JUDGMENT K.J. Rohee, J.
1. Heard the learned counsel for the petitioner and the learned Assistant Government Pleader for the respondents.
2. By this writ petition, the petitioner has challenged the orders of the First Bench of the Maharashtra Sales Tax Tribunal dated December 11, 1987 and the Second Bench of the Maharashtra Sales Tax Tribunal dated December 30, 1989 and has prayed for a declaration regarding exemption from payment of sales tax.
3. The petitioner is dealing in cooking gas, hot plates and its spare parts. The petitioner is required to purchase hot plates from outside Maharashtra State. The corresponding sales in the State of Maharashtra is taxed at 8 per cent by the Sales Tax Officer. At the time of assessment for the period :
(a) From January 1, 1981 to December 31, 1981
(b) From January 1, 1982 to December 31, 1982
(c) From January 1, 1983 to October 25, 1983 The Sales Tax Officer held that hot plates are liable to be taxed at 8 per cent. Subsequently, the petitioner found that the hot plates are not liable to be taxed. According to the petitioner, the sales of hot plates are exempted from sales tax under entry 164(v) of the Notification issued under Section 41 of the Bombay Sales Tax Act, 1959. According to the petitioner, there was a mistake apparent on the face of record in holding that the hot plates are not exempted and that they are subjected to levy of sales tax at 8 per cent. Hence, the petitioner moved rectification application under Section 62 of the Bombay Sales Tax Act, 1959 on September 11, 1984 (annexure A). The Sales Tax Officer rejected the application by his order dated September 14, 1984 (annexure B). The petitioner preferred appeal before the Assistant Commissioner of Sales Tax under Section 55 of the said Act. However, the said appeal was rejected by order dated September 22, 1986 (annexure C). The petitioner preferred second appeal before the Maharashtra Sales Tax Tribunal, Bombay, reiterating the contentions raised before the authorities below. However, the First Bench of the Maharashtra Sales Tax Tribunal dismissed the appeals by order dated December, 11, 1987 (annexure D). In the meanwhile, the contentions of the petitioner about exemption from sales tax were accepted by the Third Bench of the Maharashtra Sales Tax Tribunal in respect of the subsequent period, i.e., from December 1, 1983 to June 30, 1984 by order dated June 21, 1988. This fact was brought by the petitioner to the notice of the Maharashtra Sales Tax Tribunal by rectification application. However, the Second Bench of the Maharashtra Sales Tax Tribunal dismissed the application by order dated December 30, 1989 (annexure E).
4. Shri N.R. Saboo, the learned counsel for the petitioner, vehemently urged that the hot plates are not covered by entry No. 45 of Schedule C(2) of entry No. 144 of the notification issued under "Section 41 of the Bombay Sales Tax Act, 1959, but they are covered by entry No. 164(v) inasmuch as hot plates are nothing but gas heating system. Shri N.R. Saboo, the learned counsel for the petitioner, further pointed out that the contention of the petitioner in respect of exemption of hot plates from payment of sales tax was accepted by the Third Bench of the Maharashtra Sales Tax Tribunal by its order dated June 21, 1988, in second appeal preferred by the petitioner in respect of the subsequent period, i.e., from December 1, 1983 to June 30, 1984. The petitioner has filed copy of the order dated June 21, 1988 delivered by the Third Bench of the Maharashtra Sales Tax Tribunal in second appeal preferred by the petitioner. Shri N.R. Saboo, the learned counsel for the petitioner, further submitted that the sales tax department did not challenge the decision of the Third Bench of the Maharashtra Sales Tax Tribunal dated June 21, 1988. Thus the decision was left unchallenged and as such, it operates as res judicata.
5. In support of his submission, Shri N.R. Saboo, the learned counsel for the petitioner, relied on :
(1) Union of India v. Kaumudini Narayan Dalai .
(2) Berger Paints India Ltd. v. Commissioner of Income-tax .
6. We have gone through the above rulings. In those cases, the Supreme Court has ruled that when the adverse decision rendered by the High Court in tax matter was left unchallenged, the decision operates as res judicata. In our opinion, the said ratio cannot be extended to the decision rendered by any Tribunal like Sales Tax Tribunal. As such those rulings are not applicable to the present case.
7. However, the fact remains that for a subsequent period, the Third Bench of the Maharashtra Sales Tax Tribunal held that hot plates were exempted from levy of sales tax and the said decision was not challenged by the respondents. In view of this, the decision of the First Bench dated December 11, 1987 and Second Bench dated December 30, 1989 in respect of the previous period, i.e., from January 1, 1981 to October 25, 1983 cannot be sustained and they are liable to be quashed.
8. Shri K.S. Dhote, the learned Assistant Government Pleader for the respondents could not justify the impugned orders.
9. The orders of the First Bench of the Maharashtra Sales Tax Tribunal dated December 11, 1987 and the Second Bench of the Maharashtra Sales Tax Tribunal dated December 30, 1989 are hereby quashed and set aside. It is hereby declared that the hot plates are covered by entry No. 164(v) of the Notification issued under Section 41 of the Bombay Sales Tax Act, 1959 and are exempted from payment of sales tax.
10. The rule is made absolute in the above terms with no order as to costs.