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PETITIONER: COMMISSIONER OF SALES-TAX, U.P., LUCKNOW

       Vs.

RESPONDENT: SUPER COTTON BOWL REFILLING WORKS & ANR.

DATE OF JUDGMENT02/02/1989

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RANGNATHAN, S.

CITATION:  1989 AIR  922            1989 SCR  (1) 421  1989 SCC  (1) 643        JT 1989 (1)   458  1989 SCALE  (1)257

ACT:     U.P. Sales Tax Act, 1948: Sections 2(e-i), 2(h),  10(C), 11  and  35(5)--Whether  revision lies to  High  Court  from decision  of Commissioner which has been subject  matter  of appeal before Tribunal--Effect of amendments of U.P. Act  of 1979 and U.P. Act 22 of 1984.     Revision  to High Court under section 11 lies on  ground that case involved a question of law.     Administrative Law: Order of Commissioner under  section 35 U.P. Sales Tax Act 1948--Whether quasi-judicial, judicial or administrative in nature.     Statutory   Interpretation: Intention of  legislature--A slippery phrase--Intention to be ascertained from the  words used and spirit and reason of the law. Words and Phrases: "Final"--Meaning of.

HEADNOTE:     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

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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 v. 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 v. 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 v. Vatch Committee of City of Liverpool, [1908]  AC 327, 331-32; Maung Ba Thaw v. Ma Pin, [1933-34] 61 LR Indian Appeals  158; South Asia Industries Pvt. Ltd. v. S.B.  Sarup Singh, [1965] 2 SCR 756 and M/s. Jetha Bai and Sons Jew  and others  v. M/s. Sunderdas Ratheni and others, [1988]  1  SCC 722, referred to.     5.  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

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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.     8.  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 v. A. Salomon and Company Ltd.,  [1897] AC,22,38;  Lord Howard De Walden v. Inland  Revenue  Commis- sioners,[1948] 2 All England Reports page 825. referred to. Cross-Statutory Interpretation (Second Edn.) p. 21. referred to.

JUDGMENT:     CIVIL   APPELLATE   JURISDICTION:  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.

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   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.

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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 v. 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

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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.

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         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 Limitation Act, 1963, 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

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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

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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 v. 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

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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 v. Watch Committee of City of  Liverpool,  [1908] AC 327, 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 v. 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

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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. v. S.B. Sarup Singh, [1965] 2 SCR 756, 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 v. M/s. Sunderdas Rathenai and others, [1988] 1 SCC 72 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-

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lature  is a slippery phrase as observed in Aron Salomon  v. A.  Salomon  and Company Ltd., [1897] AC, 22,  38  see  also observations  in  Lord Howard De Walden  v.  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. - ?439