Pea-gravels are not stone or sub-products of stone and do not fall under item 29 of the Schedule of taxable goods attached to the Tripura Sales Tax Act, 1976, and as such are not taxable.

The judgment of the Court was delivered by

DR. B. P. SARAF, J. - The question that arises for determination in this writ petition is whether "pea-gravels" supplied by the petitioner falls within the category of goods described as "metals, stone chips, any other products or sub-products arising out of bricks or stones" specified in item 29 of the Schedule of taxable goods attached to the Tripura Sales Tax Act, 1976.

2. The petitioner, a Government contractor, is a dealer registered under the Tripura Sales Tax Act, 1976, hereinafter referred to as "the Act". During the relevant period the petitioner supplied pea-gravels to the Executive Engineer, Public Health Engineering Division No. (III), Udaipur, South Tripura, in pursuance of a work order issued by him. The petitioner submitted his returns of turnover under the Act for the relevant periods to the Superintendent of Taxes, Agartala, showing tax due as "nil" on the ground that pea-gravels supplied by him did not fall in any of the taxable items described in the Schedule of taxable goods attached to the Act. The Superintendent of Taxes, however, did not accept the contention of the petitioner and held that pea-gravels was "sub-product of stone" and, as such, taxable under item 29 of the Schedule of taxable goods attached to the Act. In view of the above, the Superintendent of Taxes levied tax on the value of pea-gravels supplied by the petitioner. In addition to tax he also levied penalty under section 13 of the Act at the rate of 10 per cent of the tax for failure of the petitioner to furnish the return in time, and interest under section 25 of the Act. The petitioner preferred an appeal against the order of assessment and prayed for admission of the appeal without payment of the disputed amount of tax. The prayer was not allowed by the appellate authority in view of the second proviso to sub-section (1) of section 20 of the Act which has restricted the power of the appellate authority to issue direction for stay only to the extent of 50% of the tax or penalty. The petitioner was directed to pay the amount specified by the appellate authority in its order which were little over 50% of the demand for the purpose of admission of the appeal. The petitioner did not pay the amount and aggrieved thereby moved the present writ petition before this Court challenging the levy on the ground that the only question involved being whether pea-gravels is covered by any of the items of taxable goods specified in the Schedule and the same can be determined in a writ petition. The petitioner has also challenged the vires of second proviso to sub-section (1) of section 20 of the Act.

3. We have heard Mr. J. P. Bhattacharjee, the learned counsel for the petitioner and Mr. S. Barman Roy, the learned Advocate-General, Tripura. Mr. Bhattacharjee did not press his submission regarding the vires of the second proviso to sub-section (1) of section 20 of the Act as according to him the present petition can be decided simply by interpreting item 29 of the Schedule of taxable goods attached to the Act. It is well-settled by a series of decisions of the Supreme Court that the question as to whether a particular commodity is subject to tax or not can be determined by the High Court in an application under article 226 of the Constitution. (See State of U.P. v. Indian Hume Pipe Co. Ltd. [1977] 39 STC 355 (SC); AIR 1977 SC 1132 and Shri Nalini Ranjan Sirkar v. Superintendent of Taxes [1986] 62 STC 21 (Gauhati [FB]; (1986) 1 GLR 186 [FB]). It is not necessary in such cases that the alternative remedy by way of appeal, etc., should be exhausted. In that view of the matter we shall confine the discussion only to the question whether pea-gravels supplied by the petitioner is taxable under the Act.

4. The Superintendent of Taxes assessed the petitioner in respect of pea-gravels treating the same as "sub-product of stone" falling under item No. 29 of the Schedule of taxable goods attached to the Act. In th