judgement:
Civil Appeal No. 532(NT) of 1989.
From the Judgment and Order dated 4.2.
1987 of the Allahabad High Court in S.T.R. No. 298 of 1986.
AND Civil Appeal No. 533 (NT) of 1989.
From the Judgment and Order dated 26.3.
1987 of the Allahabad High Court in Sales Tax Revision No. 454 of 1986.
S.C. Manchanda, R.S. Rana and Ashok K. Srivastava for the Appellant.
R.C. Mishra and Dr. Meera Aggarwal for the Respondent in C.A. No. 532 of 1989.
Raja Ram Aggarwal, Vijay Hansaria and Sunil K. Jain for the Respondent in C.A. No. 533 of 1989.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted and these appeals are disposed of by the judgment herein.
These appeals are from the judgments and orders of the High Court of Allahabad dated 4th February, 1987 and March 26, 1987 respectively.
These involve a common question.
The facts of the appeal arising out of Special Leave Petition No. 1293 of 1988 and the facts of the appeal arising out of Special Leave Petition No. 1296 of 1988 are similar.
In order to appreciate the contentions raised herein, it would be appropriate to deal with the facts of the appeal arising out of Special Leave Petition No. 1293 of 1988.
The assessee is engaged in repairing and refilling of cotton bowl on the shafts which are used as part of calendering machine in the textile industry.
The cotton bowl is a shaft made of steel on which a thick layer of cotton is pasted and 425 affixed.
It is used in the textile finishing industries as an essential part of calendering machine.
In the course of its use the cotton pasted on the shaft loses its thickness and shape and after some time it requires repairing and refilling.
The assessee in this case moved an application under section 35 of the U.P. Sales Tax Act, 1948 (hereinaf ter called 'the Act ').
It may be mentioned that Section 35 was added by the U.P. Sales Tax (Amendment and Validation) Act No. 23 of 1976.
Section 35 of the said Act has been amended by Section 31 of the U.P. Act 12 of 1979.
Section 35 provides for determination of disputed ques tions by moving an application before the Commissioner of Sales Tax.
The relevant part of the said section as it stood at the relevant time was as follows: "35.
Determination of disputed questions (1) If any question arises, otherwise than in a proceeding pending before a court or before an Assessing Authority under Section 7 or Section 21, whether, for the purposes of this Act, (a) any person or association of persons, society, club, firm company, corporation, undertaking or Government Department is a dealer; or (b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term; or (c) any transaction is a sale or purchase and, if so, the sale or purchase price, as the case may be, therefore; or (d) any particular dealer is required to obtain, or to apply for the renewal of registration ; or (e) any tax is payable in respect of any particular sale or purchase and, if so, the rate thereof, the person or the dealer concerned may, after depositing the fee specified in Section 32, submit an application to the Commissioner of Sales Tax, along with such documents as may be prescribed.
426 (2) The Commissioner of Sales Tax shall, after giving the applicant an opportunity of being heard, decide, as he deems fit, the question so arising: Provided that, before giving such decision, the Commissioner of Sales Tax may, in his discretion, ask an officer subordinate to him to make such inquiries as he considers necessary for the decision of the question.
(3) No decision of the Commissioner of Sales Tax under this section shall affect the validity or operation of any order passed earlier by any Assessing Authority, Appellate Author ity, Revising Authority or the Tribunal.
(4) No question which arises from an order already passed, in the case of the applicant, by any authority under this Act or the Tribunal, shall be entertained for determination under this section.
(5) A decision given by the Commissioner of Sales Tax under this section shall, subject to an appeal to the Tribunal, be final.
(6) XXX XXX XXX.
" The question that arises in these appeals before us is the true interpretation of sub section (5) of section 35 of the Act, namely, whether a revision shall lie to the High Court from the decision of the Commissioner under section 35 of the Act which has been the subjectmatter of an appeal before the Tribunal.
The respondent dealer moved an applica tion under section 35 of the Act and the decision was ren dered in terms of the said section.
The decision, inter alia, included the questions whether the job of repairing and refilling of cotton bowl and the process involved there in amounted to "manufacture" or "sale" within the meaning of the Act.
The Commissioner of Sales Tax by his order dated 10th June, 1985 decided both the questions against the assessee.
Aggrieved thereby the assessee had preferred an appeal before the Sales Tax Tribunal.
The Tribunal by its order dated 14th November, 1985 allowed the appeal in part.
The Tribunal held that the process of repairing and refill ing of cotton bowls of the customers did not amount to "manufacture" as defined under section 2(e i) of the Act.
It further held that such an activity of the assessee amounted to "sale" as defined under section 2(h) of the Act as amend ed by the U.P. Sales Tax Amendment and Validation Act, 1985.It is against this decision of the Sales Tax Tribunal that the Commissioner of Sales Tax had preferred revision to the High Court.
The High Court went into the question whether further revision lay to the High Court.
The High Court, noticed of the terms of section 35 noted hereinbefore which provided by sub section 5 of section 35 that a decision given by the Commissioner of Sales Tax under that section, subject to an appeal to the Tribunal, shah be final.
(Emphasis supplied) The High Court examined the question whether further revi sion lay and answered it in the negative.
Therefore, we were concerned in these appeals with the question whether at the relevant time in terms of section 35 of the Act any further revision lay to the High Court from the decision of the Commissioner which has been the subject matter of appeal before the Tribunal.
The High Court came to the conclusion that having regard to the scheme of the provisions and the amendment made by the U.P. Act 12 of 1979 and in view of the decision of the Division Bench of the High Court in Indo Lube Refineries vs Sales Tax Officer, Sector I, Gorakhpur, [1987] 66 STC 145 no further revision lay to the High Court from the order of the Tribunal.
In that view of the matter, the High Court dismissed the revision.
Aggrieved thereby, the Commissioner has come up in appeal before this Court in these two appeals.
Shri Manchanda for the appellants and Shri Raja Ram Agarwal for the respondents both submitted that the judgment under appeal is not correct though for different reasons.
It is necessary to refer to the scheme of the Act and the amendments from time to time effected therein.
Broadly speaking, the assessment is made by the Sales Tax Officer in terms of section 3 and other allied sections.
Section 9 of the Act deals with appeals and provides that any dealer or other person aggrieved by the order made by the Assessing Authority other than an order mentioned in section 10 A, may, within 30 days from the date of the service of the copy of the order or appeal to such authority, as may be pre scribed, request the appellate authority in writing for summary disposal of his appeal.
The other consequential provisions of law need not at the present moment be examined in detail.
Section 10 provides for Sales Tax Tribunal.
The section was substituted at first by Act 12 of 1979 and thereafter by Act 22 of 1984.
After the substitution by the Act 12 of 1979 the Act has provided that there shall be a Sales Tax Tribunal consisting of a President and such other members as the State Government may from time to time deem it necessary to appoint from amongst persons who have been, or who are qualified to be judges of the High Court and persons who hold or have held a post not below the rank of Deputy Commissioner of Sales Tax provided that when the 428 Tribunal consisted of one or more persons who have been judges of a High Court then he or one of them should be appointed the President.
Sub section (5) of Section 10 authorises the Tribunal, as the case may be, to confirm, cancel or vary such order.
Sub section (2) of Section 10 stipulates that any person aggrieved by an order passed by an appellate authority under section 9 or by the revising authority under section 10 B or by a decision given by the Commissioner of Sales Tax under section 35 may, within six months from the date of service of the copy of such order or decision on him, prefer an appeal to the Tribunal.
Sub section 10(a) of Section 10 provides that an appeal against the order of the Appellate Authority under section 9 shall be heard and disposed of, inter alia, (i) by a bench of one member, whether such order is passed by an Assistant Commis sioner (Judicial), the amount of the tax, fee or penalty in dispute does not exceed five thousand rupees; and (ii) by a bench of two members, in any other case.
An appeal against the order passed under section 10 B should be heard and disposed of by a bench of two members.
An appeal against an order passed under section 35 shall be heard and disposed of by a bench of three members.
The President has the power to direct an appeal to be heard and decided by a larger bench and transfer an appeal from one bench to another.
There was a subsequent amendment by section 10 of the U.P. Act 22 of 1984.
Section 10 as it stands after amendment by Act 22 of 1984 is as follows: "10.
Sales Tax Tribunal (1) There shall be a Sales Tax Tribunal consisting of such members, including a President, as the State Government may, from time to time, deem it necessary to appoint from amongst (a) the persons who are qualified to be Judges of the High Court; and (b) the persons belonging to the Uttar Pradesh Sales Tax Service who hold or have held a post not below the rank of Deputy Commissioner of Sales Tax: Provided that: (i) where the Tribunal consists of one or more persons who is or are members of the Uttar Pradesh Higher Judicial Service, then he or the senior most amongst them shall be appointed President; 429 (ii) no person shall be appointed from amongst advo cates unless he has paid income tax on income from such profession (exclusive of all other incomes) in each of the five consecutive years preceding such appointment.
(1 A) The State Government may prescribe such other qualifi cations or conditions for the appointment of the President and other members of the Tribunal as it may deem fit.
(1 B) The provisions of Rule 56 of the Uttar Pradesh Funda mental Rules shall continue to apply to every member of the Tribunal including the President, whether appointed before or after the commencement of the Uttar Pradesh Sales Tax (Amendment and Validation) Act, 1983, as they apply to any other Government servant: Provided that a member of the Tribunal including the President, appointed before the commence of the Uttar Pradesh Sales Tax (Amendment and Validation) Act, 1983, may continue as such till he attains the age of sixty years.
(2) Any person aggrieved by an order passed by an Appellate Authority under Section 9, other than an order referred to in sub section (4 A) of that said section, or by the Revis ing Authority under section 10 B or by the Commissioner of Sales Tax under sub section (3) of section 4 A or by a decision given by the Commissioner of Sales Tax under Sec tion 35 may, within six months from the date of service of the copy of such order or decision on him, prefer an appeal to the Tribunal: Provided that where the disputed amount of tax, fee or penalty does not exceed one thousand rupees, the appellant may, at his option, request the Tribunal in writ ing for summary disposal of his appeal, whereupon the Tribu nal may decide the appeal accordingly.
Explanation For the purpose of this sub section, the expression 'any person ' in relation to any order passed by an authority other than the Commissioner of Sales Tax, 430 includes the Commissioner of Sales Tax.
(2 A) The manner and procedure of summary disposal of appeal shall be such as may be prescribed.
(3) Section 5 of the , shall apply to appeals or other applications under this section.
(4) The Tribunal may at any stage, after giving the appel lant a reasonable opportunity of being heard, dismiss the appeal.
(5) The Tribunal may, if it has not already dismissed the appeal under sub section (4), after calling for and examin ing the relevant records, and after giving the parties a reasonable opportunity of being heard or as the case may be, after following the procedure prescribed under subsection (2 A) (a) confirm, cancel or vary such order, or (b) set aside the order and direct the assessing or appellate or revisional authority or the Commissioner of Sales Tax, as the case may be, to pass a fresh order after such further inquiry, if any, as may be specified, or (c) order such amount of tax, fee or penalty or other money as may have been realised in excess of the due amount to be refunded according to the provisions of this Act.
Explanation The power to vary an order referred to in clause (a) includes the power to vary the order by reducing or enhancing the amount of assessment or penalty.
(6) Where an appeal under this section has been filed, the Tribunal may, on the application of the appellant moved within thirty days from the filing of such appeal, after giving the parties a reasonable opportunity of being heard, stay the operation of the order appealed against or the recovery of the disputed amount of any tax, fee or penalty payable,or refund of the amount due, or proceedings for re assessment, under the order appealed against till the dis posal of the appeal: 431 Provided that: (i) no application for stay of recovery of any disput ed amount of tax, fee or penalty shall be entertained unless the applicant has furnished satisfactory proof of the pay ment of not less than one third of such disputed amount in addition to the amount required to be deposited under sub section (1) of Section 9; (ii) the Tribunal may, or special and adequate reasons to be recorded in writing, waive or relax the requirement of clause (i) regarding payment of one third of such disputed amount.
(8) No order passed under this section for the stay of recovery of tax, fee or penalty shall remain in force for more than thirty days unless the appellant furnishes ade quate security to the satisfaction of assessing authority concerned for payment of the outstanding amount.
(9) The members of the Tribunal shall sit in such benches of one, two or more members as may be constituted from time to time, and do such work of the Tribunal as may, subject to sub section (1) and the rules, be allotted to them by order, or in accordance with the directions of the President of the Tribunal.
(10)(a) An appeal against the order of appellate authority under section 9 shall be heard and disposed of (i) by a bench of two members, where such order is passed by a Deputy Commissioner (Appeals) or the amount of tax, fee or penalty in dispute exceeds ten thousand rupees; (ii) by a single member in any other case.
(b) An appeal against an order passed under Section 10 B shall be heard and disposed of by a bench of two members.
(c) An appeal against an order passed under sub section (3) of Section 4 A or a decision given under Section 35, which shall be filed before the President shall be heard and 432 disposed of by a bench of three members.
(d) The President may, if he so thinks fit (i) direct an appeal to be heard and decided by a larger bench; (ii) transfer an appeal from one bench to another bench.
(11) The place of sitting and procedure of, and the manner of presenting appeals and other documents to the Tribunal shall, subject to the rules, be such as the Tribunal may deem fit to adopt.
(12) The decision of case heard by a bench shall be in accordance with the opinion of the majority.
Where the members are equally divided the President of the Tribunal may (a) if he was not a member of such bench, give his own opinion or refer the case for the opinion of another member, whereupon the case shall be decided in accordance with such opinions, or (b) from a larger bench.
" The section has been set out in extend in order to appreciate the contentions raised.
As will be apparent from the aforesaid sub section 10(c) that an appeal against an order passed or a decision given under section 35 shall be filed before the President and shall be heard and disposed of by a bench of three members.
So far as revision is concerned, this was the subject matter of section 11 of the Act.
The Sales Tax Act of 1948 under went an amendment in 1984 so far as revision is concerned and as it stands today and so far as it is material for the present purpose, is as follows: "11.
Revision by High Court in special cases (1) Any person aggrieved by an order made under subsection (4) or sub section (5) of section 10, other than an order under sub section (2) of that section summarily dis 433 posing of the appeal, or by an order passed under Section 22 by the Tribunal may, within ninety days from the date of service of such order, apply to the High Court for revision of such order on the ground that the case involves any question of law: Provided that, where such order was served on the person concerned at any time before the date of commencement of this section, as substituted by the Uttar Pradesh Taxa tion Laws (Amendment and Validation) Act, 1978 (hereinafter in this section referred to as the said date), and the period of one hundred and twenty days for making the appli cation as referred to in this sub section, as it existed before the said date, had not expired on the said date the person aggrieved may apply for revision within sixty days from the said date.
" The other sub sections are not relevant for the present purpose.
Section 10 A deals with orders against which no appeal or revision lies and Section 10 B stands for revision by the Commissioner of Sales Tax.
Section 11, as mentioned herein before, stands for revision by the High Court and has been amended from time to time.
In the aforesaid background the question posed in these appeals will have to be examined in the light of the deci sion of the High Court.
The High Court in its judgment under appeal after analysing the provisions of Section 35 observed that the Commissioner entered into the determination of the disputed questions.
Sub clause (2) of Section 35 of the Act, according to the High Court, enjoins on the Commissioner to decide the questions referred to him as he deems fit after giving the applicant an opportunity of being heard.
Under sub clause (5) of Section 35 it has been stated that the decision given by the Commissioner of Sales Tax shall sub ject to an appeal to the Tribunal, be final.
The High Court while examining the section noticed that when an appeal against the order passed under Section 35 of the Act is before the Tribunal, the appeal is to be heard and disposed of by a bench of three members, although in regard to other appeals before the Tribunal these can be disposed of even by a single member or by a bench consisting of two members.
The High Court noted that under subclause (5) of section 35 of the Act prior to its amendment brought out by U.P. Act No. 12 of 1979, an appeal used to lie to the High Court against the order of the Commissioner of the Sales Tax.
By the 434 aforesaid amendment brought out by U.P. Act No. 12 of 1979 under clause (5) of section 35 the words "High Court" have been deleted and substituted by the word "Tribunal".
The learned Judge of the High Court observed that an appeal before the Tribunal was specially treated by the legislature and it was enjoined that it should be disposed of by a bench of not less than three members.
The learned Judge noted that the Division Bench of the High Court in the case of Indo Lube Refineries vs Sales Tax Officer, Sector l, Gorakhpur, [1987] 66 STC 145 had taken the view that an order passed by the Commissioner under Section 35 of the Act was an adminis trative order and in so doing he did not act as a Tribunal.
In this connection reference may be made to the Division Bench decision of the High Court of Allahabad in Indo Lube Refineries (supra).
There the petitioner filed a writ peti tion contending that as the order of the Commissioner of Sales Tax had become final under sub section (5) of section 35 of the U.P. Sales Tax Act, 1948, it was binding on the Revenue as well as the petitioner and it was open to the Sales Tax Officer who was inferior in hierarchy to ignore the order of the Commissioner in passing the assessment order.
Dismissing the petition, it was held by the High Court that the Sales Tax Act had made a clear distinction between judicial proceedings which had to be conducted and concluded in accordance with sections 7, 9, 10, 10 B, 21 and 35 and the High Court noted that the proceedings under sections 7 to 10 B were of different character than the one contemplated under section 35, and it excluded a proceeding pending before a court or before an assessing authority under section 7 or section 21.
It was a type of miscellane ous jurisdiction, it was held, to be exercised only in given circumstances or situations.
In respect of proceedings under section 7, which will take within itself an appeal and revision, the legislature had not made the Commissioner a final arbiter.
The Sales Tax Officers or the assessing authority while determining the turnover with a view to assess tax liability acts as a tribunal.
Likewise, the appellant authority under section 9 and the Tribunal under section 10 of the Act are tribunals.
The Commissioner did not act as a tribunal while dealing with an application under section 35.
The nature of his jurisdiction is adminis trative according to the High Court.
The legislature, ac cording to the High Court, has used the language "otherwise than in a proceeding pending before a court or before an assessing authority under section 7 or 21" deliberately with a view to maintain and preserve the sanctity of the judicial proceedings under the Act.
The word "final" used in sub section (5) of section 35 is only with regard to the pro ceedings contemplated by that section and the order of the Commissioner 435 would be final.
But this will not bar the other authorities under the Act from deciding the controversy before it on its own by looking to the evidence and considering the question of law which comes before it.
Therefore, the High Court rejected the submission that the order of the Commissioner of Sales Tax is binding in the assessment proceedings and those proceedings have to be decided in accordance with the same.
It is difficult to accept the position that under sec tion 35 which empowers the Commissioner to determine disput ed questions and the Commissioner under sub section (2) after giving the parties opportunity of being heard, decides a question, his order can be called to be an administrative order.
In our opinion, the very language of the section which enjoins a decision by the Commissioner envisages that the decision is quasi judicial or judicial and cannot be characterised as administrative.
Whether that decision will be binding on other party and what will be the effect of the decision of the Commissioner of Sales Tax in pending assess ment proceedings is another matter and we are not concerned in these appeals with that question.
We are concerned with the question whether on the language of the section a revi sion is entertainable from the decision of the Commissioner which has been subjected to an appeal to the Tribunal.
In our opinion, in view of the language used specifically in the absence of a provision that such a revision will be maintainable, such revision will not be.
Sub section (5) of section 35 after the amendment states that the decision of the Commissioner of Sales Tax under this section shall, subject to an appeal to the Tribunal, be final.
In view of the language of that section, in our opinion, it cannot contemplated a further revision to the High Court against a decision of the Tribunal.
In Kydd vs Watch Committee of City of Liverpool, , 331 32, Lord Lorebum, L.C., construing the provisions of section 11 of the Police Act, 1890 of England which provided an appeal to quarter sessions as to the amount of a constable 's pension, and also stipu lated that the court shall make an order which shall be just and final, observed: "Where it says, speaking of such an order, that it is to be final, I think it means there is to be an end of the busi ness at quarter sessions . . " The Judicial Committee in Maung Ba Thaw vs Ma Pin, [1933 34] 61 LR Indian Appeals 158 while dealing with the Provincial Insolvency 436 Act observed that when a fight of appeal was given to any of the ordinary courts of the country, the procedure, orders and decrees of that court would be governed by the ordinary rules of the Civil Procedure Code and therefore an appeal to Privy Council was maintainable by the decision of the High Court.
Here in the instant case the right of appeal has been given under the Act not to any ordinary court of the country under the Code of Civil Procedure but to the courts enumer ated under the Sales Tax Act and the revision is contemplat ed under the provisions of the Sales Tax Act. 'Final ' in the section means that it is final and under the Act subject to the limited procedure contemplated under the Act.
The inten tion of the legislature, in our opinion, in the amended scheme of the Act is clear and manifest and meaningful and the scheme of the Act is to regulate the determination of the question as to the assessability and liability and questions in connection thereto.
The observations of Lord Lorebum, L.C. were referred to in South Asia Industries Pvt. Ltd. vs S.B. Sarup Singh, , where this Court observed at page 766 of the report that the expression "final" prima facie meant that an order passed on appeal under the Act was conclusive and no further appeal lay.
A right to revision under the Act is a right given by the Act.
In this connection, observations in M/s. Jetha Bai and Sons, Jew and others vs M/s. Sunderdas Rathenai and others, may be relied on.
We have noted that section 11 of the Act after the amendment stipulated that any person being aggrieved by an order made under sub section (4) or sub section (5) of Section 10, other than an order under sub section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal, may apply for revision.
Where an appeal is not disposed of summarily but by a decision, as in this case, and where the appeal is contemplated in such a situation, to be heard by a bench of three Judges, in our opinion, if any further revision would have laid from the decision of the Tribunal then such deci sion of the Commissioner would not have been made final by sub section (5) of Section 35.
It may be mentioned that the Tribunal after exhaustively considering the contentions of the case allowed the appeal in part and the order of the Commissioner of Sales Tax was modified by holding that the process of repairing and refilling of the cotton bowls of the customers did not amount to "manufacture" as defined in Section 2(e 1) of the Act, as amended by the U.P. Sales Tax (Amendment and Validation) Act, 1985 with effect from 2nd February, 1985.
In the scheme of the Act, in our opinion, it was enjoined that such an appeal is to be heard by a bench of three judges.
437 Where it was provided that the decision of the Commissioner would be final subject to an appeal to the Tribunal, in our opinion, it would be incorrect to contemplate that in such a situation a further revision under Section 17 lay to the High Court.
Revision to the High Court in special cases under Section 11 is contemplated on the ground that the case involved a question of law.
It may be mentioned that the High Court had mentioned that under sub clause (5) of sec tion 35 of the Act prior to its amendment that an appeal used to lie to the High Court against an order of the Com missioner of Sales Tax.
By the aforesaid amendment brought forward by the U.P. Act 12 of 1979 under clause (5) of Section 35 the words "High Court" have been deleted and substituted by the word "Tribunal".
It appears that the High Court was right, therefore, in holding that an appeal to the Tribunal against an order of the Commissioner lies.
So far as the appeal before the Tribunal against the order passed under section 35 is concerned, special treatment has been provided for by the legislature.
The Tribunal has come in place of the High Court in hearing the appeal.
In such a situation to contemplate when the language of the section envisages that the order of the Commissioner would be final, subject to an appeal to the Tribunal that a further revision lay to the High Court would be unwarranted.
As mentioned hereinbefore, we have to find out the intention of the Legislature in such a situation.
The intention of the Legis lature is a slippery phrase as observed in Aron Salomon vs A. Salomon and Company Ltd., ; , 38 see also observations in Lord Howard De Walden vs Inland Revenue Commissioners, [1948] All England Reports page 825.
In such cases it is better to find out the intention of the legisla ture from the words used by the natural meaning of the words and spirit and reason of the law.
See Cross on Statutory Interpretation, Second Edition, page 21.
Having regard to the scheme manifested from the amend ment, that is to say, to make the Commissioner 's decision final, subject to an appeal to the Tribunal where the Tribu nal is enjoined to hear such an appeal by a bench of three members and where revision is provided only in special cases, in our opinion, it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further revision lay to the High Court under section 11 of the Act.
In our opinion, therefore, the High Court was right that no further revision in such a situation lies to the High Court.
This, however, does not eliminate the cor rection by the High Court.
In an appropriate case by exer cise of a writ of certiora under Article 226 of the Consti tution it exercises superintendence over all courts and tribunals throughout the 438 territory.
See in this connection Re Gilmore 's Application, [1957] 1 All England Reports 796.
We are not concerned with that situation in these appeals.
In that view of the matter it appears to us that the High Court is right in so far as it held that no revision lay to the High Court.
These appeals, therefore, fail and are dismissed.
Par ties will pay and bear their own costs.
N.V.K. Appeals dismissed.

summary:
The assessee respondent in the appeals was engaged in the repairing and refilling of cotton bowls on the shafts which are used as part of calendering machine in the textile industry.
The cotton bowl is a shaft made of steel on which a thick layer of cotton is pasted and affixed.
It is used in the textile finishing industries as an essential part of the calendering machine.
In the course of its use the cotton pasted on the shaft loses its thickness and shape and after sometime it requires repairing and refilling.
The assessee moved an application under section 35 of the U.P. Sales Tax Act, 1948 and the decision inter alia included the question whether the job of repairing and refilling of cotton bowl and the process involved therein amounted to "manufacture" or "sale" within the meaning of the Act.
The Commissioner of Sales Tax decided both these ques tions against the assessee, and the assessee preferred an appeal before the 422 Sales Tax Tribunal.
The Tribunal allowed the appeal in part.
It held that the process of repairing and refilling of cotton bowl of the customers did not amount to "manufacture" as defined under section 2(e i) of the Act.
It further held that such an activity of the assessee amounted to "sale" as defined under section 2(h) of the Act as amended by the U.P. Sales Tax Amendment and Validation Act, 1985.
The:Commissioner of Sales Tax preferred a revision to the High Court which went into the question whether a fur ther revision lay to the High Court.
It came to the conclu sion having regard to the scheme of the provisions contained in section 35 and the amendment made by the U.P. Act 12 of 1979, and the earlier Division Bench decision of the High Court in Indo Lube Refineries vs Sales Tax Officer, [1987] 66 S.T.C. 145 (All) that no further revision lay to the High Court from the order of the Tribunal.
The High Court accord ingly dismissed the revision.
The Commissioner appealed by special leave to this Court.
On the question: whether a revision shall lie to the High Court from the decision of the Commissioner under section 35 of the U.P. Sales Tax Act which has been the subject matter of an appeal before the Tribunal.
Dismissing the Appeals, the Court, HELD: 1.
The very language of section 35 of the U.P. Sales Tax Act, 1948 which enjoins a decision by the Commis sioner envisages that the decision is quasi judicial or judicial and cannot be characterised as administrative.
The question is whether on the language of the section a revi sion is entertainable from the decision of the Commissioner which has been subjected to an appeal to the Tribunal.
In view of the language used specifically in the absence of a provision that such a revision will be maintainable such revision will not be.
[435C E] 2.
Sub section (5) of section 35 after the amendment states that the decision of the Commissioner of Sales Tax under this section shall, subject to an appeal to the Tribu nal, be final.
In view of the language of that section, it cannot contemplate a further revision to the High Court against a decision of the Tribunal.
[435E F] Indo Lube Refineries vs Sales Tax Officer Sector l.
Gorakhpur, [1987] 66 STC 145, approved.
423 3.
In the instant case, the right of appeal has been given under the Act not to any ordinary Court of the country under the Code of Civil Procedure but to the courts enumer ated under the Sales Tax Act, and the revision is contem plated under the provisions of the Sales Tax Act.
[436B] 4.
"Final" in section 35 means that it is final and under the Act subject to the limited procedure contemplated under the Act.
The expression 'final ' prima facie means that an order passed under the Act was conclusive and no further appeal lay.
A right to revision under the Act is a right given by the Act.
[436C D] Kydd vs Vatch Committee of City of Liverpool, , 331 32; Maung Ba Thaw vs Ma Pin, [1933 34] 61 LR Indian Appeals 158; South Asia Industries Pvt. Ltd. vs S.B. Sarup Singh, and M/s. Jetha Bai and Sons Jew and others vs M/s. Sunderdas Ratheni and others; , , referred to.
Revision to the High Court in special cases under section 11 is contemplated on the ground that the case involved a question of law.
[437B] 6.
Having regard to the scheme of the U.P. Sales Tax Act, 1948 manifested from the amendment, to make the Commis sioner 's decision final, subject to an appeal to the Tribu nal where the Tribunal is enjoined to hear such as appeal by a Bench of three members and where revision is provided only in special cases, it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further revision lay to the High Court under section 11 of the Act.
The High Court was, therefore, right that no further revision in such a situation would lie to the High Court.
[437F G] 7.
This, however, does not eliminate correction by the High Court.
In an appropriate case by exercise of a writ of certioraris under Article 226 of the Constitution it exer cises superintendence over all Courts and Tribunals through out the territory.
[437G H] Re Gilmore 's Application, [1957] 1 All England Reports 796, referred to.
The intention of the legislature is a slippery phrase.
It is better to find out the intention of the legis lature from the words used by the natural meaning of the words and the spirit and reason of the law.
[437E] 424 Aron Salomon vs A. Salomon and Company Ltd., ; ,38; Lord Howard De Walden vs Inland Revenue Commis sioners,[1948] 2 All England Reports page 825.
referred to.
Cross Statutory Interpretation (Second Edn.) p. 21.
referred to.


judgement:
ivil Appeal No. 525 of 1989.
From the Judgment and Order dated 11.12.1985 of the Calcutta High Court in Civil Rule No. 2716 of 1981 Shankar Ghosh and Rathin Das for the Appellant.
D.P. Mukherjee, and G.S. Chaterjee for the Respondent.
The Judgment of the Court was delivered by 399 RAY, J.
Special leave granted.
Heard learned counsel for both the parties.
This appeal on special leave arises out of an applica tion for preemption filed under the provisions of Section 8 of West Bengal Land Reforms Act, 1955 (West Bengal Act X of 1956) by the respondent, Md. Nasiruddin to pre empt the land sold to the appellant, Abdulla Kabir by a Kobala dated May 16, 1974 by a co sharer having 1/4th interest in plot No. 115/852 appertaining to Khatian No. 1944 on the ground of his being co sharer in the said holding.
The land in ques tion i.e. plot No. 115/852 measuring 0.3 cents was owned by one Sarat Chandra Dutta, son of Amulaya Ratan.
Sarat Chandra Dutta was an agriculturist and he used to keep his agricul tural implements in the said property.
He also possessed along with the said land other agricultural lands as agri culturist and in occupancy raiyati interest.
During R.S. operation also the said property was recorded in his name as 'Raiyat Sthitiban ' and the classification of land was re corded as 'Bari ' i.e. homestead of the said agriculturist.
On September 20, 1967, Sarat Chandra Dutta, owner of the said plot of land, sold the same by a registered Kobala to four persons namely Sisir Kumar Mondal, Naba Kumar Mondal, Madhusudan Mondal and Purmlakshmi Mondal.
Thereafter on October 28, 1968 Sisir Kumar Mondal and Naba Kumar Mondal sold their shares to Nurunessa Khatun, predecessor of the respondent petitioner.
On the basis of this Kobala Nurunessa Khatun became co sharer in respect of the said land.
After the death of Nurunessa Khatun her heirs including the eldest son, the respondent petitioner, inherited the right of occupancy as co sharer.
On May 16, 1974, Purnalakshmi sold her 1/4th interest to the appellant, Abdulla Kabir by Kobala (Exh. l(b).
It is the case of the respondent petitioner that as no notice of the said sale was served on his mother, Nurunessa Khatun, he could not know of the said sale earli er.
However, on taking certified copy of the said sale on May 3, 1977, the respondent petitioner filed an application for pre emption under Section 8 of the West Bengal Land Reforms Act after depositing the requisite sum as required to be deposited under the said Act.
This application was registered as Misc.
Case No. 36 of 1977 in the Court of Munsif, 2nd Court, Bolpur.
The appellant contested the case by filing a written objection contending inter alia that the respondent petitioner was neither co sharer of the holding nor an adjoining land owner.
The disputed property is non agricultural tenancy.
The petition for preemption is barred by limitation as the respondent petitioner was all along aware of the said sale and the story of his coming to know of such sale after taking copy of sale deed on May 3, 1977 was absolutely false.
400 The distuted deed does not contain the recital that the respondentpetitioner was an adjoining land owner.
The peti tion for pre emption in such circumstances was liable to be dismissed.
Three issues were framed by the Trial Court i.e.: (1) Whether the case land is non agricultural and whether section 8 of the West Bengal Land Reforms Act will be ap plicable in this case; (2) Whether the petitioner was a co sharer in respect of case holding from before purchase of the disputed land; (3) Whether the case is barred by limitation? The Trial Court held that the petitioner respondent was a cosharer and was entitled to pre empt; the application for pre emption was not barred by limitation as it was filed within a period of three years of knowledge of the same as no notice of sale was served on the petitioner respondent.
The Trial Court further held that the subject matter of the sale was recorded as "Bastu" in the Kobala dated May 16, 1974 (Exh. l(b) and "Bari" in the R.S. Record of Right (Exh.
3(h) and though Sarat Chandra Dutta, the owner of the land was an agriculturist yet this homestead land being not included in the raiyat holding could not be treated as agricultural land according to the provisions of West Bengal Land Reforms Act because of the nonagricultural use as evident from the R.S. Record of rights.
The land is non agricultural land and as such the application for pre emp tion under Section 8 of the said Act was not maintainable.
The Misc.
Case was, therefore, dismissed.
Against the said judgment and order, Misc.
Appeal No. 84 of 1980 was filed by the respondent in the 2nd Court of the Addl.
District Judge, Birbhum.
The appellate court reversed the findings of the trial court and held that the suit property was recorded as of raiyati interest in the R.S. Record of rights and the suit land being the homestead of Sarat Chandra Dutta who was an agriculturist, it was agri cultural land according to the provisions of the said Act and the application for pre emption under Section 8 of the West Bengal Land Reforms Act was maintainable.
The appellate court further upheld the findings of the trial court that the application was not barred by limitation and the appel lant (respondent herein) was a co sharer of the said land.
The Misc.
Appeal was, therefore, allowed and the judgment of the trial court was set aside.
401 Against this judgment and order of the appellate court, the appellant, Abdulla Kabir filed a petition in revision being C.R. No. 2716 of 1981 in the High Court at Calcutta.
During the pendency of the said Revisional case the respond ent pre emptor made an application for amendment of the relief claimed in the application for pre emption by adding an alternative relief for pre emption under Section 24 of the West Bengal Non Agricultural Tenancy Act.
After hearing both the parties, the amendment was allowed subject to the payment of costs quantified at Rs. 1,000.
Thereafter, on December 11, 1985 the Civil Rule was discharged by holding that: " . .
I am not satisfied that the finding recorded by the appellate court based as it is on an assessment of evidence, suffers from any jurisdictional defect or error, so as to entitle this Court to interfere in revision.
This Court cannot enter into evidence and come to its conclusion.
" It has also been held that in view of the amendment of the petition even if it is held that the land was non agri cultural land, preemption could be granted under Section 24 of the Non Agricultural Tenancy Act.
Against this judgment and order, the instant appeal on special leave has been preferred in this Court.
Dr. Ghosh, learned counsel appearing on behalf of the appellant has contended in the first place that the land in question has been recorded as "Bari, teen khanna ghar" in the R.S. Record of rights i.e. it is not agricultural land.
The land is used for non agricultural purposes though the right of the owner of the land has been recorded as agricul turist "raiyat sthitiban.
" He further contended that as the 'bari ' or the homestead is not situated on the agricultural land in the holding held by a Raiyat, it cannot be treated as agricultural land.
It is non agricultural land used for non agricultural purposes and the provisions of Section 8 of the Land Reforms Act are not applicable to such a holding as has been held by the trial court.
The finding of the High Court to the effect that there was no error of jurisdiction is wholly unwarranted and as such the appeal should be allowed.
Dr. Ghosh next contended referring to the decision in Eyachhin Ali Naskar and Ant.
vs Golap Gazi, that the nature of the holding whether it is agricultural or non agricultural has to be determined with reference to the user of the land 402 comprised in the holding.
The land in question is used for nonagricultural purposes and it does not form a part of his raiyati holding comprising of Agricultural land.
Therefore, it cannot be treated as agricultural land under the West Bengal Land Reforms Act.
The land being recorded as "Bastu" in the R.S. Record of rights, it is to be treated as non agricultural land.
Dr. Ghosh next submitted that the High Court did not give a definite finding whether Section 8 of the Land Re forms Act or Section 24 of the West Bengal Non Agricultural Tenancy Act was applicable in this case.
Mr. Ghosh, there fore, submitted that there has been an error of jurisdiction and the appeal should be allowed.
Dr. Ghosh has lastly contended that Section 3A was inserted by West Bengal Land Reforms (Amendment) Act, 1981 and assent of the President to the same was published in the Gazette on 24th March, 1986.
Referring to this provision he submitted that the matter should be sent back and the appel lant should be permitted to take such defences in view of the amended provisions as are available to him and the matter should be re heard by the trial court.
He drew the notice of the court to the decisions in Dwarka Nath Prasad Atal vs Ram Rati Devi, and Luigi Ambrosini Ltd. vs Bakare Tinko and Another, A.I.R. 1929 PC 306.
We are unable to accept the contentions made on behalf of the appellant for the reasons stated hereinbelow.
The land in question which is 1/4th share of plot No. 115/852 has been recorded in the R.S. Record of rights as "Raiyat Sthitiban" i.e. the original owner of the said land Sarat Chandra Dutta was a raiyat and the classification of the land has been recorded as "bari".
The entry in the record of right is presumed to be correct and this has not been challenged by any body.
It, therefore, appears that the land in question is the homestead land of Sarat Chandra Dutta who is on agriculturist being recorded as raiyat.
Section 2(6) of the West Bengal Land Reforms Act, 1955 defines holding as: "holding" means the land or lands held by a raiyat and treated as a unit for assessment of revenue.
" Section 2(7) defines land as under: 403 "land" means agricultural land other than land comprised in a tea garden which is retained under sub section (3) of section 6 of the West Bengal Estates Acquisition Act, 1953, and includes homesteads but does not include tank.
Explanation: "Homestead" shall have the same meaning as in the West Bengal Estates Acquisi tion Act, 1953" So according to the above provisions the homestead of an agriculturist is agricultural land.
It has been found by the courts below that the land in question is a homestead land recorded as "Bari" in the R.S. record of rights.
The owner of the said land Sarat Chandra Dutta is also recorded as a raiyat i.e. "raiyat sthitiban".
In other words, it is the homestead of a raiyat i.e. an agriculturist.
The trial court held that this R.S. record of right is not erroneous as the same has not been challenged by any body in the petition.
Rather the respondentpetitioner supported the contention that "Sarat Chandra Dutta, the owner of plot No. 115/852 was mainly an agriculturist and his main source of living was agriculture.
" The learned Munsif however, held that since the said homestead is not included in the holding of the raiyat i.e. the homestead does not stand on the agricultural land included in his holding, the homestead land cannot be treated as agricultural land relying on the decision in Eyachhin Ali Naskar and Anr.
vs Golap Gazi (supra).
This finding of the trial court has been negatived by the lower appellate court as well as by the High Court and it has been held that the said homestead land is agricultural land.
This finding, in our view, is quite valid and legal.
It has been observed by the Calcutta High Court in Eyachhin Ali Naskar and Anr.
vs Golap Gazi that: " . .
It is thus obvious that the nature of the holding has to be determined with reference to the user of its land or lands under the said Act.
Section 2(6) of the West Bengal Land Reforms Act defines "holding" as the land or lands held by a raiyat and treated as a unit for assessment of revenue.
Under clause (7) of Section 2 of the same Act "land" in the Act means agricultural land other than land comprised in a tea garden which is re tained under subsection (3) of Section 6 of the West Bengal Estate Acquisition Act, 1953 and includes homesteads.
" It has been further observed that: 404 " . .
In a case where as here the holding is recorded as bastu and the non agricultural user is also evident, as appearing from the revisional record of rights wherein it has been stated that there are two huts standing thereon, the land cannot be treated as land to which the provisions of the Land Reforms Act will be applicable, as the Act applies to agricultural lands only.
" This observation of the High Court has been made wrongly in as much as the High Court did not take notice of the amended provision of the West Bengal Non Agricultural Tenan cy Act, 1949 amended by Act 8 of 1974.
Section 2(4)(a) defines non agricultural land as land used for purposes not connected with agriculture or horticulture but does not include a homestead to which the provisions of the West Bengal Land Reforms Act, 1955 apply.
Taking notice of this provision it is crystal clear that homestead land does not fall within the province of non agricultural land both under the Non Agricultural Tenancy Act as well as under the West Bengal Land Reforms Act, 1955.
In that view of the matter the whole basis of the observation of the High Court to the effect "that where the holding is recorded as bastu and the non agricultural user is also evident, as appearing from the revisional record of rights wherein it has been stated that there are two huts standing thereon, the land cannot be treated as land to which the provisions of the Land Reforms Act will be applicable as the Act applies to agricultural lands only" is wrong.
The judgment is per incuriam.
As has been stated hereinbefore that the definition of land as given in the West Bengal Land Reforms Act, 1955 refers to agricultural land and includes homestead.
Explanation to sub section 7 of section 2 further provides that "Homestead shall have the same meaning as in the West Bengal Estates Acquisition Act, 1953.
" Section 2(g) of the West Bengal Estates Acquisition Act, 1953 defines; "Homestead" means a dwelling house together with any court, yard, compound, garden, out house, place of worship, family graveyard, library, office, guest house, tanks, wells, privies, latrines, drains and boundary walls annexed to or appertaining to such dwelling house ;" Therefore, on a conspectus of the aforesaid provisions, it obviously follows that homestead of an agriculturist even though the same is included in the holding of the raiyat but not on the agricultural land still it is to be treated as agricultural land being the homestead of the agriculturist under the provisions of the West Bengal Land Reforms 405 Act read with West Bengal Estates Acquisition Act and West Bengal Non Agricultural Tenancy Act.
Therefore, the applica tion under Section 8 of the West Bengal Land Reforms Act filed by the respondentpetitioner as a co sharer of the said holding for pre emption of the land purchased by a stranger i.e. the appellant is maintainable under law as has been rightly held by the lower appellate court as well as High Court.
The application for pre emption under Section 8 of West Bengal Land Reforms Act was properly allowed by lower appellate court and the said order was maintained by High Court.
There is no infirmity in this finding and we uphold the same.
As regards the second contention it appears that by amendment an alternative relief under Section 24 of the West Bengal NonAgricultural Tenancy Act has been inserted in the application for preemption.
It also appears that the said application for amendment was allowed after hearing both the parties and that no objection to the said application for amendment was taken at the time of hearing of the applica tion for amendment nor at the final hearing of the Revision Case any objection was raised on this score.
Moreover, we have already held that Section 8 of West Bengal Land Reforms Act is applicable to this case.
The appellant therefore, cannot be permitted to raise this question anew in this Court.
The last submission advanced on behalf of the appellant is, also, in our considered opinion, of no substance.
Sec tion 3A which has been introduced by West Bengal Land Re forms (Amendment) Act, 1981 is quoted hereinbelow: "3 A. Rights of all non agricultural tenants and undertenants in non agricultural land to vest in the State (1) The rights of all non agricultural tenants and undertenants under the West Bengal Non Agricultural Tenancy Act, 1949 (West Bengal Act XX of 1949), shall vest in the State free from all encumbrances and the provisions of sections 4, 5 and 5A of Chapter II of the West Bengal Estates Acquisi tion Act, 1953 (West Bengal Act I of 1954), shall, with such modification as may be neces sary, apply mutates mutant to non agricultural tenants and under tenants within the meaning of the West Bengal Non Agricultural Tenancy Act, 1949 as if such non agricultural tenants and under tenants were intermediaries and the land held by them were estates and a person holding under a nonagricultural tenant or under tenant were a raiyat.
406 (2) On the vesting of the estates and rights of intermediaries in any non agricultural land under sub section (1), the provisions of Chapter IIS of this Act shall apply.
(3) Every intermediary whose estates or inter ests have vested in the State under sub sec tion (1), shall be entitled to receive an amount to be determined in accordance with the provisions of section 14V of this Act.
" The said section refers to the vesting of the interest of nonagricultural tenants by treating them as intermedi aries and a right of retention of such non agricultural lands within the ceiling limit has been provided therein.
This provision has nothing to do with the questions involved in this appeal.
There is nothing to show that the nonagri cultural land in plot No. 115/852 has vested in the State and the same has not been retained by the owner nor there is any thing to show that the original owner, Sarat Chandra Dutta had in his possession non agricultural land exceeding the ceiling limits even assuming for arguments sake that the land in question is non agricultural land.
But we have held hereinbefore that the land being homestead of an agricultur ist is agricultural land.
Therefore, the amended provision of Section 3 A of the said Act does not require considera tion in the instant appeal in the background of the facts and circumstances of the case and the issues involved here in.
The submission made on behalf of the appellant that the matter should be sent back to the trial court for giving the defendant an opportunity to raise issues on the amended provision for hearing and deciding the same by the court, is not tenable.
In the circumstances it is needless to consider the decision in Dwarka Nath Prasad Atal vs Ram Rati Devi (supra).
In that case an application was filed under Section 24 of West Bengal NonAgricultural Tenancy Act asking for pre emption in respect of the property mentioned in Schedule A of the application.
The appellant resisted the respond ent 's claim for pre emption on various grounds including the ground that the property involved in the proceedings being agricultural land civil court in which the respondent had filed her application for pre emption had no jurisdiction to entertain the application for pre emption by reason of the provisions of the West Bengal Land Reforms Act.
The learned Subordinate Judge held that the property involved in the proceeding was agricultural land and so Section 24 of West Bengal Non Agricultural Tenancy Act was not attracted and civil court had no jurisdiction to entertain the applica tion.
The application was dismissed.
The order was set aside on appeal holding that the land was non agricultural land and the Subordinate 407 Judge had jurisdiction to entertain the application.
The judgment having been confirmed in appeal by the High Court of Calcutta, the petitioner filed an appeal on special leave before this Court.
It had been held that since the judgment was rendered only on the preliminary question whether the court had jurisdiction to entertain the application and the other issues raised therein were not decided by the trial court, the lower appellate court over ruled the said finding but instead of remanding the matter to the trial court for decision on the other issues, disposed of the matter on merits whereas on the other issues the appellant might desire to lead evidence but that opportunity was denied to him.
It was in the interest of justice that the appellant should be afforded an opportunity of being heard on the other issues.
In that view of the matter the case was re manded for disposal.
The decision in Luigi Ambrosini, Ltd. vs Bakare Tinko and Another (supra) does not apply to this case as the facts of that case are different from the facts of the instant case.
As stated hereinbefore that this ruling has no applica tion to the facts of this case inasmuch as the application was not decided on a preliminary issue but the same has been decided on all the issues raised.
Therefore, there is no question for remanding the matter for decision on the other issues.
We therefore, find no substance in this contention advanced by the learned counsel for the appellant.
For the reasons aforesaid we do not find any infirmity nor any illegality in the findings arrived at by the High Court.
We, therefore, dismiss this appeal and uphold the judgment and order of the High Court.
In the facts and circumstances of the case, there will be no order as to costs.
N.V.K. Appeal dis missed.

dataset_name: IN-Abs

summary:
An application for pre emption was filed under the provisions of section 8 of the West Bengal Land Reforms Act, 1955 by the respondent to pre empt a plot of land sold to the appellant by a Kobala dated May 16, 1974 by a co sharer having 1/4 interest in the plot.
The land in question was owned by an agriculturist and he used to keep his agricultural implements in the said property.
He also possessed other agricultural lands as agriculturists and in occupancy raiyati interest.
The suit property was recorded in his name as 'Raiyat Sthitiban ' and the classification of land was recorded as 'Bari ' i.e. homestead of the said agriculturist.
On September 20, 1967 the land was sold by a registered Kobala to 4 persons, and on October 28, 1968 one of the persons sold his share to the predecessor of the respondent.
On the basis of this Kobala it was alleged that he was a co sharer.
The respondent filed an application for pre emption under section 8 of the West Bengal Land Reforms Act, 1955.
The appellant contested the same contending in the written statement that the respondent was neither co sharer of the holding nor an adjoining owner and that the disputed proper ty is non agriculture tenancy, that the petition was barred by limitation as the respondent was all along aware of the sale of the property and that the story of his coming to know only after taking copy of the sale deed was absolutely false.
397 The Trial Court held that the respondent was a co sharer and was entitled to pre empt, the application of pre emption was not barred by limitation as it was filed within a period of 3 years of the knowledge of the same as no notice of the sale was served on the respondent.
The Trial Court further held that the land was non agricultural land and as such the application for pre emption under section 8 was not main tainable.
The miscellaneous case was accordingly dismissed.
The respondent filed an appeal, and the Additional District Judge reversed the findings of the Trial Court, and held that the suit property was recorded as raiyati interest in the R.S. Record of Rights and being the homestead land of an agriculturist, the application for pre emption under section 8 was maintainable.
The appeal was allowed and the judgment of the trial court was set aside.
The appellant filed a revision petition in the High Court.
During its pendency he made an application for amend ment claiming alternative relief for pre emption under section 24 of the West Bengal NonAgricultural Tenancy Act, 1949.
The High Court held that even if the land was non agricultural land, pre emption could be granted under sec tion 24 of the W.B. Non Agricultural Tenancy Act, but dis missed the petition on the ground that there was no juris dictional defect or error entitling the Court to interfere in revision.
In the appeal to this Court by special leave, it was contended on behalf of the appellant that the land has been recorded as in the R.S. Record of rights as non agricultural land, and that the Trial Court had rightly held that Section 8 of the Land Reforms Act was not applicable to such a holding.
The decision of the High Court to the effect that the finding recorded by the Appellate Court to the contrary suffered from no jurisdictional error was therefore wholly unwarranted.
Relying on Eyachhin Ali Naskar vs Golap Gazi, it was contended that nature of holding had to determined with reference to the user of land comprised in the holding.
Dismissing the appeal, HELD: 1.
The application for pre emption under section 8 of West Bengal Land Reforms Act was properly allowed by the lower appellate court and the said order was maintained by High Court.
There is no infirmity in this finding, and the same is upheld.
[400G H] 398 2.
The definition of land as given in section 2(7) of the West Bengal Land Reforms Act, 1955 means agricultural land, and includes homesteads.
But, homestead land does not fail within the province of non agricultural land both under the Non Agricultural Tenancy Act as well as under the West Bengal Land Reforms Act, 1955.
Eyachhin Ali Naskar and Anr.
vs Golap Gazi, per incuriam & over ruled.
[404E F] 3.
On a conspectus of the provisions contained in sec tion 2(8) W.B. Estates Acquisition Act 1953 & section 2(4)(a) W.B. NonAgricultural Tenancy Act, 1974 it follows that 'Homestead ' of an agriculturist even though the same is included in the holding of the raiyat but not on the agri cultural land, still it is to be treated as agricultural land being the homestead of the agriculturist under the provisions of the West Bengal Land Reforms Act read with West Bengal Estates Acquisition Act and West Bengal Non Agricultural Tenancy Act.
[404G H; 405A] 4.
There is nothing to show that the non agricultural land in the instant case has vested and the same has not been retained by the owner, nor is there anything to show that the original owner had in his possession non agricul tural land exceeding the ceiling limits, even assuming that the land is non agricultural land.
But the land being home stead of an agriculturist is agricultural land.
Therefore, the amended provision of section 3A of the West Bengal Land Reforms Act does not require consideration in this matter.
[406C E] Dwarka Nath Prasad Atal vs Ram Rati Devi, and Luigi Ambrosini, Ltd. vs Bakara Tinko and Another, A.I.R. 1929(PC) 306, distinguished.


judgement:
vil Appeal Nos.
2665 72 (NT) of 1981 etc.
From the Judgment and Order dated 9.1.1980 of the Madras High Court in Tax Case Nos. 894, 895 of 1977, 591, 942,968, 975 of 1979 and W.P. Nos. 4951 and 4952 of 1978.
section Padmanabhan, R. Mohan and R.A. Perumal for the Appel lant.
T.A. Ramachandran, A.K. Sen, Mrs. J. Ramachandran, Inbarajan, P.N. Ramalingam, A.T.M. Sampath and A.V.V. Nair for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
All these civil appeals and special leave petitions raise a common question as to the interpre tation of an expression used in the .
Some of these matters arise out of judgments of the High Court in Tax Revision cases and some out of judgments in writ petitions but the point involved is the same.
1n view of the pendency of the appeals, we grant leave in the spe cial leave petitions after condoning the delay in filing some of them and proceed to dispose of all the appeals by a common order.
The respondents are all dealers in hides and skins carrying on business in the State of Tamil Nadu.
As is well known, raw hides and skins undergo various processes such as cutting, tanning, dyeing, dressing and finishing before they get converted into finished leather and assume a condition fit for the manufacture of various kinds of leather arti cles.
The dispute in these appeals is in regard to two items of goods that are sold by these assessees viz. leather splits and coloured leather.
The splits are the cut pieces, often small and irregular, obtained in the process of cut ting raw of tanned hides and skins either with a view to reduce their thickness or with a view to give them a regular shape.
Coloured leather is obtained when the tanned hides and skins are dyed with various colours.
The assessee, inter alia, deal in these two items, their manner of such dealing varying from case to case.
Some of them obtain the leather splits in the process of cutting and sell them while 449 some purchase the cuttings and sell them as such.
So also, the coloured leather is obtained by some of the assessees in the process of finishing and they sell them while others purchase the coloured leather and sell them as such.
The assessees ' claim is that these two items fall in the list of "goods of special importance in inter State trade and com merce" set out in section 14 of the (the 'CST Act ') and that, therefore, the assessee is enti tled, in respect of their sales, to the concessions avail able under section 15 of the CST Act viz. the benefits of single point taxation and of a smaller rate of tax.
The sole ques tion in these appeals is whether the High Court was right in upholding this claim.
The principal judgment of the High Court on this point has been reported as Mahi Traders vs State of Tamil Nadu, [1980] 45 S.T.C. 327.
The relevant entry in section 14 of the CST Act reads: "14(1)(iii) hides and skins, whether in a raw or dressed state.
" The short case of the department is: (a) that leather splits or cuttings are "scrap" and do not qualify any longer to be described as hides and skins; and (b) that coloured leather is a totally new and sophisticated product known as leather and can no longer be described merely as hides and skins.
The department 's case is best explained in a passage from the order of the Board of Revenue which accepted the depart ment 's contention.
It observed: "The contentions have been examined with reference to the connected records.
The splits are only pieces of leather obtained in the process of getting leather of uniform thick ness from dressed skins.
Such splits cannot be treated as dressed hides and declared goods.
The expression "raw or dressed skin" in sec tion 14 of the has a distinct connotation and it cannot be extended to leather bits obtained in a process.
These splits are of much lesser value and cannot be equated to dressed skins.
In 27 S.T.C. page 385 the Orissa High Court has held that if steel plates are cut to sizes, they cease to be the original product.
What should be con sidered is whether those leather splits are commercially understood as dressed hides and skins.
If they are understood only as just skins as claimed, there is no need to call them as splits in commercial parlance.
The Courts have repeatedly ruled that the entries in the Act 450 should be treated only as understood by the Trade.
These splits were produced before the Board at the time of hearing.
They were found to be thin pieces which can be utilised only for miscellaneous purposes.
The contention that these leather splits continue to be dressed skins and are declared goods of inter state importance, is untenable.
The assessing officer was therefore right in treating these splits as scraps and taxing them at the multi point rate, and in the absence of 'C ' forms, at 10%.
As regards the coloured skins, once the dressed skins bought are split and the upper layer of uniform size is coloured or dyed, such coloured skins become different products.
They are finished leather sold as coloured skins and not as dressed skins.
They are commercially different, and are treated and dealt with in trade circles as different products.
The process of dyeing or colouring changes the commercial nature of the dressed skins.
There are different patterns of dyeing and colouring.
The complete piece may be dyed or coloured uniformly with a single colour or with a pattern of colours, depending upon the requirements of the prospective consumers in the market.
As the dressed skins are subjected to process, first by splitting and secondly by colouring they become different products.
Pieces of coloured and dyed leather were produced before the Board at the time of hearing.
Some pieces were coloured With a single colour on one side and dyed on the reverse.
They can be used straightaway for manufacturing leather goods.
They were also in patterns.
The contention that no change is involved has therefore no force.
Both the Appellate Assistant Commissioner and the Assessing Officer were not therefore correct in allowing exemption.
" On the other hand, on behalf of the assessees, refer ence is made to certain circulars of the authorities which contain a contemporaneous exposition of the meaning of the entry in question, reliance is placed on the decision of the Sales Tax Appellate Tribunal to the contrary and it is emphasised that, to say that the one item is called scraps and the other is called leather is not sufficient to take them out of the description "hides and skins, in a raw or dressed state".
It is submitted that cuttings of hides and skins do not cease to be hides and skins merely because they are small pieces and can be loosely described as "scraps".
So far as coloured leather is concerned, according 451 to the assessee, the question is not whether the coloured skin is described as leather or whether it is a new product different from hides and skins, as understood generally, but what exactly is the scope of the expression used in entry (iii) of section 14(1).
The submission is that hides and skins are generally described as leather even as soon as tanning is done but the entry in the statute goes much beyond this stage.
It takes in all categories of hides and skins right from their raw condition, through various stages of their tanning and other processing, right upto the stage when they receive the final finishing touches.
We have heard learned counsel on both sides at length and come to the conclusion that the assessees are entitled to the benefit of Ss. 14 and 15 of the CST Act in respect of the two items in question.
As far as the first item is concerned, it is common ground that leather splits are nothing but cut pieces of hides and skins.
We fail to see how they cease to be hides and skins.
It is no doubt true that they are cheaper and have a separate name but the name only indicates that they are cut pieces.
It is not because they have ceased to be hides and skins and constitute a different commercial commodity that they are called 'scraps '.
Some of the dealers purchase and sell such splits and such turnover is considerable.
There is no material to suggest that they are useless or worthless articles.
A loose description of them as 'scrap ' cannot deprive them of the benefit of section 14 of the Act.
Turning to coloured leather, we may, at the outset, refer to a very important circumstances referred to by the respondents.
When the CST Act came into force on 1.4.1957, a question was raised regarding the meaning of the expression 'hides and skins in dressed state ' used in section 14.
The matter was referred to the leather development wing of the Ministry of Commerce and Industry which gave the following opinion: "Hides and Skins are obtained from either slaughtered or dead animals.
The raw hides and skins thus obtained are known to be in the Green State.
These are easily putrescible; if proper precautions are not taken they would easily rot and decay.
Since tanneries are not always located very near the source of raw hides and skins, the question of preserving them for a temporary period till they reach a tanning centre assumes importance.
Raw hides and skins are 'cured ' by either wet salting, dry salting or drying.
In the 'cured state ' the raw materials can be preserved for a temporary period.
In the third state of tempo rary preserva 452 tion, the hides and skins are 'picked '.
During the next stage they are tanned in which state they can be preserved almost indefinitely.
These tanned hides and skins are processed further to yield Dressed Hides and Skins which are ready for use. 'Dressed ' or finished material could also be preserved almost indef initely.
From the above, it will be seen that the expression 'Hides and Skins in the raw or dressed State ' refers at one end to the raw material obtained from the slaughtered or dead animals and at the other end to the tanned and finished material; the expression, therefore, seems to include the other intermediate stages indicated in the previous paragraphs.
Dress ing, according to the authoritative interpre tations, would mean the conversion of tanned hides and skins by further suitable processing into leathers of different types which are ready for use" (vide SBT/ .
18(495/14) of November 11, 1957).
It would seem though this is not quite clear from the record, that this opinion held the field for quite some time until the assessments presently in question were made.
Even here, as pointed out by the High Court, the departmental view was not quite consistent.
The Deputy Commercial Tax Officer, in some of the cases, was willing to concede that coloured leather, notwithstanding the colouring, continued to be dressed hides and skins but thought that leather splits should be brought to multipoint tax.
The Assistant Commissioner, on the contrary, took the view that splits would continue to be hides and skins.
It was the Board of Revenue that decided that both items would fall outside the purview of item (iii) in section 14(1).
It has been pointed out by this court in Desh Bandhu Gupta and Ors.
vs Delhi Stock Exchange, ; , and Varghese vs ITO, that a contemporane ous exposition by the administrative authorities is a very useful and relevant guide to the interpretation of the expressions ' used in a statute.
Considering that the above clarification was sought for at the earliest point of time when a doubt arose as to the scope of the expression used by the statute and given after considering the technicalities of the processes employed in the manufacture of finished leather by the department fully conversant with this branch of trade and in the context of the provisions of this very statute, the terms of the statute can well be construed by reference to such exposition, in the absence of anything in the statute 453 to indicate the contrary.
Indeed, "such interpretation should be shown to be clearly wrong before it is overturned.
" Can it then be said that the view expressed above is clearly wrong? We think not; on the contrary, it is seen to be quite correct.
The statutory expression refers to "hides and skins in a dressed state".
The guidelines issued for identification of 'finished ' leather for exports by the Indian Standards Institution (ISI) refer to as many as 19 operations or processes undergone during manufacture of 'finished leather ' but 'dressing ' is not one of them.
A glossary of terms relating to hides, skins and leather published by the I.S.I. in 1960 contains the following definitions: CRUSTS: (Crust Leather) Tanned hides and skins without any finish.
CURRYING: A series of dressing and finishing processes applied to leather after tanning in the course of which appropriate amounts of oils and greases are incorporated in the leather to give it increased tensile strength, flexibility and resisting properties.
DRESSED RIDES: Tanned hides, curried or other wise finished, for various purposes, such as belting, harness and saddlery, travel goods and for upholstery.
DRESSING LEATHER: Vegetable tanned hides which may be dressed to suit the purpose for which they are to be used, such as for harness, saddlery and other mechanical purposes.
LEATHER: The skin or hide of animals prepared by tanning, which still retains its original fibrous structure more or less intact, but from which hair or wool may or may not have been removed and which has been treated so as to be imputrescible even after treatment with water.
The earlier glossary of such terms published by the British Standards Institution defines 'dressing ' as a "general term for the series of processes employed to con vert certain rough tanned hides and skins and/or crust leather into leather ready for use.
" Also, "Leather" is defined as "a general term for hide or skin which still retains its original fibrous structure more or less intact, and which has 454 been treated so as to be imputrescible even after treatment with water.
" The hair or wool may or may not have been removed.
Certain skins, similarly treated or dressed, and without the hair removed, are termed 'fur '.
The Dictionary of Leather Terminology published by the Tanners ' Council of America, describes leather as "the hide and skin of any animal or any portion of such skin, when tanned, tawed or otherwise dressed for use.
" The above definitions show that hides and skins acquire the name of 'leather ', even if the hair or wool has not been removed therefrom, as soon as they receive some treatment which prevents them from putrefaction after treatment with water.
Dressing is a stage much later than tanning.
Indeed, from the definitions quoted above, it will be seen that it is practically the same as giving finishing touches to the leather and making it suitable for the manufacture of par ticular types of goods.
Sri Sen invited our attention, apart from the contempo raneous exposition by the Department, to the findings of the Tribunal in this regard in an earlier case which had not been appealed against by the Department.
The Tribunal had said: "We have carefully considered the records as well as the arguments.
We have seen the speci mens of the articles sold.
Bits of the same are also on record.
We have carefully scruti nised the same.
We are unable to say that what the appellants had sold is not leather or in other words dressed hides and skins.
The fact that the appellant has done some more finish ing would not take away the resultant product from the classification.
We do find that the clarification issued by the Board of Revenue, Madras and the Govt.
of India supports the appellants case.
The expert opinion which only says that the resultant product has undergone some chemical changes observed as under: It is, surely a different product, because it is a finished leather.
It however, retains the leathery properties of the dressed leather.
Hence the expert opinion also fully supports the appellants case inasmuch as it concedes that the resultant product is 'finished leath er '.
It is because the issue in appellant 's case is not whether the appellant was selling a different product 455 from the one it purchased, but whether the appellant was selling tanned leather.
In this case, we do not find any factual basis even to cast any doubt upon the appellant 's claim.
It is a pity that the assessing authority should have followed the audit objections without the application of his own mind.
Leather from the stage of raw skins to the stage of dressed hides and skins may undergo various stages of changes.
Under the classification for the purposes of section 14 of the , the various stages are irrelevant.
For the purposes of Tamil Nadu General Sales Tax Act, 1959, only two stages that are rele vant are the skins at the raw stage and the skins in the form of dressed hides and skins (or tanned hides and skins).
The appellant purchases semifinished leather and undertakes further process of finishing with a view to colour the hides and skins for certain uses of skins.
He says that he purchased the same tanned hides and skins and sold the tanned hides and skins.
According to him the products purchased and sold are not different even under the classification by way of the dichot omy between raw and dressed hides and skins under the Tamil Nadu General Sales Tax Act.
Under the , the appellant is in a much better position, because all the hides and skins are brought together in one entry.
Whether raw or dressed, the product falls under the same entry.
" We are of opinion that this represents the correct view of the scope of the entry in question.
The same conclusion is further borne but by the litera ture referred to before us by Sri Ramachandran.
7 of the Encyclopedia Brittanica, under the word "dress", ex plains that the verb has various applications which can be deduced from its original meaning and that "it is thus used not only of the putting on of the clothing but of the pre paring and finishing of leather . . "Vol. 17, under the head "leather" details the various processes applied in the treatment of hides and skins at all stages, pre tanning, tanning and post tanning.
Dyeing or colouring is a process which follows tanning but precedes "finishing" (i.e. dress ing) in order to make it suitable for the purpose for which it is required in commercial usage.
of the "Wealth of India", a publication of the Council of Scientific and Industrial Research (1966), dealing with leather under "Industrial Products" explains that "hides and skins are liable to putrefaction and loss unless 456 suitably treated and converted into leather.
" Structurally, hides and skins have a thick middle layer called corium, which is converted to leather by tanning.
The operations involved in leather manufacture however fall into three groups.
Pre tanning operations include soaking, liming, deliming, bating and pickling, and post tanning operations are splitting and shaving, neutralising, bleaching, dyeing, fat liquoring and stuffing, setting out, samming, drying, staking and finishing.
These operations bring about chemical changes in the leather substance and influence the physical characteristics of the leather, and different varieties of commercial leather are obtained by suitably adjusting the manufacturing operations.
These processes need not be gone into in detail but the passages relied upon clearly show that hides and skins are termed 'leather ' even as soon as the process of tanning is over and the danger of their putrefaction is put an end to.
The entry in the CST Act, however, includes within its scope hides and skins until they are 'dressed '.
This, as we have seen, represents the stage when they undergo the process of finishing and assume a form in which they can be readily utilised for manufacture of various commercial articles.
In this view, it is hardly material that coloured leather may be a form of leather or may even be said to represent a different commercial commod ity.
The statutory entry is comprehensive enough to include the products emerging from hides and skins until the process of dressing or finishing is done.
We are, therefore, of the view that the High Court was right in holding that 'splits ' and 'coloured leather ' con tinue to be hides and skins eligible for special treatment under the CST Act.
All the appeals, therefore, fail and are dismissed.
We however make no order as to costs.
G.N. Appeals dis missed.

summary:
The respondents are dealers in hides and skins.
They deal among other things in splits and coloured leather.
The splits are the cut pieces, small and irregular, obtained in the process of cutting raw or tanned hides and skins either with a view to reduce their thickness or to give them a regular shape.
Coloured leather is obtained when the tanned hides and skins are dyed with various colours.
The claim of the respondents is that these two items fail in the list of "goods of special importance in inter State trade and com merce" set out in section 14 of the and, therefore, entitled to the concessions available under section 15 of the Act, namely the benefits of single point taxation and of a smaller rate of tax.
Such claims were allowed by the assessing authority in respect of coloured leather and in respect of splits he disallowed the claims.
The Appellate Assistant Commissioner upheld the order of the assessing authority.
The Board of Revenue negativated the contention that leather splits continued to be dressed skins under declared goods of inter State importance and held that these splits are to be treated as 'scraps ' or to be taxed at the multiple rates.
As regards coloured leather the Board held that these are commercially different products and that the exemption granted was not correct.
The tribunal, in certain cases, had held that the assessee was entitled to the con cessions claimed in respect of both items.
The respondents moved the High Court by way of Writ Peti tions 446 and tax revision cases and the High Court upheld the claim of the respondents, holding that 'splits ' and 'coloured leather ' continue to be hides and skins eligible for special treatment under the .
The present appeals by special leave are against those judgments of the High Court.
The contentions of the appellant State were that the leather splits or cuttings are "scrap" and do not qualify any longer to be described merely as hides and skins and that coloured leather is a totally new and sophisticated product known as leather and can no longer be described merely as hides and skins and as such cannot qualify for exemption.
On behalf of the respondents, a reference was made to certain circulars of the authorities which contain a contem poraneous exposition of the meaning of the entry in question and contended that, to say that one item being called scraps and the other as leather would not be sufficient to take them out of the description "hides and skins, in a raw or dressed state" and cuttings of hides and skins would not cease to be hides and skins merely because they are small pieces and can be loosely described as "scraps".
As for coloured leather, it was contended that the exact scope of the expression used in entry (iii) of section 14(1) which re ferred to 'hides and skins whether in a raw or dressed state ' would have to be looked into.
Dismissing the appeals, HELD: 1.1.
The High Court was right in holding that 'splits ' and 'coloured leather ' continue to be hides and skins eligible for special treatment under the .
[456E] 1.2 A contemporaneous exposition by the administrative authorities is a very useful and relevant guide to the interpretation of the expressions used in a statute.
Consid ering that the clarification was sought for from the Minis try of Commerce at the earliest point of time when a doubt arose as to the scope of the expression used by the statute and given after considering the technicalities of the proc esses employed in the manufacture of finished leather by the department fully conversant with this branch of trade and in the context of the provisions of this very statute, the terms of the statute can well be construed by reference to such exposition, in the absence of anything in the statute to indicate the contrary.
Indeed, such interpretation should be shown to 447 be clearly wrong before it is overturned.
The view of the Ministry was that the expression 'hides and skins in the raw or dressed State ' refers at one end to the raw material obtained from the slaughtered or dead animals and at the other end to the tanned and finished material; the expres sion, therefore, seems to include the other intermediate stages as well. 'Dressing ' according to the authoritative interpretations, would mean the conversion of tanned hides and skins by further suitable processing into leathers of different types which are ready for use.
[452F H; 452B D] Desh Bandhu Gupta and Ors.
vs Delhi Stock Exchange, ; ; Verghese vs I.T.O., , relied on.
Mahi Traders vs State of Tamil Nadu, [1980] 45 STC 327, approved.
Definitions in this regard show that hides and skins acquire the name of 'leather ' even if the hair or wool has not been removed therefrom, as soon as they receive some treatment which prevents them from putrefaction after treat ment with water. 'Dressing ' is a stage much later than tanning.
Indeed, from the definitions it is clear that it is practically the same as giving finishing touches to the leather and making it suitable for the manufacture of par ticular types of goods.
The findings of the Tribunal in this regard in an earlier case, which had not been appealed against by the Department, that under the , the appellant is in a much better position, because all the hides and skins are brought together in one entry, and whether raw or dressed, the product falls under the same entry, seems to be the correct view of the scope of the entry in question.
[454B D; 455E] Glossary of terms relating to hides, skins and leather published by ISI in 1960: Dictionary of Leather Terminology published by the Tanners ' Council of America.
Encyclopedia Britannica Vol. 7 and, 'Wealth of India '.
, a publica tion of the Council of Scientific and Industrial Research, 1966, relied on.
Hides and skins are termed 'leather ' even as soon as the process of tanning is over and the danger of their putrefaction is put an end to.
The entry in the , however, includes within its scope hides and skins until they are 'dressed '.
This represents the stage when they undergo the process of finishing and assume a form in which they can be readily utilised for manufacture of various commercial articles.
In this view, it is hardly material that coloured leather may be a form of leather or may even be said to represent a different commer 448 cial commodity.
The statutory entry is comprehensive enough to include the products emerging from hides and skins until the process of dressing or finishing is done.
[456C E]