The Additional Judge (Revisions), Sales Tax, Agra Range, Agra, has referred the following question of law for the opinion of this Court :

" Whether diesel engines and pump sets are liable to be taxed as agricultural implements or machinery parts ?"

The assessee manufactures diesel engines and assembles pumping sets by coupling pumps with diesel engines. The pumps are purchased by the assessee and not manufactured by it. The assessee sells diesel engines as such and also diesel engines coupled with pumps. Turnover in respect of the sale of diesel engines and pumping sets have been assessed in the hands of the assessee at the rate of 6 per cent. The assessees contentions that both diesel engines and pumping sets sold by it were agricultural implements and, as such, not liable to be taxed under entry No. 52 of the First Schedule, have been negatived.

The question raised is as to whether diesel engines and pumping sets sold by the assessee are agricultural implements or machinery or spare parts of machinery. The relevant entries in the First Schedule to the Act are :

Entry No. 1 :- "agricultural implements, other than implements worked by human or animal power and water pumps, but including their parts and accessories other than tyres and tubes. "

Entry No. 52 :- "machinery and spare parts of machinery, including water pumps, not being such machinery or spare parts thereof as are taxable under any other item in the schedule. "

It is apparent that if diesel engines and pumping sets sold by the assessee are taxable under some other entry, they cannot be taxed under entry No. 52. Counsel urged that diesel engines and pumping sets sold by the assessee are taxable under entry No. 1, i. e. , agricultural implements and, as such, could not be taxed under entry No. 52.

The case relating to pumping sets may be considered first. It has been contended that the pumping sets sold by the assessee consist of a diesel engine, which is coupled with a water pump, and as entry No. 52 includes only water pumps, pumping sets sold by the assessee do not fall within this entry. In the case of Engineering Traders v. State of U. P. ([1973] 31 S. T. C. 456 (F. B.)), a Full Bench of this Court took the view that water pumping sets are agricultural implements and do not come within the purview of the entry relating to machinery and its spare parts. This decision was given on 21st November, 1972. Subsequently, the entries have been changed, and in the relevant year stood as extracted above. The question is whether pumping sets fall within the description of water pumps, which have been specifically included in the entry relating to machinery and spare parts of machinery. There is a direct decision of a Division Bench of this Court where the amended entry was considered, and it was held that pumping sets fall within the ambit of entry No. 52, as it now stands, and do not fall within the purview of the entry relating to agricultural implements. This decision was given in the case of Basant Industries v. Commissioner of Sales Tax, U. P. ([1975] 36 S. T. C. 209) Counsel contended that the decision requires reconsideration. Counsel drew my attention to the passages from Encyclopaedia Britannica and to a book on Elementary Hydraulics by J. C. Dixit, and urged that as the pumping sets sold by him consist of a water pump attached to a diesel engine, they are not water pumps, and the amendment in entry No. 52 of the Schedule to the Act did not fill up the lacuna, which it intended after the Full Bench decision ([1973] 31 S. T. C. 456 (F. B.) ). It is undoubtedly true that if the pumping sets sold by the assessee do not fall within the description of water pumps as used in the notification, the amendment of the notification cannot induce one to hold that pumping sets come within the description of water pumps, even if they are not so. The question, however, remains as to whether pumping sets come within the description of water pumps.

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