ORDER

1. Leave granted.

2. We have heard learned counsel appearing for the parties in this appeal, which is filed challenging the legality of the judgment and order passed by the Allahabad High Court in a writ petition filed by the respondent, praying for issuance of a writ of mandamus to read in the exemption notification, the words 'Tractor Engine specifying Cubic Capacity (CC) of the Tractor Engine not exceeding 1800 CC. The Government of India had issued notification on 16th April, 1985, making an amendment in the notification of the Government of India in respect of the table annexed to the notification, inserting by way of substitution the words 'Tractors of Draw-Bar Horse Power not exceeding 25'. Another notification was subsequently issued by the Government of India on 17th July, 1985, substituting the words 'Draw-Bar' with the words 'Power Take-off Horse'. Be it stated here that all such notifications relate to the payment of excise duty.

3. The Government of Uttar Pradesh, however, for the purpose of levy of sales tax issued a notification on 12th September, 1986, in which it was stated that under Section 4 of the Uttar Pradesh Sales Tax Act, 1948, Tractors with Power Take-off Horse Power not exceeding 25 would stand exempted from payment of tax under the Sales Tax Act, subject, however, to the condition that the said tractors are exempted from payment of Central Excise Duty.

4. A show cause notice was issued to the respondent from the Office of the Assistant Commissioner (Assessment)-I Sales Tax, Lucknow, stating therein that at the time of survey made, and as per the literature made available it was found that the, horse power of the tractors of the respondent had been disclosed as 30 Horse Power. In the aforesaid show cause notice it was stated that in view of the facts mentioned in the said notice, the respondent may submit a reply as to why the return filed by the respondent would not be rejected and a provisional assessment order for the period in question may not be completed under Rule 41(5) of the Rules.

5. Pursuant to the aforesaid show cause notice issued, a detailed reply was filed by the respondent. The Assessment Officer considered the entire records and, thereafter, by his order dated 21st March, 1992, passed an assessment order on the basis of the contents of the notification dated 12th September, 1986, denying exemption from payment of sales tax to the tractors of the respondent.

6. After the aforesaid assessment order was passed, the respondent filed a writ petition before the Allahabad High Court with the following reliefs:

'1. A Writ of certiorari or any other suitable Writ, Order of direction be issued to modify or amend, the notification so as to bring in conformity with the Central Government and conformity in respect of measuring strength or engine by all manufacturer as contained in Annexure-1 to this Writ Petition.

2. A Writ of mandamus directing the Opposite Party No.2 to clearly state in the said notification the basis of exemption being cubic capacity of the Tractor Engine not exceeding 1800 CC for exemption for Sales Tax in place of 25 P.T.O.H.P., and directing the Opposite Party No.2 to exempt the petitioners, tractor engine and specify the C.C. (Cubic Capacity) of the Tractor engine not exceeding 1800 C.C. And bring it at Par with Circular No.89/87/CE dated 01.03.1987 issued by Central Government to clear the anomaly and ambiguity in both the circulars, which creates discrimination among manufacturer of Fuel Efficient engines and rest ones, and refrain the Opposite Party No.2 to desist from recovering disputed Sales Tax of Rs.2,34,00,965.400 from April' 91 to Feb. 92 created by Annexure II dated 21.03.1991, and stay operation thereof.'

7. Interestingly, in the said writ petition there was no challenge to the assessment order passed. Be that as it may, the Division Bench of the Allahabad High Court proceeded to hear the aforesaid writ petition and by a detailed order passed held that since the