M. C. DESAI, C. J.

( 1 ) THE Judge (Revisions), Sales Tax, U. P. , has at the instance of the Commissioner of Sales Tax, u. P. , referred to this Court a statement of the case from which the following question of la arises:-Whether the sale of phosphor bronze ingots made from an alloy of tin and copper with a total addition of not more than 1 per cent. of phosphorus and lead would be taxable?

( 2 ) THE assessee sold an article called phosphor bronze ingots to the Indian Railways in accordance with a contract entered into between it and the railways. Under the contract it was to supply to the railways an article, the composition of which was:-Tin between 6 and 8 per cent. , lead 5 per cent. , phosphorus between 4 and 6 per cent. and copper of the balance.

( 3 ) THUS the article namely phosphor bronze ingots to be sold by the opposite party to the railways was to consist of at least 90. 9 per cent. copper, of 6 to 8 per cent. of tin, of not more than 5 per cent. of lead and of 4 to 6 per cent. of phosphorus. In compliance with these contracts the opposite party sold to the railways ingots containing 0. 1 per cent. of lead, 0. 4 per cent. of phosphorus, 6 to 8 per cent, of tin and at least 90. 9 per cent, of copper. The question arose before the assessing authorities whether the turnover of sale of these ingots was exempt from payment of sales tax under Notification no. ST. 3085/x-902 (16)-49 dated 3rd August, 1949, which reads as follows:. . . the Governor is hereby pleased to order that. . . the provision of Section 3 of the Act shall not apply to the sales of copper, tin, nickel and zinc or any alloy containing any of these metals only.

( 4 ) A copy of the notification was sent by the State Government to the Commissioner, Sales Tax, with the remark that small impurities up to 1 per cent, in metals or alloys thereof stated above should be ignored for the purposes of granting exemption. It was contended on behalf of the assessee that lead and phosphorus contained in the ingots Were only impurities and that since their percentage did not exceed one they should be ignored for the purposes of granting exemption and the exemption should be granted to it. This contention was accepted by the Judge (Revisions) and he has no referred the question to this Court.

( 5 ) THE first question that arises is of the legal effect of the direction" given by the State government to the Commissioner, Sales Tax. Under Section 4 (a) the Government could exempt an article only by a notification in the official Gazette and not otherwise. They have exempted under the notification mentioned above only sales of copper, tin, nickel and zinc and any alloy containing any of these metals. The direction given by them to the Commissioner is not a part of the notification at all; it is nothing more than an administrative instruction given to the commissioner. Since it is not a part of the notification and since the Governments power of exempting an article is only through a notification the direction does not entitle arty assessee to claim an exemption. An assessee can claim an exemption only under the notification and not under the direction. After having issued the notification that all alloy of only copper, tin, nickel and zinc is exempt it was not open to them to direct the Commissioner, Sales Tax, to exempt an alloy of these articles and another metal provided it did not exceed 1 per cent. The assessee cannot claim the exemption under the direction, and the direction is not binding upon the Court. It was argued that the Commissioner never contended before the Sales Tax Officer, the Judge (Appeals) and even the Judge (Revisions) that the direction has no legal force and does not bind him or the Sales Tax Authorities. It was argued that whether the direction has any legal force or not is not a question that can be said to arise out of the order of the Judge (Revisions) because it was never raised before him. But the question is directly involved in the question

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