ORDER
S.K. Jha, C.J.
1. In this reference under Section 44(1) of the Madhya Pradesh General Sales Tax Act, 1958 (hereinafter referred to as 'the Act'), the Board of Revenue has referred the following question of law for opinion of this Court :
'Whether in the facts and circumstances of the case, the Board of Revenue was justified in holding gas rubber tube as taxable at 8 per cent vide entry 32 of Part 111 of Schedule II instead of at 13.5 per cent under entry 25 of Part II of Schedule II of the M.P. General Sales Tax Act, 1958 ?'
2. The short facts relevant for our purpose may be stated thus : The assessee deals in gas stoves, their parts and gas cylinder at Govindpura, Bhopal. He was assessed to tax for the period April 1, 1980 to March 31, 1981, by the Regional Assistant Commissioner of Sales Tax, Bhopal, by his order dated September 25, 1982. The gross turnover was determined at Rs. 48,13,825 and tax was assessed at Rs. 60,130 for the period in question. The assessee also sold rubber tubes connecting gas cylinder with the gas stove. The assessing officer levied tax at 10 per cent on these tubes. A copy of the assessment order has been marked as annexure B to the assessment order.
3. Being aggrieved by the aforesaid assessment order, the dealer-assessee filed an appeal before the Appellate Deputy Commissioner of Sales Tax, Bhopal, who, by his order dated September 27, 1983, held that the assessing authority had levied tax on the sale of rubber tubes at 10 per cent only, whereas tax should have been levied on these tubes under entry 25 of Part II of Schedule II appended to the Act, at 13.5 per cent. A notice under Section 38(5) of the Act was desired to be issued which was conveyed to the counsel for the assessee. The notice was, however, waived by the counsel and the explanation furnished by him was taken into consideration and tax on the sale of these rubber tubes was levied at 13.5 per cent under entry 25 of Part II of Schedule II. A copy of the appellate order has been marked as annexure C to the statement of the case.
4. The dealer-assessee thereafter filed a second appeal before the Tribunal. The appeal was decided by the Tribunal on January 5, 1984. The Tribunal took the view that the sales of rubber tubes could be taxed under entry 32, Part III of Schedule II and not under entry 25, Part II of Schedule II, as done by the first appellate authority. The dealer-assessee also raised a contention before the Tribunal that the sales of such rubber tubes could be covered under entry 10 of Part IV of Schedule II and could be taxed at 5 per cent only. This contention was, however, not accepted by the Tribunal. A copy of the order of the Tribunal has been marked as annexure D to the statement of the case.
5. Before answering the question referred to us for our opinion, it would be worthwhile to take note of certain entries in Schedule II of the Act. Entry 25 of Part II speaks of 'sheets, cushions, pillows, mattresses and other articles made of rubber, foam rubber, plastic foam or other synthetic foam or rubberised coir' and the total rate of tax is enjoined at 13.5 per cent under this entry. Entry 32 of Part III deals in 'stoves and parts thereof and fixes tax liability at 8 per cent. Entry 10 of Part IV speaks of 'pipes made of polythene, P.V.C. rubber and canvas' and fastens a tax liability at the rate of 5 per cent. The question which arises for consideration is as to whether the rubber tubes of the nature with which the dealer-assessee is dealing, is covered by entry 25 of Part II or entry 32 of Part III or entry 10 of Part IV, all of Schedule II.
6. It is an admitted case that the dealer-assessee deals in gas stoves, their parts and gas cylinders and gas rubber tubes connecting the gas cylinder with the gas stove. In our opinion it needs no argument to persuade us to hold that such rubber tubes connecting the gas cylinders with the gas stove is a pipe made of P.V.C. rubber and it is clearly covered by entry 10 of Part IV of Schedule II. It can neither be said to be 'other article made of rubber' within the meaning of entry 25 of Part II, nor can it be said that such rubber tubes are covered by the term 'stoves and parts thereof', within the meaning of entry 32 of Part III. Both in common parlance as well as in the commercial world, such rubber tubes connecting the gas stove with the gas cylinder are pipes of P.V.C. rubber, clearly covered by entry 10 of Part IV of Schedule II. The meaning of the word 'pipe', as found in the Webster's New Twentieth Century Dictionary is : 'a cylindrical tube as of reed, straw, wood or metal.....; any of the wooden or metal tubes.....; a long tube of clay, concrete, metal, wood, etc., for conveying water, gas, oil or other fluids, etc.'. It will thus be seen that for the present purpose, the word 'pipe' as used in entry 10 of Part IV of Schedule II, means 'a long tube of P.V.C. rubber for conveying gas'. So also in the same dictionary, the word 'tube' has been said to mean 'a hollow cylinder or pipe of metal, glass, rubber, etc., usually long in proportion to its diameter used for conveying fluids, etc.'. There can, therefore, be no matter for doubt that the rubber tubes in which the dealer-assessee is dealing, is a pipe made of P.V.C. rubber within the meaning of entry 10 of Part IV of Schedule II. Trying to bring it within either the sweep of entry 32 of Part III or 25 of Part II of Schedule II, would be entering into mere verbose and pedantic, but academic discussions. It would be indulging in an exercise in futility. The question, as framed by the Tribunal (Board of Revenue), therefore, needs to be reframed. While remitting the case back to the Board of Revenue, modified statement of the case be submitted, if necessary, on the following question of law :
'Whether on the facts and in the circumstances of the case, the Board of Revenue was justified in holding that gas rubber tubes were taxable at 8 per cent vide entry 32 of Part III of Schedule II, instead of at 13.5 per cent under entry 25 of Part II of Schedule II or at 5 per cent under entry 10 of Part IV of Schedule II appended to the M.P. General Sales Tax Act, 1958 ?'
Costs to abide the final result.