TMI Blog2006 (3) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... special leave, has been filed by the Commissioner of Sales Tax, Lucknow, U. P. (for short, "the appellant") against the impugned final order of the High Court of Judicature at Allahabad in Sales Tax Revision No. 799 of 1979 dated April 17, 1979 whereby the High Court has dismissed the revision petition filed by the appellant. The respondent in spite of service is not present and proceeded ex parte. The brief facts giving rise to the present controversy are: The dispute in the present case relates to the year 1966-67. The respondent-assessee, hereinafter referred to as "the respondent", is a dealer in foodgrains, cement, kerosene oil, etc. The account books of the respondent were accepted but the assessing officer did not allow tax exemption on purchase of rice for Rs. 31,278.44. Similarly, the assessing officer did not allow tax exemption to the respondent on the purchase of broken dal worth Rs. 8,71,474.13. The assessing officer also fixed the turnover of imported kerosene oil at Rs. 1,47,898.43. Aggrieved against the aforesaid order of the assessing officer, the respondent filed an appeal. In appeal, the order passed by the assessing authority was confirmed. The respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collection of the tax in respect of the first purchases of split or processed foodgrains merely because tax has been imposed, levied or collected earlier in respect of the first purchases of those foodgrains in their unsplit or unprocessed form." In view of this amendment, when the case of processed dal came up for consideration before the High Court again in 1972, a division Bench of the Allahabad High Court in the case of Prakash Trading Company v. Commissioner of Sales Tax, U. P. reported in [1972] 30 STC 345, held that processed dal was different from unprocessed dal purchased by dal mills and, therefore, purchase tax could be levied on the first purchase of each of such commodities. A Four-Judge Bench of this court in the case of Hira Lal Rattan Lal v. State of U. P. reported in [1973] 1 SCC 216 See [1973] 31 STC 178 (SC)., upheld the vires of aforesaid Explanation II by observing thus: "16. Now coming to point No. 3, there is no justification for the contention that the Legislature has usurped any judicial power. The Legislature has not purported either directly or by necessary implication to overrule the decision of the Allahabad High Court in Tilok Chand Prasan Kumar' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler shall be deducted from his gross turnover only if the purchase in question is proved not to be the first purchase." After this, Act was again amended by U. P. Act No. 23 of 1976, section 3-D was again amended. Section 3 of Amending Act recites as under: "3. Amendment of section 3-D. In section 3-D of the principal Act, in sub-section (1), the existing Explanation shall be renumbered as Explanation I, and thereafter the following Explanation II shall be inserted and be deemed always to have been inserted, namely: Explanation II. For the purposes of this sub-section, in relation to purchases of foodgrains in pursuance of any order made under section 3 of the Essential Commodities Act, 1955 (Act 10 of 1955) or under rule 114 of the Defence and Internal Security of India Rules, 1971 including any purchases in excess of the levy share, the purchase first made by a dealer from the State Government or its purchasing agent shall be the first purchase of such foodgrains and the tax shall accordingly be levied at that point on such dealer." The learned single Judge in Gouti Bandhu's case [1978] UPTC 707, after considering the amendments brought about in section 3-D by the Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple laid down in Tilok Chand's case [1970] 25 STC 118, should not be applied as in the present case as there is a finding by the Judge (Revisions) that dehusked barley is a commercially different commodity from barley. The Judge (Revisions) has given this conclusion solely by holding that dehusked barley was a commercially different commodity from barley as it was obtained after processing barley by a machine. In Tilok Chand's case [1970] 25 STC 118, it has been held hat dehusking by a machine will not bring into existence a new commodity. As a result it is not possible to distinguish Tilok Chand's case [1970] 25 STC 118, on this principle." and came to the conclusion that Explanation II added by the Amending Act, 1970 ceased to be on the statute book and, therefore, the law laid down in Tilok Chand's case [1970] 25 STC 118, by the division Bench of the High Court to the effect that dehusking by machines would not bring into existence a new commodity would become operative. The single Judge in the impugned order, although aware of the order of the division Bench of the High Court in Prakash Trading Company's case 1972] 30 STC 345, and of the decision of this court in Hiralal Ratt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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