P. K. JAIN, J. - The revisionist is a public limited company engaged in the business of manufacture and sale of refined edible oils manufactured from sunflower and mustard. It has its registered office in Secunderabad (State of Andhra Pradesh) and various depots in different States including the State of Uttar Pradesh. The goods are received in the depots and sold through such depots.

In the assessment year 1994-95 ex parte assessment order was framed and tax liability was determined at the rate of 10 per cent. The assessment proceedings were reopened under section 30 of the U.P. Trade Tax Act, 1948 (hereinafter called "the Act") and books of accounts were accepted, tax liability was imposed at the rate of 2.5 per cent. Similarly assessment for the assessment year 1995-96 was completed and tax liability was imposed at the rate of 2.5 per cent. However, the assessing authority later on felt that rate of tax was wrongly applied to the turnover of the assessee in both the assessment years and, therefore, issued notices under section 22 for rectification of the error. The notices were contested by the dealer mainly on the ground that the oils sold by the dealer are covered by entry 31, clause (a) of the Notification No. ST-3366 dated September 28, 1993, on which the rate of tax was 2.5 per cent inclusive of additional tax. It was also the contention of the assessee that rectification under section 22 was not permissible merely on the basis of change of opinion. The assessing authority placing reliance upon the decision of this Court as affirmed by the honourable Supreme Court in B.P. Oil Mills Ltd., Agra v. Sales Tax Tribunal [1998] 111 STC 188; 1998 UPTC 1020 levied the tax at the rate of 10 per cent.

First appeals and second appeals filed by the dealer were dismissed hence, these two revisions :

Sri Bharat Ji Agrawal, learned Senior Counsel, assisted by Sri Piyush Agrawal, learned counsel appearing for the revisionist and Sri S. P. Kesarvani, learned Standing Counsel appearing for the revenue have been heard.

Submission of Sri Agrawal is that this was not a case of mistake apparent on the face of record and the question whether the goods sold by the dealer were covered by clause (a) or clause (b) of entry 31 of the notification was a contentious question which required application of mind and decision of the question whether refined sunflower oil and refined mustard oil were not covered by the entry of mustard oil and sunflower oil. His next submission is that even after refining mustard oil and sunflower oil do not lose their identity as such and unless such oils are excluded from clause (a) of entry 31 the same cannot be taxed under clause (b) of entry 31. His submission is that the decision in B.P. Oil Mills Ltd. case [1998] 111 STC 188 (SC), has been wrongly interpreted and applied by the authorities to the case of the revisionist. Sri S. P. Kesarvani has, however, contended that the reasoning in the judgment of the Tribunal shows that the dealer had accepted before the Tribunal that the present case fell within the purview of section 22. It is next submitted that in B.P. Oil Mills Ltd. [1998] 111 STC 188 (SC), it was held that the process of refining amounts to manufacturing and the commodity produced becomes a different commercial commodity, therefore, it would not be covered by entry 31(a) and it would be covered by entry 31(b) which provides for taxability of other kinds of oils which are not covered by entry 31(a) of the notification. It is submitted that the authorities below have rightly applied the decision in the case of B.P. Oil Mills Ltd. [1998] 111 STC 188 (SC).

Before the rival submissions are considered in the light of the material on record it would be proper to reproduce entry 31 of Notification No. ST-2-3366/XI-9(186)-92 which came into effect from April 1, 1993.

AMENDMENT

In the list to the aforesaid notification No. 31, the following serial column-wise shall be substituted, namely :

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