Judgment

FAZL, ALI, J.:- This appeal by certificate raises a short question of law as to whether or not hume pipes which are the subject-matter of the present case amount to "sanitary fittings" as contemplated by a notification issued by the Government under the U.P. Sales Tax Act. The respondent is a dealer engaged in the manufacture and supply of hume pipes. The pipes manufactured by the respondent also manufactures high quality and high pressure pipes like prestressed concrete pipes for water supply, R.C.C. pressure pipes, penstock pipes used in hydro-electric projects etc. The respondent was a supplier of pipes to various Governmental Departments both Central and State, such as Irrigation, Public Works, Local Self Government Engineering, Railways and Ministry of Petroleum etc. It appears that a dispute arose between the respondent and the Sales Tax Department with respect to the rate of tax for sale of pipes manufactured by the respondent for the assessment years 1962-63, 1963-64 and 1964-65. According to the notification issued by the Government in pursuance of the U.P. Sales Tax Act, items classed as "sanitary fittings" were to be taxed at 7% instead of 2 percent. The Sales Tax Officer treated the hume pipes supplied by the respondent as "sanitary fittings" and imposed Sales Tax at the rate of 7%. Instead of going an appeal to the Assistant Commissioner (Judicial) the respondent filed a writ petition in the High Court assailing the order of the Sales Tax Officer on the ground that the hume pipes manufactured by the assessee could not by any stretch of imagination, be construed to be "sanitary fittings", nor were they ever used as such. The High Court, after hearing counsel for the parties and after perusing the materials on the record, accepted the plea of the respondent and held that the hume pipes could not be treated as "sanitary fittings" and the Sales Tax Officer was, therefore, not entitled to levy tax at the rate of 7%. The High Court accordingly quashed the assessments made by the Sales Tax Officer and hence this appeal by the Department after obtaining a certificate from the High Court.

2. In our opinion, the facts of this appeal lie within a very narrow compass. The only point which arises for consideration is whether or not the hume pipes manufactured by the respondent could be said to the "sanitary fittings". The notification dated September 1, 1966 amended the existing entry as "sanitary goods and fittings" but in these assessment years we are concerned with the entry as it stood unamended. The Sales Tax Officer does not appear to have applied his mind at all to the reasons as to how and why hume pipes could be treated as sanitary fittings. Apart from his ipse dixit that hume pipes amounted to sanitary fittings, he based his order on no other material. The respondent had filed an application before the Sales Tax Officer wherein he had clearly alleged substantial facts showing that the hume pipes could never be used as "sanitary fittings". It is only the G.I. pipes or other kinds of pipes which are used in lavatories, urinals and bath-rooms which can be termed as "sanitary fittings". Neither the contract nor the tender by the respondent show the exact use for which the hume pipes were meant. On the other hand the respondent had produced a large catena of materials in the shape of certificates from technical experts, Engineers and highly reputed dealers in sanitary fittings to show that hume pipes are never used as sanitary fittings. In spite of these materials, the State, when it filed its counter-affidavit before the High Court, did not controvert any of the facts mentioned by the respondent, vide paragraphs 4,5 and 6 of the counter-affidavit filed before the High Court. The materials consist of certificates by Local Self Government Engineering Department, U.P., to show that the pipes supplied by the respondent were not used as "sanitary fittings". This certificate appears at p. 34 of the Paper Book and shows