Under section 11 (4) of the U. P. Sales Tax Act, the Additional Judge (Revisions), Sales Tax, Kanpur, has submitted this reference seeking the opinion of this court on the following question :-

" Whether, upon the facts and in the circumstances of the case, it was open to the revising authority upon a revision application filed by the State to entertain a ground against the levy of a rate of 2 per cent in respect of dhoop batti when that rate was never in dispute before the appellate authority, which disposed of the appeal filed by the assessee ?"

The assessee, amongst other things, deals in dhoop batti. The assessment years involved are 1962-63, 1963-64 and 1966-67. The turnover of dhoop batti is not in dispute. It was enhanced by the Sales Tax Officer but was accepted by the appellate authority and thereafter by the revising authority. Before the revising authority, however, the department raised a ground with regard to the rate of tax saying that the turnover of dhoop batti should have been assessed at 7 per cent as it was an article of perfumery as held by the Supreme Court in Commissioner of Sales Tax, U. P. v. Indian Herbs Research and Supply Co. [[1970] 25 S.