JUDGMENT

MISRA, J. - These are references under section 24(1) of the Orissa Sales Tax Act. The Additional Sales Tax Tribunal has stated these cases and has referred the following question for opinion of this Court :

"Whether, on the facts and in the circumstance of the case, the Additional Sales Tax Tribunal is correct in holding that agarbattis should be taxed as 'perfumery' article coming under the purview of entry in serial No. 36 of the Rate Chart provided for taxing luxury goods, when he recorded a specific finding that agarbattis are not luxury goods ?"

2. Section 5 of the Orissa Sales Tax Act contains the scheme under which there is a uniform prescribed rate for imposition of tax on the taxable turnover. The proviso appearing under sub-section (1) authorises the State Government from time to time by notification and subject to such conditions as may be imposed to fix a higher rate of tax not exceeding thirteen per cent or a lower rate of tax on the sale transactions. The assessee in the instant case is a dealer in agarbattis. The relevant periods of assessment are 1971-72 and 1972-73. Petitioner paid tax at rate of seven per cent for three quarters of the first year and at e