JUDGMENT

Sen, J-Special leave granted.

2. In this case we have to decide whether rubber flaps manufactured by the appellant can be classified under sub-entry (2) of Entry 43 in the Schedule to the Uttar Pradesh Sales Tax Act, 1948. The relevant Entry in the Schedule has been set out in the judgment of the High Court as under :

"(I) Motor vehicles including motor cars, motor taxi cabs, motor cycles, motor cycle combinations, motor scooters, mopeds, moterettes, motor omnibuses, motor vans, motor lorries, motor trucks, jeeps, station wagons and chassis of motor vehicles and bodies or tankers or motor caravans built or meant for mounting on chassis of motor vehicles, but excluding tractors whether on wheels or on tracts.

(2) Components, parts and accessories of vehicles specified in sub-entry (1) above, including tyres and tubes, batteries and trailers adapted for use along with the said vehicles, other than such trailers as are predominantly used along with any other vehicles."

3. The appellants are manufacturers of rubber flaps which are used for giving support to the rubber tubes used in the tyres of motor vehicles. The contention of the appellant is that-such rubber flaps do not fall under any of the items specified in the Schedule and, therefore, they should be taxed as unclassified items for which the rate of tax is 8%. The Assessing Officer, however, taxed the turnover of the rubber flaps under sub-entry (2) of Entry 43 of the said Schedule, treating the rubber flaps to be an accessory of motor, vehicles.

4. The assessee s first appeal to the Statutory Appellate Authority failed. The assessee thereafter appealed to the Tribunal. The Tribunal noted the argument of the assessee that the flaps were used between the wheel rim and the tyre tube of bus, trucks and other heavy vehicles, rubber flaps were manufactured from rubber and that the assesses had treated flaps taxable as unclassified item in the category of rubber products. The Tribunal also took note of the two judgments placed before it but distinguished them on facts. It was pointed out that in the case of Modi Rubber Ltd. v. State of Kerala Government,1 Kerala High Court held that rubber flaps came under the category of rubber products . But in the Uttar Pradesh Act, there was no separate classification of rubber products .as taxable goods. Hence no decision about taxability of rubber flaps could be taken in the light of the Kerala Judgment.

5. The case came before the Allahabad High Court for Revision under Section 11 of the U.P. Sales Tax Act. The High Court held that "in the face of the undisputed fact that the article in question is used for the protection and support of rubber tubes in the wheels of heavy automobiles there seems to be no escape from the conclusion that the rubber flap has to be treated as accessory of motor vehicle. Although there is no direct evidence about the sate of the rubber flap in automobile market yet in view of its exclusive, use it can be presumed that it is an item which is sold in the automobile market." In the case of State of Orissa v. Dunlop India Ltd.2, it has specifically been mentioned that flap is commercially a distinct identifiable commodity available for sale in the automobile market. The High Court upheld the decision of the Tribunal that the rubber flaps were taxable as necessary motor vehicle.

This judgment is not under appeal in this Court.

6. Under sub-section (d) of Section 3A of the U.P. Sales Tax Act, 1948 a dealer has to pay tax on the turnover in respect of goods specified in the Schedule to the Act at such rate as the State Government may by notification declare. Sub-section (e) of Section 3A provides for goods other than those referred to in clauses (a), (b), (c) (d) of Section 3A will be charged the tax at the rate of 8%. The contention of the assessee is that rubber flaps manufactured by it do not fall under any of the specific heads in the Schedule and, therefore, the only way to tax rubber flaps is by taking r