The judgment of the court was delivered by

MADON, J. - This is a reference under section 61 (1) of the Bombay Sales Tax Act, 1959, made at the instance of the Commissioner of Sales Tax, in which, the short question which arises for our determination is whether oil-engines used for working pumping sets for drawing out water are agricultural machinery.

The respondents are an agricultural co-operative society at Nandurbar in the Dhulia District. In their assessment for the period 1st April, 1963, to 31st March, 1964, the respondents contended that the sales of oil-engines effected by them were sales of agricultural machinery within the meaning of entry No. 12 of Schedule C to the Bombay Sales Tax Act, 1959, and that the respondents were, therefore, liable to pay sales tax at the rate of 3 per cent mentioned in the said entry. The Sales Tax Officer, however, held that the oil-engines sold by the respondents did not fall under any of the entries contained in the said Schedule C and the respondents were, therefore, liable to pay on the sales of these engines sales tax at the rate of 3 per cent as also general sales tax at the rate of 2 per cent under the residuary entry No. 22 in Schedule E to the said Act. The respondents thereupon preferred an appeal to the Assistant Commissioner of Sales Tax and having proved unsuccessful in this appeal approached the Tribunal in second appeal. The Tribunal accepted the contention of the respondents and allowed the appeal. It is from this judgment and order of the Tribunal that the present reference has been made and the question submitted to us for our determination is as follows :

"Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that during the period 1st April, 1963, to 31st March, 1964, the sales of oil-engines effected by the respondents to the agriculturists were sales of 'agricultural machinery' within the meaning of entry No. 12 of Schedule C to the Bombay Sales Tax Act, 1959 ?"

From the date when the Bombay Sales Tax Act, 1959, came into force, namely, 1st January, 1960, till 10th May, 1973, entry No. 12 of Schedule C to the said Act provided as follows :

---------------------------------------------------------------------- "Entry Description of goods Rate of Rate of No. sales tax purchase tax ---------------------------------------------------------------------- 12. Agricultural machinery and Three naye Three naye implements (other than paise in the paise in the implements specified in rupee. rupee." entry 1 in Schedule A) and parts of such machinery and implements. ----------------------------------------------------------------------

The said entry was amended by the Bombay Sales Tax (Amendment) Ordinance, 1973, which was promulgated on 11th May, 1973, and thereafter replaced with effect from the same date by the Bombay Sales Tax (Amendment) Act, 1973 (Mah. Act No. 32 of 1973). The amended entry No. 12 is as follows, the portions inserted by the said amending Act being underlined by us :

---------------------------------------------------------------------- "Serial Description of goods Rate of Rate of No. sales tax purchase tax 1 2 3 4 ---------------------------------------------------------------------- 12. Agricultural machinery and Three paise Three paise implements (other than in the in the tractors, oil-engines and rupee. rupee." electric motors and implements specified in entry 1 in Schedule A) and components, parts and parts and accessories thereof. ----------------------------------------------------------------------

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