ABHYANKAR, J. - This is a reference at the instance of the assessee made by the Sales Tax Tribunal under section 23(1) of the C.P. and Berar Sales Tax Act.

The question that is referred is as follows :-

"Whether the view of the Tribunal that glass sheets fall under entry No. 15 of Schedule I, Part I, to the C.P. and Berar Sales Tax Act, 1947, is justified in law."

The assessee does the business of dealing in glass sheets, photo-frames and pictures. The Sales Tax Officer assessed his turnover for glass sheets at the rate of 7 per cent. holding that this item was covered under "glass-wares" falling under item No. 15 in the First Schedule of the C.P. and Berar Sales Tax Act, 1947. The chargeable accounting period for which the turnover was determined is from 3rd November, 1956, to 23rd October, 1957. The assessment order was passed on 28th October, 1959. Against this order the assessee preferred a first appeal before the Assistant Commissioner of Sales Tax (Appeals), Eastern Division, Range I. His contention before the first appellate authority was that glass sheets were not subject to sales tax at the rate of 7 per cent. of the glass-ware. The first appellate authority rejected this contention and dismissed the appeal on 30th April, 1960. Against this order the assessee preferred a second appeal which was disposed of by the Assistant Commissioner of Sales Tax (Appeals) Eastern Division, Ranges I and II. That authority also did not accept the contention of the petitioner. It is only the decision of the second appellate authority which is included in the paper book before us. In rejecting the contention of the assessee the appellate authority referred to a decision of the Nagpur High Court which is reported in Commissioner of Sales Tax, Madhya Pradesh, Nagpur v. Mohanlal Ramkishan Nathani ([1955] 6 S.T.C. 136). It will be necessary to refer to that decision in considering the contentions raised before us. In view of that decision of the Nagpur High Court, the second appellate authority felt itself bound by the decision and rejected the appeal of the assessee.

The assessee then preferred a revision before the Sales Tax Tribunal, Bombay. The Tribunal also referred to the same decision of the Nagpur High Court and held that it could not take a contrary view. The Tribunal observed in paragraph 2 as follows :-

"............ the contention of Mr. Thakkar is that glass sheet is not an article made of glass because, according to him, glass sheet is glass itself. We are afraid we cannot accept this line of reasoning. Glass is a substance containing combination of certain chemicals and it need not be in the form of a sheet. It can be in any conceivable form. Therefore glass sheet like glass-ware is an article made of glass and, in our opinion, it would be covered by the comprehensive term glass-ware."

Then the Tribunal referred to a Division Bench decision of this Court, holding that glass chatons were included in the term "glass-ware" and quoted certain observations from that decision. A copy of that decision is made available to us and that decision was given in Civil Reference Applications Nos. 21 and 22 of 1955. The observations on which the Tribunal relied are to the following effect :-

"There can be no doubt that the subsequent legislation makes it clear that the Legislature intended by the expression 'glass-ware' a very large undefined and indefinite category which included all articles made of glass."

In view of these decisions the Tribunal rejected the revision filed by the assessee.

It does not appear from the record that any evidence was led on behalf of the assessee before the taxing authorities. In fact, a perusal of the order in revision application before the Tribunal will show that the assessee wanted the entry to be understood excluding sheet glass or plate glass from glass-ware as a matter of construction of the entry, the context in which the entry is found, and the general scheme of the Sales Tax Act and the Sch