The main legal point established in the judgment is the taxability of diesel engine pumping sets under the U. P. Sales Tax Act, 1948, based on the distinction between water pump and pumping set, retrospective amendments, and the binding effect of later apex court decisions.

( 1 ) THESE are three revisions filed by the Commissioner of Sales Tax Under Section 11 of the U. P. Sales Tax Act, 1948 (hereinafter referred to as "act") against the order of Tribunal dated July 27, 1990 relating to assessment years 1979-80, 1980-81 and 1981-82.

( 2 ) A common question of law has been raised in the present revisions which is as follows :

"whether, on the facts and in the circumstances of the case, the Sales Tax Tribunal was legally justified to hold diesel pump sets to be taxable as power driven agricultural implements despite finding of the honourable High Court in this year assessees case in Sterling Machine Tools v. Commissioner of Sales Tax, U. P. [1979] 43 STC 72; 1978 U. P. T. C. 660 and of the honourable supreme Court in State of U. P. v. Engineering Traders 1990 UPTC 838, that the same was taxable as machinery?".

( 3 ) THE applicant was carrying on the business of manufacturing and sales of water pump, diesel engine and diesel engine pumping sets. It had been claimed that all the aforesaid items were independent items sold independently in the market. In the present revisions, dispute relates to the taxability of diesel engine pumping sets. Assessing Authority had levied tax on the pumping sets at 8 per cent treating it as a machinery under the Notification No. ST-II-6627/x-612-1972 dated December 1, 1973. First Appeal filed by the dealer was rejected. Dealer filed Second appeal before the Tribunal which was allowed. Tribunal had held that the diesel engine pumping set is an agricultural implement and hence, it is liable to tax at 6 per cent (inclusive surcharge)and not as a machinery. Tribunal had relied upon the judgment of the Tribunal in Appeal No. 1185 of 1981 for the assessment year 1978-79, in which it had been held that the water pump and diesel pumping set were two different commodities and diesel pumping sets were liable to tax as a agricultural implements. Being aggrieved by the order of Tribunal, present revisions have been filed.

( 4 ) I have heard Sri M. R. Jaiswal, learned Standing Counsel and Sri Bharat Ji Agrawal, learned senior Advocate.

( 5 ) LEARNED Standing Counsel contended that in the case of Engineering Traders v. State of Uttar pradesh reported in [1973] 31 STC 456 ; 1973 UPTC 91, the Full Bench of this Court had held pumping set as a agricultural implements. Against the said order, Special Leave Petition was filed by the State which was allowed and the Full Bench decision in the case of Engineering traders v. State of Uttar Pradesh [1973] 31 STC 456, 1973 UPTC 91 was set aside. The honourable Supreme Court had reversed the judgment of this Court in the case of Engineering traders [1973] 31 STC 456, 1973 UPTC 91, in view of the amendment made in the relevant notification by section 31 of the Amending Act of U. P. Sales Tax (Amendment and Validation)Act, 1975 (U. P. Act No. 38 of 1975), by which, in the relevant notification the word "agricultural implements, other than implements worked by human or animal power and water pumps" have been substituted and was deemed to have been substituted in place of previous expressions used namely "agricultural implements, other than those worked by human or animal power. " He also referred a division Bench judgment of this Court in the case of U. P. Agricultural corporation, Aligarh v. State of U. P. reported in 1987 UPTC 2164, in which, diesel pumping set had been held taxable under the entry of machinery in view of Amendment in Notification by act No. 38 of 1975. He further cited a judgment of this Court in the case of assessee itself in sterling Machine Tools v. Commissioner of Sales Tax reported in [1979] 43 STC 72 ; 1978 uptc 660, in which, diesel pumping set has been held falling within the purview of water pump and therefore, held liable to tax under the machinery and not as an agricultural implement. He has further referred a division Bench judgment of this Court in the case of Basant Industries v. Commissioner of Sa