TMI Blog1984 (12) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act have been held to be without jurisdiction by the Tribunal. The Revenue has come to this Court for quashing the aforesaid order passed by the Tribunal and raised the following two questions of law: "(i) whether on the facts and under the circumstances of the case perusing the original assessment order the case was not of non-application of mind rather than change of opinion? Is the assessing authority not competent to exercise his jurisdiction to reopen it under section 21 of the Act? (ii) Whether on the facts and in the circumstances of the case the Member, Sales Tax Tribunal, was justified in taxing the 'mill board' as paper under Notification No. 332 dated 15th November, 1971, and not as an unclassified item?" As regards the first question the learned standing counsel appearing for the Revenue has urged that the Sales Tax Officer did not apply his mind to the question whether the mill board was covered by the term "paper" at the time of original assessment for the years 1975-76, 1976-77 and 1977-78 and in fact it was a case of non-application of mind by him at the time of original assessment and not a case of change of opinion by the Sales Tax Officer and he was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e income was considered as sufficient for action under section 34(1)(b) and there is no reason for not extending this principle to an action under section 21 of the Act. It is of course correct that if action has been taken under section 21 merely on change of opinion, it will not be upheld (see Commissioner of Sales Tax v. Jagdish Prasad Satish Prasad [1979] 43 STC 415 (All.); 1979 UPTC 820 and Commissioner of Sales Tax v. Dwarika Das Varun Kumar 1979 UPTC 1152)." In my opinion even in that case no contrary view has been taken. Coming to the facts of the instant cases the same assessing authority considered the entire matter in great detail for the assessment year 1974-75 and held mill board as paper and covered by the entry in question. The same Sales Tax Officer passed the assessment orders for the years 1975-76, 1976-77 and 1977-78 under rule 41(7) of the Rules and the mill board was taxed by him as paper. In these circumstances it cannot be said that the Sales Tax Officer had not applied his mind in taxing the commodity "mill board" as paper but since he took a different view in the assessment proceedings for the year 1978-79 and taxed mill board as unclassified commodity, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not possible to consider cellophane as paper. The learned counsel appearing for the respondent-assessee has, on the other hand, argued that the case of Kilburn and Company Ltd. [1973] 31 STC 625 (All.) is not applicable in the instant cases inasmuch as the entry which was considered by the court was "paper other than hand-made paper" under Notification No. ST-3124/X-1012 (4)-1965 dated 1st July, 1966, and it was on the basis of the entry of 1966 notification that ammonia paper and ferro paper were held to be not paper whereas the entry under Notification No. 332 dated 15th November, 1971, is quite different from that of 1966 notification. The facts of Sree Rama Trading Company [1971] 28 STC 469 (Ker) are also distinguishable from the facts of the instant cases inasmuch as in the aforesaid case the entry was "paper (other than newsprint), cardboards, straw-board and their products". The standing counsel also placed reliance on a case of the Orissa High Court in State of Orissa v. Gestetner Duplicators (P.) Ltd. [1974] 33 STC 333. In the aforesaid case the entry, which was subject-matter of interpretation, runs as under: "Paper including all kinds of pasteboard, millboard, straw-bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and all kinds of paper other than hand made were made taxable. The building board, file board, grey board, mill board, cardboard, straw-board and every variety of paper became taxable if not made by hand. By Notification No. ST-3124/X-1012 (4)1965 dated 1st July, 1966, the wide entry of 1956 as mentioned above was narrowed down by omitting the words "of all kinds". By Notification No. ST-II-332/X-1012-1971 dated 15th November, 1971, item No. 68 relating to paper, the entry of 1966 was changed in the following words: "Paper of all kinds including hand-made paper, whether meant for writing, printing, copying, packing or for any other purpose." It is evident that by notification dated 15th November; 1971, significant and material changes were brought about. The hand made paper, which were specifically excluded in 1956 and again in 1966 were made taxable. The present entry contained in the notification dated 15th November, 1971 is wide enough, which introduced two significant changes, inasmuch as it has used the words (1) "paper of all kinds" and thereafter the words (2) "for any other purpose". Notification No. 332 dated 15th November, 1971, was amended by Notification No. ST-II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 'mill board' which the appellant manufactures is of various thicknesses, samples whereof form part of the assessment record. It is used for printing, drawing, packing, for file covers and various other purposes." After recording the aforesaid finding the Tribunal, which is a final finding of fact authority, held that mill board is to be taxed under Notification No. 332 dated 15th November, 1971, and not as unclassified item. The counsel for the respondent-assessee has also referred in his argument that in the assessment years 1969-70 and 1970-71 a question arose whether the mill board was paper or cardboard or straw-board and the Additional Judge (Revisions), Sales Tax, Saharanpur Range, Saharanpur, by his order dated 28th May, 1977, held as follows: "The question still remains whether mill board has, under the circumstances, to be treated as paper or as an unclassified item. The Honourable Supreme Court while considering 'carbon paper' defined paper to mean, in popular parlance a substance which is used for boarding, writing, or printing, or for packing, or for drawing, or for decorating or for covering the walls. There can be no doubt that mill board manufactured by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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