therefore, they were not liable to tax It has been further submitted that the Tribunal has erred in denying the claim of concessional rate of tax against Form 3-D under Section 3-G of the Act
4. Learned Standing Counsel submitted that the contract was for construction of Bandh near the river Ganga. which included the supplying and laying of Boulders. thus, it is not correct to say that the contract was simply for supplying and laying of Boulders. He submitted that in the Schedule of the Notification Construction of Bandh is one of the specified works contract He submitted that in the order of the First Appellate Authority it is clearly mentioned that the Counsel argued that the contract was for construction of Bandh a indivisible works contract. In ground no 1 of the grounds of appeal, it was also stated that the applicant was a building contractor Before the Tribunal also Counsel argued that the contract was for construction of a Bandh and in the execution of such contract works of supplying and laying of Stone/Boulders was executed He submitted that at no stage it was submitted that the works contract executed by the applicant was not covered under the Notification dated 27.4.1987, thus, the argument raised by file Counsel for the applicant is misplaced. He submitted that the applicant was failed to prove that the Boulders were purchased from UP Forest Corporation. He submitted that the Boulders were purchased from the Truck owner and Raw anna, which were produced, relates to the payment of royalty and not the payment of tax. He submitted that in Section 3-G by U.P. Act No. 8 of 1992 with effect from 17.3.1992, "Section 3-F of the Act" has been added, therefore, for the period prior to 17.3.1993, benefit of concessional rate of tax under Section 3-G of die Act was not available in respect of transaction covered under Section 3-F of the Act
5. Learned Counsel for the applicant while replying to the submissions of learned Standing Counsel submitted that even without the amendment in Section 3-G of the Act. the applicant was entitled for the benefit of concessional rate of tax under Section 3-G of the Act.
6. Having heard learned Counsel for the parties and perused the order of Tribunal and the authorities below
7. I do not find any substance in (he argument of learned Counsel for the applicant The submission of learned Counsel for the applicant that the works contract executed by the applicant was not covered under 15 works contract mentioned in the Notification dated 27 4.1987. therefore. Boulders supplied in the execution of works contract, was not liable to tax. is misconceived. The works contract awarded by Public Works Department to the applicant was the construction of Bandh on river Ganga and in the execution of such contract, Boulders were supplied and laid down. The construction of Bandh is o contract mentioned at serial No. 6 which reads as follows:
Civil works like construction of buildings, bridges, roads, dams, barrages, sewyas, spillways and diversions.
8. Applicant had not raised such plea at any stage and therefore, plea this stage, is wholly misplaced. It was the case of the applicant all alone works contract was for construction of Dam on the river Ganga, indivisible works contract. Under Section 3-F, the value of the goods in the execution of works contract is liable to tax. Notification No. ST-II 9(195)-85- U.P. Act/XV/48-Order-87, dated 27.4.1987 provides that the goods shall be liable to tax at the rate specified in the relevant Notification provided to the said goods issued under Section 3-A or Section 3-D of the Act. Section 3-F and the Notification No. ST-II-2399/X-9(195)-85-U.P. Act/XV/48-Order-87, 27.4.1987 reads as follows:
Section 3-F- Rate of tax on the right to use any goods or goods involved in the execution of a works contract.
Notwithstanding anything contained in Section 3-A, or Section 3-AAA or Section 3-D or Section 3-G, the turnover relating to the business of transfer of the right to use any goods for any purpose or of transfer of the property in goods involved in the execution of a works contract shall be determined in the manner prescribed and shall be liable to tax at such rate not exceeding fifteen per cent, as the State Government may, by notification, declare, and different rates may be declared for different goods or different classes of dealers.
Notification No. ST-II-2399/X-9(195)-85-U.P. Act/XV/48-Order-87, dated 27.04.1987lished in U.P. Gazette, dated 27.4.1987 In exercise of the powers under Section 3-F of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), the governor is pleased to declare that, with effect from May 1, 1987, every dealer to whom Sub-section (3) of Section 3 applies and every other dealer, liable to tax under the aforesaid Act, the aggregate of whose turnover in a year relating to the business of transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract specified in column 2 of the Schedule hereunder exceeds one lakh rupees, shall in respect of such turnover, which shall be determined in the manner specified in rule 44-8 of the Uttar radish Sales Tax Rules, 1948, be liable to tax at the rate specified in the relevant notification relating to the said goods issued under Section 3-A or Section 3-D of the aforesaid Act.
SCHEDULE
--------------------------------------------------------------
9. Admittedly, boulders were used in the execution of works, contract, therefore, its value was liable to tax at the rate specified under the Notification issued under Section 3-A. The Notification No. ST-II-5785/X-10(l)-80- U.P. Act XV/48-Order-81, dated 7.9.1981 provides 6% tax on Stone Ballast. It reads as follows:
In exercise of the powers under the proviso to Clause (e) of Sub-section (1) of Section 3-A of the U. P. Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with Section 21 of the U. P. General Clauses Act, 1904 ( U. P. Act No. 1 of 1904), and in supersession of all previous notifications issued under the proviso to Sub-section (2-A) of Section 3-A of the said Act as it stood before its amendment by the U. P. Sales Tax (Amendment and Validation) Ordinance, 1981 (U. P. Ordinance No. 12 of 1981), the Governor is pleased to order that with effect from September 7, 1981, the turnover in respect of the goods specified in column 2 of the list below shall be liable to tax at the point specified in column 3 of the reduced rate specified against each in column 4 thereof:
List.
----------------------------------------------------------------------
10. Section 3-F (2) (b) provides deductions of value of the goods mentioned in. Clauses (i), (ii) and (iv). Clause (iv) is only relevant in the present case. It provides deduction of value of goods, provides amount representing the value of the goods on the sale or purchase whereof, tax has been levied or is leviable under this Act at some earlier stage. In the present case, applicant was not able to prove that the tax had been levied on the Boulders or is leviable under this Act at some earlier stage. Applicant failed to prove that he had purchased these Boulders from U. P. Forest Corporation. A similar question came up for consideration for the assessment year 1989-90 in Trade Tax Revision No. 153 of 1999 Jagdish Sharan Agarwal, Building Contractor, Tilhar, Shahjahanpur v. Commissioner of Trade Tax, U.P. Lucknow. This Court rejected the plea of exemption on the turnover of Boulders. This Court held as follows:
The first contention of the revisionist is that the stone Boulders were purchased by him from the U. P. Forest Corporation to whom sales tax had been paid and since no declaration in Form 3-A were issued by him to the Forest Corporation, the sale by the Forest Corporation to the revisionist could be treated as sale to consumer and the tax was leviable on the Forest Corporation who had already charged tax on the sales. The Tribunal has held that the purchase of stone boulders by the dealer from the U. P. Forest Corporation is not established. This is a finding of fact. The revisionist had placed a movement slip called 'nikasi revanna' which has been placed at page 40 of the paper book and is in the name of a truck driver Sharvan Kumar and the name of the purchaser is mentioned as Prakash Chandra Sharma. The amount charged for the removal of the boulders is mentioned as royalty. Thus, this document does not establish the reivisonist's contention that he had purchased boulders, that were supplied to the P. W. D., from the Forest Corporation.
As regards, charging of tax on the removal of boulders by the Forest Corporation was concerned, the Tribunal held that the Boulders were not sold by the Corporation. They were on the other hand, mined by the persons concerned from the river bed and before their removal were immovable property and hence, there was no sale of goods on which the Corporation has charged tax and, therefore, the payment of any tax to the Corporation does not mean that the Boulders had suffered sales tax. In my view, the view taken by the Tribunal is plausible one. In Bherulal v. State of Rajasthan A. I. R. 1956 Rajasthan, 161 it was observed that royalty is charged by the owner of minerals from those to whom he gives the concession to remove them. No authority has been cited by the learned Counsel for the revisionist to show that when mining operation is done for mining stone, sand etc. and royalty is paid to the owner of the mines, their results in sale of goods taxable under the U. P. Trade Tax Act.
Under the U. P. Sales Tax Act (now U. P. Trade Tax Act) the word 'manufacture' has been defined to mean, inter alia, mining collecting and extracting any goods. Thus, mining or collecting or extracting of stones amounts to manufacture and the person who does so become manufacturer and the sale by him of the goods so extracted will be taxable when the sale is made to a consumer. Such person cannot himself be a consumer and liable to pay tax to the Forest Corporation. In other words, a person cannot be a manufacturer as well as purchaser of the same goods unless the manufacture be on behalf of some one else from whom he purchases goods. In my view, therefore, the Tribunal was right in taking the view that it was not established that the dealer purchased the goods from Forest Corporation or they had already suffered trade tax and, therefore, on this aspect of the matter the Tribunal's order does not suffer from any illegality.
11. Now coming to the last issue relating to the benefit of concessional rate of tax under Section 3-G of the Act against Form 3-D. It is useful to refer the Section 3-G of the Act.
Section 3-G Special rate of tax on certain sales-
(1) Notwithstanding anything contained in Section 3-A or Section 3-D, and subject to the provisions of Sub-section (2) and such conditions and restrictions, if any, as may be specified by the State Government by notification, the tax on the turnover of sales of goods to a department of the Central Government or of a State Government or to a Corporation or Undertaking established or constituted by or under a Central Act or an Uttar Pradesh Act, or to a Government as defined in Section 617 of the Companies Act, 1956 (not being a Nagar Mahapalika, Municipal Board, Zila Parishad, Town Area Committee, Notified Area Committee, Cantonment Board, a University or an educational Institution or an Institution managed for the time being by an authorized controller) shall, if the dealer furnished to the Assessing Authority a declaration obtained from such Department, Corporation, Undertaking or Company in such form and manner, and within such period, as may be prescribed, be levied and paid at the rate for the time being specified in Sub-section (1) of Section 8 of the Central Sales Tax Act, 1956, or at such rate as the State Government may, by notification, specify in relation to any sales, unless the goods are taxable under any other section of this Act at a rate lower than the said rate.
(2) The provisions of Sub-section (1) shall not apply to the sale of any goods which are purchased by such Department, Corporation, Undertaking or Company for re-sale or for use in the manufacture or packing of any goods, other than electrical energy for sale, or if such Department, Corporation, Undertaking or Company has no office or establishment situated in Uttar Pradesh.
(3) Such Department, Corporation, Undertaking or Company shall furnish to such dealer the declaration referred to in Sub-section (1) within two months of the purchase of goods, and if it fails to do so, or if after purchasing the goods against the declaration referred to in Sub-section (1), any such Department, Corporation, Undertaking or Company does not put them to use for its own requirements but uses or disposes of the same either in the manner mentioned in Sub-section (2) or otherwise, such Department, Corporation, Undertaking or Company shall, without prejudice to any other action, inpluding the imposition of penalty, that may be taken under this Act, be liable to pay as purchase tax an amount equal to the difference of tax calculated at the rate otherwise applicable to the sale of such goods under this Act and that applicable under Sub section (1).
12. In Section 3-G, Section 3-F has been added by U. P. Act No. 8 of 1992 with effect from 17,3.1992. Prior to 17.3.1993, Section 3-G has a over riding effect over Section 3-A and 3-D only, and not over Section 3-F. As per the Notification dated 27.4.1987, value of the goods used in the execution of works contract was liable to tax at the rate specified under the Notification issued under Section 3-A, therefore, rate of tax applicable was 6% on the Stone under the Notification No. ST-II-5785/X-10(l)-80- U.P. Act XV/48-Order-81, dated 7.9.1981 Section 3-G is a special provision provides concessional rate of tax. Unless Section 3-G over ride the provisions of the Act, the benefit of concessional rate of tax cannot be given. Section 3-F is an independent charging Section, provides levy of tax on the value of the goods involved in the execution of works contract, therefore, unless Section 3-F is made subject to Section 3-G the benefit of concessional rate of tax under Section 3-G of the Act is not available. In other words unless, Section 3-G over rides Section 3-F, the benefit of concessional rate of tax cannot be allowed in respect of levy of tax under Section 3-F. In the present case, tax had been levied under Section 3-F of the Act. Prior to 17.3.1993, Section 3-F was not subject to Section 3-G, therefore, for the period prior to 17.3.1993, Section 3-G was not applicable to the levy of tax under Section 3-F of the Act.
13. For the reasons stated above, revision has no merit and is liable to be dismissed.
14. In the result, revision fails, and is, accordingly, dismissed.