JUDGMENT Rajes Kumar, J.
1. These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as 'Act') are directed against the order of Tribunal dated 28.05.1999 relating to assessment years 1992-93 both under the U.P. Trade Tax Act as well as under the Central Sales Tax Act.
2. Applicant is a Society registered under the provisions of the Societies Registration Act and is also registered under the U.P. Trade Tax Act as well as under the Central Sales Tax Act. Applicant is engaged in the manufacture and sales of Generators since 01.12.1992. It is certified by the U.P. Khadi and Gramodyog Board, Lucknow vide Certificate dated 10.12.1992.
3. Applicant claimed exemption on its product from the payment of trade tax under the Notification No. ST-II-7037/X-7 (23)/83-U.P. Act 15-48-Order-85, dated 31.1.1985. The Assessing Authority passed assessment orders both under the U.P. Trade Tax Act as well as under the Central Sales Tax Act and declared the turnover non taxable. The Deputy Commissioner (Executive) initiated a proceeding under Section 10-B of the Act on the ground that under the Notification No. ST-II-7037/X-7 (23)/83-U.P. Act 15-48785 dated 31.1.1985, the items of "Black smithy" is only exempted from tax and Generator does not come within the purview of "Gold Smithy" item. After giving opportunity to the applicant, orders under Section 10-B of the Act were passed and tax on the turnover of Generator was assessed to tax both under the U.P. Trade Tax Act as well as under the Central Sales Tax Act. Applicant filed appeals before the Tribunal. The Tribunal by the impugned order dismissed the appeals, 1 he Tribunal held that the applicant was not able to establish that it had a power connection of less than 10 Horse Power. It has been further held that the Generator does not come within the item of "Black Smithy".
4. Heard learned Counsel for the parties.
5. Learned Counsel for the applicant submitted that neither the Assessing Authority nor the Deputy Commissioner (Executive) have disputed that it had a electricity connection for more than 10 horse power. Thus, the view of the Tribunal in this regard is erroneous. He further submitted that the Black Smithy items are not confined to small item only made by hand, but even subsequent Notification No. ST-1224/XI-9 (94)/91 U.P. Act 15-48- Order-92 dated 31.3.1992, allowed the exemption to the Unit using power less than 10 horse power. Thus, even goods manufactured by using power, had been exempted under the notification. He submitted that the General Manager, District Industries Centre, Agra issued a Certificate dated 19.12.1992 certifying the applicant Unit involved in the manufacturing of energy equipment as one of the item of Black Smithy. He submitted that vide Circular dated 18,10.1993, manufacturing of boxes and Almirah by using electricity up to 10 horse power has been held eligible for the exemption. He submitted that the Generator is a product of an iron and therefore, falls under the entry "Black Smithy". In support of his contention, he relied upon the decisions of this Court in the cases of Multani Gramudyog Vikas Sansthan, Bijnor v. Commissioner of Sales Tax reported in 1995 UPTC page 914 and Loh Evam Kast Kala Udyog Suhkari Samiti Ltd., Etawah v. Sales Tax Tribunal, Kanpur reported in 1995 UPTC page 848 and 1997 (10) NTN page 145 and Commissioner of Trade Tax v. Rashtriya Audyogik Sansthan, Agra reported in 2005 UPTC page 1013. Learned Standing Counsel submitted that the applicant was not able 10 prove that it was having electricity connection of less than 10 horse power. He submitted that under the Notification "Black Smithy" includes the item made of iron mainly by hand. Initially vide Notification No. ST-II-7037/X-7 (23)/83- U.P. Act 15-48-Order-85, dated 31.1.1985 only the items manufactured by those Unit were exempted which were not using power, though vide Notification No. ST-1224/X1-9 (94)/91 U.P. Act 15-48- Order-92 dated 31.3.1992 the Unit using power less than 10 horse power has also been allowed exemption, but the genesis is to cover only those items which are mainly made by hand. He submitted that in any view of the matter, items of "Black Smithy" do not include these items, which are big items manufactured by assembling various parts like Generator.
6. Having heard learned Counsel for the parties and have perused the order of the Tribunal and the authorities below.
7. It is useful to refer the entry "Black Smithy" of Notification No. ST-II-7037/X-7 (23)/84-U.P. Act 15-48-Order-85, dated 31.1.1985:
In exercise of the power under Clause (b) of Section 4 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 (Act No. 1 of 1904), and in supersession of all previous Notifications issued under the aforesaid clause, the Governor is pleased to exempt, with effect from February 1, 1985, the sales or purchase of the goods mentioned in column 2 of the Schedule hereunder by the persons or the class of persons mentioned therein, from tax under the said Act of 1948, subject to the conditions, if any, specified in column 3 thereof (S Nos. 35, 58).
8. The aforesaid Notification has been amended vide Notification No. ST-1224/XI-9 (94)/91 U.P. Act 15-48- Order-92 dated 31.3.1992:
In exercise of the powers under Clause (b) 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. 1 of 1904), the Governor is pleased to make, with effect from April 1, 1992, the following amendment in the Schedule to the Government Notification No. ST-2-7037/X-7-(23)/84-U.P. Act 15-48-Order-85, dated 31.1.1985:
AMENDMENT In the Schedule to the aforesaid notification, in Serial No. 3 in the list:
(1) For the herns (17), (18) and (22) to following items shall be substituted:
9. "Black Smithy" has not been defined under the Act. It has not been defined in the dictionary also, but "Black Smith" is defined in the dictionary, thus, it is useful to refer the definitions of "Black Smith" as defined under the various Dictionary:
New Webster's Dictionary of the English language:
Defines Black Smith- One who works in iron and makes iron utensils;
Random House Dictionary of the English Language:
Defines Black Smith-(1) a person who makes horseshoes and shoes horses (2) one who forges objects of iron.
The New Lexicon Webster's Dictionary of the English Languages:
Defines- Black Smith- a man who works iron in a forge, shoes horses etc.
10. The above Notification granted exemption to the Institutions established in a rural area involved in the manufacturing of items of Cottage Industries for the development of the rural area. The "Black Smith" known as Lohar are the person commonly engaged in the manufacturing of small items made of iron like Tawa. Karhai, Almirah, boxes, various agricultural implements etc. which are mainly made by hand skill and for some purpose requires electricity. Thus, ''Black Smithy" items mainly includes small items for domestic uses and agricultural implements etc. manufactured by hand skill and does not include an item like Generator, which is manufactured by assembling of various parts manufactured in big machines. Admittedly, the applicant had purchased various parts of Generator and by assembling them, manufactured the Generator. In common parlance and in commercial sense, Generator are not known as a "Black Smithy" items. Thus 1 am of the view that the Generator does not fall within the "Black Smithy" items.
11. In the case of Loh Evam Kust Kala Udyog Sahkari Samiti Ltd., Etawah v. Sales Tax Tribunal, Kunpur (supra), dealer was involved in importing of Kolhoos and after necessary conversion, sold them as power driven Kolhoos. Exemption has been disallowed by the Tribunal on the ground that it was not "Black Smithy" goods. This Court has confirmed the order of the Tribunal.
12. In the case of Multani Gramudyog Vikas Sansthan, Bijnor v. Commissioner of Sales Tax (supra), dealer was involved in the manufacturing of agricultural implements and certain items used in the Kitchen such as Tawa. Karhai etc. The Tribunal has rejected the chum of exemption on the ground that the Kitchen items would not be covered under the item No. 17 which relates to "Black Smithy". This Court held the view of the Tribunal erroneous and held as follows:
As regards the Tribunal's view that item No. 17 would cover only very small instruments, the same too is incorrect. The notification mentions blacksmithy and carpentry not involving the use of power. The size of the instruments manufactured by the process of blacksmithy and carpentry is totally irrelevant, as the notification has not placed any restriction thereon. Therefore, even huge things like the Howrah Bridge, will be covered under item No. 17 if it is manufactured by the process of blacksmithy without the use of power. The notification does not also restrict the item manufactured to agricultural and kitchen implements. It covers everything if it is manufactured by blacksmithy without the use of power.
13. In this view of the matter, 1 do not find any error in the order of the Tribunal in this regard. However, I do not endorse the view of the Tribunal that the dealer failed to prove that it had a power connection less than 10 horse power. Perusal of order of the Deputy Commissioner (Executive) under Section 10-B of the Act shows that no such ground has been taken.
14. In the result, both the revisions fail, and are, accordingly, dismissed.