Lime is not a paint and is taxable as an unspecified commodity.

JUDGMENT :

A. Pasayat, J. - On being moved by the Revenue u/s 24(2) of the Orissa Sales Tax Act, 1947 (in short, the 'Act'), this Court directed the Orissa Sales-tax Tribunal (in short, the 'Tribunal') to refer the following question for opinion.

"Whether on the facts and in the circumstances of the case the Sales-tax Tribunal is justified to hold that lime is not a paint and the same is taxable as an unspecified commodity @7%, though lime-stone out of which lime is produced is taxable @ 10% ?"

Pursuant to that direction a reference has been made.

2. Facts on record, necessary to be recapitulated for disposal of the reference are as follows :

M/s. Konaik Hardware Mart (hereinafter referred to as the 'assesses') deals with hardware, paints, lime etc. During assessment for the assessment year 1980-81, the assessing officer found that assessee had paid tax @ 7% of the sales of time. He did not accept the assessee's plea that it was an unspecified item. He was of the view that lime comes out of limestone which is taxable @10%. But lime produced out of limestone is generally used for painting of buildings. It can be used as a paint, but not as mineral, which is also taxable @ 10% as per serial No. 66 of list of taxable goods. In appeal, the Assistant Commissioner of Sales-tax, Appellate Unit, Rourkela (in short, the 'ACST') observed that although lime was manufactured out of limestone is a chemical used in pulp and paper industry. Bleaching powder is also manufactured out of lime. It is also mostly used in white-washing or painting the wall. Accordingly it was held that assessing officer was justified in levying tax@10%. In second appeal, Tribunal held that the forums below had erred in their conclusion. It did not agree with the view of forums below that lime is nothing but paint. It was not denied before the Tribunal that lime is mostly used for white-washing of building and as a chemical in paper industries. It. was observed that when lime mixed with water is applied to wall it cannot be said that walls are painted thereby. Further, lime is never used for painting of any other articles such as furniture and other goods.. For the earlier years (i. e., 1977-78, 1978-79 and 1979-80) also similar view was taken in respect of the assessee, and there was no reason to take a different view. An appli cation for reference was filed u/s 24(1) of the Act to refer the question indicated above for opinion of this Court. The Tribunal with reference to the conclusions arrived at by it rejected the application. This Court has been moved u/s 24(2) of the Act and pursuant to the direction given, a question has been referred for opinion.

3. There is no appearance on behalf of the assessee in spite of notice. Learned counsel for the revenue submitted as follows :

(i) Lime and lime-stone are one and the samething and there is no perceptible difference between the two.

(ii) Under the generic entry 'minerals' against serial No. 63 of the list of goods liable to salss-tax, lime-stone does appear like Manganese, Dolomite, Fire-clay etc.

(iii) When it has to be taxed under a specified item, there is no good ground to tax it under unclassified item.

(iv) Lime-stone is included in mineral as stated in Stroud's Judicial Dictionary.

4. The question referred to this Court consists of two parts. The first relates to whether lime is taxable under Entry 6S as paint and the second relates to whether it can be taxed under Entry 63 as lime-stone which is taxable at the rate of 10%. The second point does not appear to have been considered by the Tribunal as if it was not urged before the Tribunal. The parties proceeded on the basis as if the dispute was whether lima was a paint or not. Reference was made to Entry 66 of the list of the taxable goods.

5. We shall first deal with the question whether lime can be said to be paint in order to be covered by Entry 66 of the list of taxable goods. Entry 66 reads as follows :

"66. Paints and varnishss, acids, dyes lacquers, enamels, glue