JUDGMENT Rajes Kumar, J.
1. Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 09.09.1999 for the assessment year 1994-95 under the Central Sales Tax Act (hereinafter referred to as "Central Act)
2. Applicant was carrying on the business of electronics goods. For the assessment year 1994-95, applicant disclosed the taxable inter-State sales at Rs. 15.01.9747-. The dispute relates to the rate of tax on the turn over of Rs. 1,45,000 -. It was assessed to tax @ 10% whereas the applicant had admitted the liability of tax @ 4% under the notification No.TT-II-3407/XI-9(116)-94-Act-74/56-Order-94, dated 01.10.1994. In respect of the aforesaid sales Form 'C' was not furnished but in view of the aforesaid notification, issued in exercise of powers under Section 8(5) of the Central Act even in the absence of Form 'C' it is claimed to be taxable (a) 4%, According to the assessing authority, the notification No.TT-II-3407/XI-9(116)-94-Act- 74/56-Order-94, dated 01.10.1994 issued in exercise of powers under Section 8(5) of the Act is not applicable to the applicant case, in as much as it was applicable to the goods liable to tax @ 4% under U.P. Trade Tax Act while the electronic:, goods was liable to tax @ 4% + 1% surcharge, i.e. 5%. This view of the assessing authority has been upheld in first appeal as well as in second appeal.
3. Heard learned Counsel for the parties.
4. Learned Counsel for the applicant submitted that for the purpose of notification No.TT-II-3402/XI-9(116)-94-Act-15/48-Order-94, dated 01.10.1994 rate of tax provided under Section 3A, 3-D is relevant. He submitted that Section 3-A which provides the payment of additional tax is over and above the tax payable @ provided under the notification issued under Section 3-A of the Act but it does not itself provided rate of tax. He submitted that in the notification No.TT-II-3407/XI-9(116)-94-Act-74/56-Order-94, dated 01.10.1994, issued under Section 8(5) of the Act the word used are "goods liable to tax at the rate of 4% under the U.P. Trade Tax Act" He submitted that under Section 3-E of the Act additional tax is payable over and above the tax payable as per rate of tax provided under the notification issued under Section 3-A of 3-D of the Act, and thus, the additional tax is not payable being a rate of tax and hence can not be considered for the purpose of the notification. Thus, in respect of the electronics goods, which is liable to tax @ 4% under the notification No. TT-2-3402/XI-9(116)/94-U.P.Act-15/48-Order-94, dated 01.10.1994 issued in exercise of powers under Section 3-A of the Act., Notification No.TT-II-3407/XI-9(116)-94-Act-74/56-Order-94 issued under Section 8(5) of the Act is applicable. He further submitted that in subsequent notification No.TT-2-1477X1-9(116)/94-Act-74/56-Order-95, dated 31.01.1995 issued under Section 8(5) of the Act, it has been clarified that rate of tax @ 4% means excluding the additional tax. Learned Standing Counsel submitted that Section 2(n) of the Act defines tax, which includes additional tax. He submitted that in notification No.TT-IJ-3407/XI-9(116)-94-Act-74/56-Order-94, dated 01.10.1994 "rate of tax" means rate of tax under the notification issued under Section 3-A of the Act and additional tax under Section 3-E of the Act and if tax payable under the notification issued under Section 3-A of the Act and the additional tax under Section 3-E of the Act are taken, total tax comes to 5%, which is more than 4%, thus, the notification No.TT-Il-3407/Xl-9(116)-94-Act-74/56-Order-94, dated 01.10.1994 is not applicable. He submitted that in the subsequent notification No.TT-2-147/XI-9(116)/94-Act-74/56-Order-95, dated 31.01.1995 additional tax has been specifically excluded, it means that for the period prior to 31.01.1995 additional tax was included in rate of tax.
5. Having heard learned Counsel for the parties, I have perused the order of Tribunal and the authorities below.
6. Section 3-A, 3-D and 3-E of the Act reads as follows:
[3-A. Rate of tax. -(1) Except as provided in Section 3-D, the tax payable by a dealer under this Act shall be levied,-
[(a) on the turn over in respect of declared goods, at the point of sale to the consumer at the maximum rate for the time being specified in Section 15 of the Central Sales Tax Act, 1956 or where the State Government, by notification, declares any other single point or a lesser rate, at such other point or at such lesser rate]:
(b) on the turnover in respect of any food or drink served for consumption in a hotel or restaurant or part thereof, with which a cabaret or floor show is provided therein, at such rate, not exceeding forty percent, as the State Government may, by notification, declare;
(c) on the turnover of spirits and spirituous liquors of all kinds including methyul alcohol and motor spirit, diesel oil and alcohol as defined under the United Provinces Sales of Motor Spirits, Diesel Oil and Alcohol Taxation Act, 1939, at such point and at such rate not exceeding twenty-six percent, as the State government may, by notification, declare:
Provided that no tax shall be levied on any goods under this clause if tax is payable on purchase or sale of such goods, under any other Uttar Pradesh act for the time being in force];
[C-1) on the turnover of lottery tickets as such point and at such rate not exceeding twenty percent as the State Government may, by notification declare;]
(d) on the turnover in respect of goods specified in the Schedule, at such point and at such rate, not exceeding fifteen percent, as the State Government may, by notification, declare, and different points and different rates may be declared in respect of different goods comprised in any entry in the said Schedule:
Provided that the State Government may, by notification, omit the entry relating to any goods from the Schedule and may, in the like manner, restore any entry so omitted, and upon the issue of any such notification or restoring any entry, the said Schedule shall subject to the provisions of Sub-section (2), be deemed to be amended accordingly;
(e) on the turnover in respect of goods other than those [referred to in Clauses (a), (b), (c), (c-1) and (d) at the point of sales by the manufacturer or importer at the rate of eight percent:
Provided that the State Government may, from time to time, by notification modify the rate or point of tax on the turnover in respect of any such goods, with effect from such date as may be notified in that behalf, so, however, that the rate does not exceed eight percent.
(2) Every notification made under this section shall, as soon as may be after it is made, be laid before each house of the State Legislature, while it is in session, for a total period of not less than fourteen days, extending in its one session or more than one successive sessions, and shall, unless some later date is appointed, take effect from the date of its publication in the Gazette subject so such modifications or annulments as the two houses of the Legislature may during the said period agree to make, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done there under except that any imposition, assessment, levy or collection of tax or penalty shall be subject to the said modification or annulment].
3-D. [Levy of trade tax on purchase or sale of certain goods. -
[(1) Except as provided in Sub-section (2), there shall be levied and paid, for each assessment year or part thereof, tax on the turnover, to be determined in the prescribed manner,-
[(a) of first purchases of opinion, at such rate not exceeding twenty-six); (b) of first purchases of such other goods, at such rate not exceeding
(i) the maximum rate for the time being specified in Section 15 of the Central Sales Tax Act, 1956 (Act 74 of 1956), in respect of goods declared by Section 14 of that Act to be special importance in inter-State trade or commerce, and
(ii) (fifteen percent) in respect of other goods, and with effect from such date, as the State Government may, by notification in the Gazette, specify in relation to purchases made within Uttar Pradesh by a dealer (whether on his own account or on account of any one else), or through a dealer acting as a purchasing agent:
[Provided that such tax on the turnover of first purchase of mentha herb, shall be levied and paid at the rate of seven percent, or at such rate not exceeding fifteen percent as the State Government may, by notification, declare).
3-E. Additional tax on certain dealers.
(1) Every dealer liable to pay tax under this Act, the aggregate of whose turnover, as referred to in Sub-section (2) of Section 3, exceeds ten lakh rupees in any assessment year shall, in addition to the tax payable under any other provision of this Act, be liable to pay an additional tax calculated at the rate of five percent of the tax payable by him for that assessment year under the other provisions of this Act:
Provided that in calculating the additional tax payable by the dealer, the tax payable under the other provisions of this Act in respect of sales or purchase of declared goods shall not be taken into consideration.)
7. It would be relevant to quote notification No.TT-II-3407/XI-9(116)-94-Act-74/56-Order-94, dated 01.10.1994 and notification No.TT-2-147/XI-9(116)794-Act-74/56-Order-95, dated 31.01.1995, both issued under Section 8(5) of the Act and the notification No.TT-2-3402/XI-9(116)/94-U.P. Act-15/48-Order-94, dated 01.10.1994 issued under Section 3-A of the Act.
8. Notification No.TT-2-3407/XI-9(116)/94-Act-74/56-Order-94, dated 01.10.1994 [Published in U.P. Gazette, dated 1.10.1994] WHEREAS, the State Government is satisfied that it is necessary so to do in public interest;
Now, therefore, in exercise of the powers conferred by Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (Act No. 74 of 1956), the Governor is pleased to direct that with effect from October 1, 1994, the tax payable under Sub-section (1) and (2) of the said section by any dealer having his place of business in the State of Uttar Pradesh in respect of the sales made by him from any such place of business in the course of inter-State trade or commerce, of the goods liable to tax at the rate of four per cent, under the Uttar Pradesh Trade Tax Act, 1948, shall be calculated at the same rate without furnishing the declaration in form 'C' or certificate in form 'D' Notification No.TT-2-3402/XI-9(116)/94-U.P.Act-15/48-Order-94, dated 1.10.1994 [Published in U.P. Gazette, dated 1.10.1994] In exercise of the powers under Clause (d) of Sub-section (1) of Section 3-A of the Uttar Pradesh Trade Tax Act, 1948 (U.P. Act No. 15 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 October 1, 1994, the following amendment in Government Notification No.ST-II-5784/X-10(1)/80-U.P.Act-15/48-Order-81, dated September 7, 1981, as amended from time to time:
AMENDMENT In the Schedule to the aforesaid notification:-
(i) in the entry at serial No. 1, in the column 4, for the figures and word "14 per cent.", the figures and word g12 per cent." Shall be substituted.
(ii) for entry at serial No. 6-A, in Clause (b) in column 4, for the figure and word "8 per cent.", the figure and word "4 per cent." Shall be substituted.
(iii) in the entry at serial No. 7, for Clause (c), the following clause columnwise shall be substituted, namely:-
NOW, THEREFORE, in exercise of the powers under Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (Act No. 74 of 1956), read with Section 21 of the General Clauses Act, 1897 (Act No. 10 of 1897), the Governor with effect form the date of publication of this notification in Official Gazette, is pleased to make the following amendment in Government Notification No.TT-2-3407/X 1-9(116)/94-Act-74/56-Order-94, dated October 1, 1994:
AMENDMENT In the aforesaid notification for the words "the tax payable under Sub-section (1) and (2) of the said section by any dealer having his place of business in the State of Uttar Pradesh in respect of the sales made by him from any such place of business in the course of inter-State trade or commerce, of the goods liable to tax at the rate of four per cent, under the Uttar Pradesh Trade Tax Act, 1948, shall be calculated at the same rate without furnishing the declaration in Form 'C1 or certificate in Form 'D', the words "the tax payable, under Sub-section (2) of the said section by any dealer having his place of business in the State of Uttar Pradesh in respect of the sales made by him from any such place of business in the course of inter-State trade or commerce of the goods liable tot ax at the rate of four per cent, (excluding additional tax) under the Uttar Pradesh Trade Tax Act, 1948, shall be calculated at the rate of four per cent, without furnishing the declaration in Form 'C' or certificate in Form 'D' shall be substituted.
9. The "electronics goods" which is subject to dispute is undisputedly liable to tax under the heading "All other electronics goods" of notification No.TT-2-3402/XI-9(116)/94-U.P.Act-15/48-Order-94, dated 01.10.1994, issued under Section 3-A of the Act @ 4%. In addition to the tax payable @ 4%, applicant was also liable to pay 1% additional tax under Section 3-E of the Act. Question for consideration is whether for the purpose of notification No.TT-II-34077X1-9(116)-94-Act-74/56-Order-94, dated 01.10.1994 issued under Section 8(5) of the Act "rate of tax" means rate of tax provided under the notification issued under Section 3-A of the Act only or additional tax under Section 3-E of the Act also to be considered. If the rate of tax provided under the notification, issued under Section 3-A of the Act is only relevant then the notification No.TT-II-3407/XI-9(116)-94-Act-74/56-Order-94, dated 01.10.1994 is applicable to the applicant case and the turn over of Rs. 1,45,000/- is liable to tax @ 4% and in case if the additional tax is also to be considered alongwith rate of tax provided under the notification issued under Section 3-A of the Act, the total tax exceeds 4% and the notification No.TT-II-3407/XI-9(116)-94-Act-74/56-Order-94, dated 01.10.1994 is not applicable and the disputed turn over is liable to tax @ 10%.
10. On conjoint reading of Section 3-A, 3-D and 3-E of the Act, I am of the view that the Section 3-E of the Act provides for the payment of additional tax at the rate of 1 percent on the tax payable, over and above the tax payable as per the notification It does not provide any rate of tax on the goods, while Section 3-A and 3 the notification issued thereunder referred hereinabove provides rate of tax on the goods. Thus, for the purposes of the notification dated 1.10.1994 issued under Section 8(5) of the Act referred hereinabove, the rate of tax on the electronic goods at the rate of 4 percent under the notification issued in exercise of powers under Section 3-A of the Act is relevant and since the total rate of tax under the U.P. Trade Tax Act. on the electronic goods is only 4 percent the aforesaid notification applies. The subsequent notification dated 31.1.1995 is clarificatory in nature and clarified that the rate of tax means excluding additional tax.
11. In the case of Pappu Sweets and Biscuits etc v. The Commissioner of Trade Tax reported in 1998 U.P.T.C. 1086, the Apex Court held that the subsequent notification is relevant to interpret the earlier notification. The subsequent notification dated 31.1.1995 appears to be clarificatory in nature to remove the doubts in the earlier notification and shows the intention of the legislature.
12. In the result, revision is allowed. Order of the Tribunal is set aside and it is held that the turnover of Rs. 1,45,0007- was liable to tax at the rate of 4 percent under Notification dated 1.10.1994 issued under Section 8(5) of the Central Sales Tax Act.