Spare parts of motor vehicles, as used in entry 1 of the First Schedule appended to the Bengal Finance (Sales Tax) Act, 1941, would include only those spare parts which were used directly in motor vehicles.

B.N. KIRPAL, J.

In respect of the assessment years 1966-67 and 1967-68, the Sales Tax Appellate Tribunal, Delhi, has referred the following questions of law to this Court :

"Whether, on the facts and in the circumstances of the case, the learned Financial Commissioner was justified in holding that the fuel injection pump and its spare parts dealt with by the applicant was covered under entry 1 of the First Schedule appended to the Bengal Finance (Sales Tax) Act, 1941, as then extended to the Union Territory of Delhi and was liable to tax at 10 per cent under that Act and not at 5 per cent as claimed by the applicant, and at the rate of 3 per cent under the Central Sales Tax Act, 1956, and not 1 per cent as mentioned in Notification No. S.R.O. 2717 dated 23rd August, 1957 ?"

2. Briefly stated the facts, as per the statement of case, are that the assessee is a registered dealer which is engaged in the business of selling motor parts, tractor parts, tractors and agricultural implements. During the year 1966-67, the assessee had sold fuel injection pumps and their spare parts and the same were, as per the assessee, covered by the item of general machinery and it was liable to pay tax at 1 per cent under the Central Sales Tax Act. The assessee had been selling the goods to parties dealing in fuel injection spares required for diesel engines or to parties manufacturing diesel engines used for agricultural purposes.

3. Initially the assessee paid under the Bengal Finance (Sales Tax) Act, 1941, as extended to Delhi, local tax at 10 per cent treating the fuel injection pumps, etc., as spare pans of motor vehicles. Before the assessing authority, however, it was contended that payment of sales tax at 10 per cent was a mistake and the said equipment could not be regarded as spare parts of motor vehicles.

4. The assessing authority held that the goods were mostly sold to parties who dealt with motor vehicles and the goods were nothing else but motor parts though the possibility of their double use with or without slight alteration or modification was not ruled out. - The assessing authority rejected the claim that the said goods should be taxed at 5 per cent. Under the Central Sales Tax Act, by regarding the said equipment as spare parts of motor vehicles, the same was subjected to tax at 3 per cent.

5. Appeals were filed both under the Central Act as well as the local Sales Tax Act to the Assistant Commissioner but without success. Revision before the Additional Commissioner of Sales Tax was also dismissed. Second revision petition was then filed before the Financial Commissioner who observed that in the instant case it had been proved by evidence that all the sales of fuel injection pumps had been made by the assessee to the parties dealing in motor spare parts and that it had been charging tax at 10 per cent, meaning thereby that the assessee had been treating it as motor spare parts. For that reason, the revision petition was dismissed.

6. Being aggrieved, the assessee filed an application for reference to the Tribunal, who succeeded the Financial Commissioner, and the aforesaid question of law has been referred to this Court.

7. Before us two contentions have been raised by the learned counsel for the assessee. It has been submitted by Mr. Chawla that the fuel injection pump is not a spare part and is, therefore, not covered by the entry in question. In the alternative, it is submitted that even if it be held that the fuel injection pump is a spare part, then it will be a spare part of the diesel engine and not of a motor vehicle.

8. Mr. Arora, on the other hand, has submitted that the fuel injection pumps are parts of motor vehicles and have been rightly taxed at 10 per cent under the local Sales Tax Act and 3 per cent under the Central Act.

9. Before dealing with the rival contentions, it is necessary to refer to the relevant entries. Under the Bengal Finance (Sales Tax) Act, 1941, as extended to Union Territory of Delhi, d