The judgment of the court was delivered by

PATHAK, J. - The Additional Revising Authority, Sales Tax, Allahabad, has referred the following two questions for the opinion of this court :-

(1) Whether, under the facts and circumstances of the case, the weights and measures made of iron and sold by the assessee were covered by the expression "mill-stores and hardware" under the Notification No. ST-1367/X-1045(19)-1960 dated 5th April, 1961 ?

(2) Whether, under the facts and circumstances of the case, the turnover of the sales of the iron weights and measures from 1st April, 1963, to 31st May, 1963, was taxable at the rate of 3 per cent. or at the rate of 2 per cent. only ?

The assessee was assessed to sales tax under the U.P. Sales Tax Act on a turnover which included weights and measures. The Sales Tax Officer treated the weights and measures as liable to tax at 3 per cent. and determined the tax liability accordingly. On appeal by the assessee, the Assistant Commissioner (Judicial) Sales Tax did not agree with the view taken by the Sales Tax Officer and held that weights and measures were liable to tax at 2 per cent. only. The State applied in revision. The Additional Revising Authority affirmed the view taken by the appellate authority, holding that the proper rate of tax attracted was 2 per cent. and not 3 per cent. for the period 1st April, 1963, to 31st May, 1963. As for the turnover for the period 1st June, 1963, to 31st May, 1964, the Additional Revising Authority referred to a subsequent Notification No. ST-2104/X-902(16)-52 dated 21st May, 1963, under which he held that the rate had been raised from 2 paise to 3 paise per rupee. At the instance of the Commissioner of Sales Tax, this reference has now been made to this court.

The reference came on for consideration before a Bench of this court. In support of its contention that weights and measures could not be described as "hardware" the assessee relied upon Commissioner of Sales Tax, U.P. v. Aftab Husain Imdad Husain ([1970] 25 S.T.C. 471), Fine Trading Corporation v. Commissioner of Sales Tax, U.P. ([1970] 25 S.T.C. 474) and Commissioner of Sales Tax, U.P. v. Kanpur Udyog Bhandar ([1970] 26 S.T.C. 431). The Bench, being of opinion that those decisions called for reconsideration, referred this case to a larger Bench. Accordingly, the case has been placed before us.

In Aftab Husain Imdad Husain ([1970] 25 S.T.C. 471), the question before this court was whether steel trunks could be described as "hardware" within the meaning of the expression "mill-stores and hardware" mentioned as item No. 7 in Notification No. 1367/X-1045(19)-1960 dated 5th April, 1961. The court expressed the view that they could not. In coming to this conclusion the court relied on materials indicating how the expression "hardware" was understood in the commercial world. It observed that every article made of iron or of other base metal could not be regarded as an article of "hardware". In the popular sense, that expression would comprise small articles of base metals, such as iron, copper, aluminium and their alloys like brass etc. The trade journals and catalogues of hardware items, to which the parties referred in that case, indicated that "hardware and mill-stores" were allied trades, that mill-stores consisted of items like small tools and spare parts of machinery and that the hardware trade by itself ordinarily refers to small items of base metals particularly building materials like nuts, bolts, hinges, rivets, latches, curtain railings, window grills etc. In the next case, Fine Trading Corporation ([1970] 25 S.T.C. 474), the question arose whether kitchen-knives and penknives could be described as "hardware". In holding that they could not, the court observed :

"...... It cannot be overlooked that the entry in the notification does not refer to hardware alone. It speaks of 'mill-stores and hardware'. It seems to us that a distinct category of goods is contemplated here. A perusal of