The judgment of the Court was delivered by

KANIA, J. - This is a reference 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 facts giving rise to the question raised in this reference are as follows : The respondents are glass merchants. On 26th July, 1962, the respondents made an application to the Commissioner of Sales Tax requesting him to determine whether the sales of glass sheets made by the respondents under the two cash memos dated 21st July, 1962, were covered by entry No. 22 of Schedule E to the said Act as contended by the respondents. The Commissioner, after hearing the respondents, came to the conclusion that the said glass sheets were covered by entry No. 14 of Schedule C to the said Act and the sales thereof were liable to be taxed at the rate prescribed in the said entry No. 14 of Schedule C. The respondents appealed against this decision to the Tribunal. The Tribunal remanded the case to the Commissioner of Sales Tax with a direction that the respondents should be given an opportunity to lead evidence in support of their contention that glass sheets did not come within the ambit of the term "glassware" in entry No. 14 of the Schedule C to the said Act. The respondents then led evidence before the Commissioner by producing affidavits of some merchants and manufacturers as to the meaning attributed in commercial parlance to the expression "glassware". No evidence was led on behalf of the department. The Commissioner of Sales Tax, on this evidence, once again came to the expression that the glass sheets sold by the respondents were covered by entry No. 14 of Schedule C to the said Act. The respondents went in appeal against this decision before the Sales Tax Tribunal. The Tribunal, after considering the evidence led before the Commissioner of Sales Tax as aforesaid and after taking into account certain authoritative texts cited by the respondents, came to the conclusion that the trade has recognised "glass" and "glassware" as distinct categories and held that glass sheets and plate glass did not fall under the expression "glassware". On the basis of this conclusion the Tribunal allowed the appeal of the respondents and held that the glass sheets sold under the two aforesaid cash memos were liable to be taxed at the rate prescribed in entry No. 22 of Schedule E to the said Act.

Arising out of the aforesaid decision of the Tribunal the following question has been referred to us for our consideration at the instance of the Commissioner of Sales Tax :

"Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that glass sheets sold by the respondents under the two cash memos dated 21st July, 1962, were covered by entry No. 22 of Schedule E to the Bombay Sales Tax Act, 1959, and not by entry No. 14 of Schedule C to the Act ?"

The description of the goods covered by entry No. 14 of Schedule C to the said Act runs as under :

"Glassware, chinaware or articles made of porcelain and glazed earthenware adapted for domestic use, other than those specified in entry 44 in this Schedule and in entry 5 in Schedule E."

Entry No. 22 of the Schedule E to the said Act is a residuary entry covering all goods other than those specified in Schedule A, B, C and D and the preceding entries of Schedule E. We may make it clear that the only contention which has been raised before us is, whether the glass sheets sold by the respondents, as aforesaid, could be said to be covered by the term "glassware" used in the said entry No. 14 of Schedule C, there being no controversy that if this is not the correct position, then the said glass sheets would be covered by entry No. 22 of Schedule E to the said Act.

It was submitted by Mr. Sanghvi, the learned counsel for the applicant, that the question raised in this reference is covered by the decision of a Division Bench of this Court in Trib