The Judgment of the Court was delivered by

KANIA, J. - There are four references under section 61(1) of the Bombay Sales Tax Act, 1959 (hereinafter referred to as "the said Act"), made at the instance of the Commissioner of Sales Tax. The question which has been referred to us for out determination in this references is as follows :

"Whether the Tribunal erred in holding that the coloured matches known as Bengal light matches sold by the respondent are covered by entry 22 of Schedule E to the Bombay Sales Tax Act, 1959 ?"

The assessment periods to which these references relates are 1st April, 1960, to 31st March, 1961, 1s April, 1961, to 31st March, 1962, 1st April, 1962, to 31st March, 1963, and 1st April, 1963, to 31st March, 1964, respectively.

The facts giving rise to these references are as follows : The respondent-firm is registered as a dealer under the said Act and deals in matches including safety matches and coloured matches known as Bengal light matches. The dispute in these references relates to the tax to be levied on the sales of Bengal light matches by the respondent. The Sales Tax Officer, who assessed the respondent, held that these Bengal light matches were covered by entry 43 of Schedule C to the said Act and were liable to be taxed at the rates provided therein. The respondent preferred appeals to the Appellate Assistant Commissioner of Sales Tax, who dismissed the same and confirmed the view taken by the Sales Tax Officer. The respondent then went by way of second appeals to the Sales Tax Tribunal. The Tribunal following its decision in Ishwardas & Bros. v. State of Maharashtra (Second Appeal No. 348 of 1965 decided on 22nd October, 1966) took the view that the said Bengal light matches were covered by entry 22 of Schedule E of the said Act and not by entry 43 of Schedule C thereto. It is the correctness of this view which is sought to be tested by way of the question referred to us.

Before going into the controversy raised before us it may be useful to take note of the relevant entries in Schedule C to the said Act. The descriptive part of entry 43 of Schedule C consists of the expression "fireworks". Entry 9 of Schedule C runs thus :

"Safety matches (excluding matches ordinarily used as fireworks)."

Entry 22 of Schedule E to the said Act is the residuary entry. The rate of sales tax prescribed in entry 43 of Schedule C at the relevant time was eight paise in the rupee, which was higher than the rates prescribed in entry 22 of Schedule E or entry 9 of Schedule C to the said Act.

The contention of Mr. Kotwal, the learned Advocate for the applicant, is that Bengal light matches must be regarded as fireworks within the meaning of the said expression in entry 43 of Schedule C to the said Act. It is urged by Mr. Kotwal that Bengal light matches are a kind of matches which emit coloured light when rubbed on a rough surface or a specially prepared surface. These matches are used not for domestic purposes but for amusement particularly during Diwali and on other festive occasions. It is submitted by him that in view of this, these matches must be regarded as "fireworks" covered by entry 43 of Schedule C to the said Act. Our attention is drawn by Mr. Kotwal to the decision of a Division Bench of the Gujarat High Court in Commissioner of Sales Tax v. India Cutlery Stores ([1971] 27 S.T.C. 548). In this case, the Gujarat High Court has taken the view that Bengal light matches are fireworks and are covered by entry 44E of Schedule C of the Bombay Sales Tax Act, 1959, as applicable to the State of Gujarat. The descriptive part of that entry is the same as the descriptive part of entry 43 of Schedule C to the said Act with which we are concerned. A question arose in that case as to whether Bengal light matches were fireworks covered by entry 44E of Schedule C or were covered by the residuary entry, and it was on this question that the Gujarat High Court took the aforesaid view. It has been pointed out in that