( 1. ) THIS order shall also govern the disposal of Misc. Civil Case No. 195 of 1983 (Commissioner of Sales Tax, M. P. v. Bombay Glass House, Ujjain ). Both these references, which arise between the same parties are made by the Tribunal (Board of Revenue) at the instance of the department for the opinion of this Court on the following common question of law:

Whether, in the facts and circumstances of the case, glass sheets will be assessed to tax under entry No. 1 of Part VI of Schedule II appended to the M. P. General Sales Tax Act, 1958, and not under entry No. 26 of Part II of Schedule II?

( 2. ) THE facts giving rise to these references as per the statement of case received, may be stated, in brief, thus: The period relates for the assessment year 1974-75 and for the assessment year 1976-76. The non-applicants-assessee are dealers carrying on the business of sale of glass, rubber, plastic and aluminium goods. In the relevant years the assessee sold glass sheets also. They were assessed to tax under the prevailing relevant entry No. 26 of Part II of Schedule II of the said Act at the rate of 12 per cent, whereas the contention of the assessee before the assessing authority as also before the appellate authority was that they had effected sale of plain glass sheets and, therefore, should be assessed under the residuary entry which up to July, 1974, was at the rate of 8 per cent and from August, 1974, it was 10 per cent. According to the non-applicants-assessee glass sheet is a product from glass and, therefore, it could not be taxed under entry No. 26 of Part II of Schedule II.

( 3. ) THE assessing authority rejected the assessees contention and tax was levied under entry No. 26 of Part II of Schedule II of the Act. On an appeal being filed, the first appellate authority confirmed the order of the assessing authority holding that glass sheets were goods made of glass and, therefore, were assessable to tax under entry No. 26 of Part II of Schedule II of the said Act.

( 4. ) THE assessee went up in further appeal before the Tribunal, which relying on a Division Bench decision of the Tribunal in the case of Bharat Glass House, Ratlam v. Commissioner of Sales Tax in Appeal No. 381-II/75 held that glass sheet is a raw material which may be used for the manufacture of new goods like manufacturing acquaria, or lens or a looking glass, etc. , and it is these manufactured articles which would be regarded as "goods made of glass" and not the sheet glass which in popular parlance is the raw material for production of goods made of glass, and therefore, accepted the contention of the assessee that they should have been assessed under the residuary article at the rate of eight per cent. Hence these references,

( 5. ) IT is not in dispute that by the amending Act No. 20 of 1972, for the period 1st August, 1972, to 25th March, 1975, entry No. 26 read as under: All types of crockery and goods made of glass and glassware, on which tax was levied at ten per cent. and for the subsequent period 26th March, 1975, to 30th September, 1978, entry No. 26 read as under: All types of crockery, goods made of glass and glassware, but excluding glass chimneys of hurricane lanterns and kerosene lamps.

( 6. ) FROM the relevant assessment orders it is not in dispute that the non-applicants-assessee deal in glass, rubber, plastic and aluminium goods and that he has also been selling glass sheets. In the decision reported in [1965] 6 STC 136 (Nag) (Commissioner of Sales Tax, M. P. , Nagpur v. Mohanlal Ramkishan Nathani, Raipur), which arose under the C. P. and Berar Sales Tax Act, 1947, it has been held that:

The term glassware in item 14 in Part I of the original Schedule I to the C. P. and Berar Sales Tax Act, 1947, whether it is interpreted in a narrow sense or otherwise, would include glass sheets. In the decision reported in [1965] 16 STC 452 (Tribuwandas Gulabchand and Brothers, Nagpur v. State of Maharashtra), the Bombay High Court has held that: Th