LexSARU SMELTING(P) LTD. versus COMMISSIONER OF SALES TAX, LUCKNOW
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r SARU SMELTING (P) LTD. v. COMMISSIONER OF SALES TAX, LUCKNOW MAY 13,1993 [KULDIP SINGH AND YOGESHWAR DAYAL, JJ.] U.P. Sales Tax Act, 1948-Section 3A (2) Second Proviso- Notification under-Whether phosphorous bronze exigi~le to a lower rate of tax-Held, 'only' specified metals or their alloys being exigible at the lower rate, it cannot fall within the entry if even very small quantity of it contains and unspecified metal, in this case phosphorous. By Notification N~. ST-II-333/X-1012-1971 dated 15 November 1971, entry 2(a) copper, tin, nickel, zinc or any other aUoy containing any of these metals only were made exigible at a reduced rate of sales tax of 1 % • The Judge (Revisions) Sales Tax, U.P., Lucknow held that phosphorous bronze falls within this notification. The Single Judge of the Allahabad High Court took a contrary view and held that it was taxable as an unclassified commodity at 3.5 % • A B c D Before this court it was contended that phosphorous bronze is made of E tin and copper only; that a small quantity of phosphorous is used to deoxidise the metal and that it is not an essential substance of the phosphorous bronze. It was, however, admitted that without the use of phosphorous, phosphorous bronze cannot be produced, and a certain quantity remains in the phospho- rous bronze. Dismissing the appeal, this Court, HELD: (1) The emphasis in the entry is that it must contain, even if an alloy, "only" copper, tin, nickel or zinc. The expression "only" is very material for understanding the meaning of the entry. Since the alloy in dispute contains phosphorous, may be in a very small quantity, it cannot fall within entry 2(a) of the notification. (721-G) F G Commissioner of Sales Tax v. Hindustan Metal Works (1964) 15 STC 97, H 719 720 SUPREME COURT REPORTS [1993) 3 S.C.R. A referred to. B c CIVIL APPELLATE JURISDICTION: Civil Appeal No. 266 (NT) of 1980. From the Judgment and Order dt 14.12.1979 of the Allahabad High Court in Sales Tax Rev. No. 214 of 1979. l;Iarish N. Salve, P.P. Singh and Ms. Meenakshi Grover for the Appellant. R.C. Verma and Ms S. Mukherjee for R.B. Misra for the Respondent. The Judgment of the Court was delivered by YOGESHWAR D~ VAL, J. This appeal is directed against the judgment of the Single Judge of the Allahabad High Court passed in Sales Tax Revision No. 214 of 1979 dated 14th December, 1979. By the impugned judgment the High D Court set aside the order of the Judge (Revisions). Sales Tax, U.P. Lucknow holding that the Phosphorous Bronze which the assessee/appellant herein have been manufacturing, fell within the ambit of Notification No. ST-II-333/X-1012- 1971 dated the 15th November, 1971 issued in exercise of the powers under the second proviso to sub-section (2) of section 3-A of the U.P. Sales Tax Act, 1948 (U.P. Act No.XV of 1948), and took the view that the relevant entry at serial No. E 2(a) of the said Notification did not cover the goods prepared by the appellant herein and was thus liable to be taxed as an unclassified conunodity at the rate of 3.5%. The relevant entry reads as under :- SL No. Description of goods Rate of tax 1. ..... . F 2 (a) Copper, tin, nickel or zinc· 1 per cent.m or any other alloy containing any of these metals only. (b) ·• G The contention on behalf of the appellant is that Phosphorous Bronze H manufactured and marketed by them fs covered under the aforesaid entry. According to the appellant the said Phosphorous Bronze is made of tin and copper only. It is further contended on behalfof the appellant that the small quantity of Phosphorous is used to deoxidise the.metal and as such the Phosphorous is not an .. ... ~· -- SARU SMELTING v. TI-IE COMMISSIONER OF SFLES TAX LUCKNOW [DAY AL,J] 721 essential substance of Phosphorous Bronze . .It is, however, admitted case of the A· parties that without the use of Phosphorous the Phosphorous Bronze cannot be produced and certain quantity of Phosphorous still remains in the Phosphorous Bronze. The contention of the respondent is that Phosphorous Bronze is an alloy containing not only the metals mentioned in the aforesaid entry but Phosphorous also and as such it is not covered under the aforesaid entry. The words "other alloy containing any of these metals only" mean that the alloy made of these metals i.e. copper, tin, nickel orzinc only and that alone is covered under the said entry. It was submitted that if any oth
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