JUDGMENT :

1. Heard Sri Pradeep Agarwal, learned counsel for the revisionist as well as Sri Rohit Nandan Shukla, learned counsel appearing for the opposite party.

2. The present revision has been preferred assailing the order of the Commercial Tax Tribunal (hereinafter referred to as "the Tribunal") dated 07.07.2007, whereby by means of common judgment, the second appeals preferred by the revisionist pertaining to assessment years 1999-2000, 2000-2001 and 2001-2002, have been dismissed on common question of law arising for determination before the Tribunal.

3. Against the impugned judgment of the Tribunal dated 07.07.2007 three revisions have been preferred and considering that common question of law are involved, they are being disposed of by this common judgment.

4. Brief facts of the case are that the revisionist firm is registered dealer under the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the Act, 1948") and is engaged in manufacture and sale of sugar. The revisionist had applied for grant of "recognition certificate" under Section 4-B of the Act, 1948 read with U.P. Trade Tax Rules, 1948 and was granted recognition certificate no. ST433, dated 28.07.1994. Further applications were made for adding certain goods and by means of order dated 16.12.1998, recognition certificate was amended and revisionist was entitled to purchase the goods on concessional rate of tax, which were to be utilized by him for manufacture of notified goods.

5. It is during course of assessment proceedings it came to the notice that revisionist had purchased 'paint' on concessional rate of tax at the rate 2.5% (normal rate of tax 15%) against Form-3B and hence he was put under notice asking him to reply as to why he has purchased Paint utilizing Form-3B, despite the fact that Paint is not a raw material used for manufacture of sugar and hence why should difference of tax of 12.5% be not realised from him.

6. The revisionist responded to the said notice and in his defence stated that he had purchased Paint as it was covered under the heading "Consumable Stores" for which he had duly applied and in the recognition certificate issued on 28.07.1994 the said article was indicated at item no. 1. It was further stated that items no. 4 of amended certificate dated 16.12.1999 "material for consumable stores".

7. The Assessing Authority rejected the explanation given by the revisionist and imposed penalty under Section 3(b) of the Act, 1948, holding that Paint is not a material which is utilized in the manufacture of sugar, but it is only used for maintenance of machinery and hence it is not covered under the definition of "consumable stores" and the revisionist was not eligible to purchase Paint against Form-3B on concessional rate of tax as it is not covered under the definition of "consumable stores".

8. Aggrieved by the aforesaid order dated 23.01.2020, the revisionist preferred first appeal before the Joint Commissioner (Appeals), Sitapur which was dismissed by means of order dated 16.07.2003, and subsequently, second appeal was preferred before the Tribunal and all the three appeals were dismissed by means of common judgment and order dated 07.07.2007, which is impugned in the present revisions.

9. The only question which arise for determination by this Court is "as to whether the revisionist was entitled to purchase 'paint' at concessional rate of tax under Section 3(b) of the Act, treating it to be "consumable store", which is utilized in the manufacture of sugar.

10. Learned counsel for the revisionist has submitted that Paints are used to protect the plant and machinery as sugar juice is acidic in nature and sulphur-di-oxide is also used for clarification of sugar cane juice in the second stage of removal of colour which is also acidic in nature and corrodes the machinery and for prevention of which paints are necessary. He submits that in order to protect the plant and machinery, Paints are utilized and hence it cannot be said that they are not es