TaxTMI 
TaxTMI 
2003 (3) TMI 680
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.... water pump, diesel engine and diesel engine pumping sets. It had been claimed that all the aforesaid items were independent items sold independently in the market. In the present revisions, dispute relates to the taxability of diesel engine pumping sets. Assessing Authority had levied tax on the pumping sets at 8 per cent treating it as a machinery under the Notification No. ST-II-6627/X612-1972 dated December 1, 1973. First Appeal filed by the dealer was rejected. Dealer filed Second Appeal before the Tribunal which was allowed. Tribunal had held that the diesel engine pumping set is an agricultural implement and hence, it is liable to tax at 6 per cent (inclusive surcharge) and not as a machinery. Tribunal had relied upon the judgment of the Tribunal in Appeal No. 1185 of 1981 for the assessment year 1978-79, in which it had been held that the water pump and diesel pumping set were two different commodities and diesel pumping sets were liable to tax as a agricultural implements. Being aggrieved by the order of Tribunal, present revisions have been filed. 4.. I have heard Sri M.R. Jaiswal, learned Standing Counsel and Sri Bharat Ji Agrawal, learned Senior Advocate. 5.. Learned....
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....nd the order of Tribunal is liable to be set aside. 6. In reply, Sri Bharat Ji Agrawal, learned Senior Advocate submitted that the order of Tribunal for the assessment year 1978-79 has become final, inasmuch as, no revision has been filed against the said order and the Department had accepted the said order, in which, diesel engine pumping set has been held liable to tax as a agricultural implement and not Machinery. He submitted that the decision of the honourable Supreme Court in the case of State of U.P. v. Engineering Traders 1990 UPTC 838, the division Bench decisions in the case of Basant Industries v. Commissioner of Sales Tax [1975] 36 STC 209 (All.) and U.P. Agricultural Corporation, Aligarh v. State of U.P. 1987 UPTC 2164 are not applicable to the applicant's case in view of later judgment of the honourable apex Court in the case of dealer itself in Civil Appeal Nos. 475-78 of 1980 Sterling Machine Tools v. Commissioner of Sales Tax, U.P. decided on August 7, 1996, in which the judgment of the honourable single Judge in the case of assessee Sterling Machine Tools v. Commissioner of Sales Tax reported in [1979] 43 STC 72 (All.); 1978 UPTC 660 was set aside. He further su....
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....-1012-72 dated September 29, 1972 have been substituted by "Agricultural Implements other than Implements worked by human or animal power and water pump" and in the Notification No.ST-II-332/X-1012-971 dated November 15, 1971 and Notification No. ST-II-6627/X-1012-72 dated December 1, 1973 in Serial No. 52 the words "Machinery and spare parts of machinery" have been substituted by word "Machinery and spare parts of machinery including water pumps." The aforesaid Notification has been further amended vide Notification dated August 7, 1981. 11. The Notifications which were prevailing at the relevant time after amendment reads as follows: Agricultural Implements: Notification No. ST-II-6203/X-1012-1972 dated September 29, 1972. Amended with complete retrospective effect by Act No. 38 of 1975. "Agricultural Implements other than Implements worked by human or animal power and Water Pump, but including their parts and accessories other than Tyres and Tubes." 1.10.1972 to 6.9.1981 at 5 per cent M or I Notification No. ST-II-5785/X-10(1)/80 U.P. Act-15/48-Order, dated September 7, 1981. "Agricultural Implements other than Implements worked by human or animal power and water pump and p....
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.... UPTC 2164 have not considered the distinction between water pump and pumping set and had also not considered that by retrospective amendment only "water pump" was excluded and not "pumping set ". The decision of apex Court in Civil Appeal Nos. 475-478 of 1980 Sterling Machine Tools v. Commissioner of Sales Tax, U.P. decided on August 7, 1986 is the case of dealer itself and it in this case pumping set and water pump have been treated as two different items and it has been held that only water pump was excluded from agricultural implement and not pumping sets and the decision of this Court in the case of Sterling Machine Tools v. Commissioner of Sales Tax, U.P., reported in [1979] 43 STC 72; 1978 UPTC 660 has been set aside. 14.. The Apex Court held as follows: "The final fact finding authority, being the Additional Judge (Revision), Sales Tax, Gorakhpur, had come to the conclusion that the pumping sets in question were agricultural implements and taxable at the rate of 2 per cent as such. The question posed in relation to pumping sets it would have been noted, only asked whether they are liable to tax as machinery, i.e., under the residuary item No. 52 at the rate of 6 per cent ....
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....h Court in Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. AIR 1980 Kar 92, and by Calcutta High Court in Sovachand Mulchand v. Collector of Central Excise and Land Customs AIR 1968 Cal. 174. Thus, what follows is that in the event of there being clear conflict, the decision of such latter Bench would be binding on us. 24.. Counsel appearing for the petitioner submitted that since in Ram Saroop Rai's case 1980 All LJ 65 (SC) the earlier decision given in Ratan Lal Shinghal's case AIR 1980 SC 635 had not been cited, the decision being in ignorance of a case which was binding on the Court is per incuriam. Counsel urged that Ram Saroop Rai's decision 1980 All LJ 651 (SC), does not have a binding authority. We are unable to agree with the submission of the learned counsel for the petitioner. In Ballabhdas Mathuradas Lakhani v. Municipal Committee, Malkapur AIR 1970 SC 1002, the Supreme Court held that a Supreme Court's judgment is binding on High Court and it cannot be ignored on ground that relevant provision was not brought to the notice of the Supreme Court. To us, it appears that it is only in cases of decision of concurrent Courts that the doctrine of per incuriam can be....