The nature of Robinson barley and its classification under the relevant tax notifications and acts.

JUDGMENT :

A.K. Ganguly, J. - Since both the tax revision cases involve identical facts and raise identical questions, they were heard together and are being disposed of by this common judgment.

2. In both the tax revision cases, two questions of law were raised for consideration of this Court and out of those two questions, the learned Counsel for the petitioner argued only one. The question on which both the tax revision cases were argued is as under:

Whether, in the facts and circumstances of the case, the Tribunal is justified in holding that Robinson barley is not covered under SI. No. 33 vide notification dated June 30, 1990 and is not taxable at the first point of sale ?

3. The material facts of the case which gave rise to the aforesaid question are narrated below:

M/s. Satyanarayan Bhandar, the petitioner in both the cases, is a registered partnership firm and carries on business in grocery, stationery, manohary goods, ayurvedic medicines, pan masala and salt, etc. The petitioner is a registered dealer. The assessment of the petitioner-firm was made u/s 12(4) of the Orissa Sales Tax Act, 1947 (hereinafter, referred to as "the OST Act") for the years 1990-91 and 1991-92. After completion of assessments and on the basis of information that the turnover of the petitioner for the aforesaid years has escaped assessment in view of the wrongful grant of exemption, orders for reopening of assessments were passed by the concerned Sales Tax Officer u/s 12(8) of the OST Act.

4. In course of such assessment proceeding, the Sales Tax Officer held that the petitioner had sold barley to the tune of Rs. 29,138.88 and Rs. 1,04,571.16 respectively for the years referred to above and claimed exemption of tax thereon on the ground of first point tax-paid goods and it was also claimed by the petitioner that purchase of Robinson barley was made inside the State of Orissa on payment of tax at the rate of four per cent. In the original assessment the exemption was allowed. But consequent upon reassessment, the Sales Tax Officer held that Robinson barley is not a medicine nor it is a cereal and is exigible to tax at the last point of sale at the rate of 12 per cent. Accordingly, demand at the rate of 12 per cent was raised in the assessment for both the years.

5. Against such assessment orders, the petitioner filed first appeal before the Assistant Commissioner of Sales Tax, Cuttack-II Range (hereinafter referred to as "the ACST"). Various contentions were raised before the ACST by the parties. Ultimately, the ACST set aside the orders of the assessment passed by the Sales Tax Officer and allowed the appeal holding thereby that Robinson barley being barley, was to be taxed at the first point of sale at the rate of four per cent. Against the said order of the ACST, the Revenue filed an appeal before the Sales Tax Tribunal in second appeal. The Sales Tax Tribunal allowed the appeal holding therein that Robinson barley is not the same as barely in the form of cereal and it cannot be taxed at the first point of sale at the rate of four per cent. Against the said judgment of the Tribunal, the petitioner has filed the present two revisions and both the cases were argued on the point indicated hereinabove.

6. Assailing the judgment of the Tribunal, a large number of decisions were cited by the learned Counsel for the petitioner. Before examining those decisions, this Court thinks it would be worthwhile to examine the notification in question. The Notification No. 21987-CTA-98/90-F., dated June 30, 1990, has been issued by the appropriate authority in exercise of its power under Sub-section (1) of Section 5 of the OST Act, 1947 as amended by the Orissa Sales Tax (Amendment) Act, 1990 and in the said notification the rate of sales tax of various goods have been notified. The particulars of the serial number and the rate of sales tax on which reliance was placed by the petitioner run as follows:

SI. No. 16. Cereals other than wheat, paddy, rice/broken rice, jowa