JUDGMENT
N.P. Singh, J.
1. By an order dated 11th November, 1972, this Court directed the Commercial Taxes Tribunal, Bihar (hereinafter referred as “the said Tribunal”), to state the case and to refer the following question of law to this Court:
Whether lemon is a type of goods which is exempted from the levy of general or special sales tax by item 11 of Schedule III or any other item of Notification No. STGL-AR-107/59-9134-F.T. dated the 1st July, 1959?
2. Thereafter on 8th August, 1975, the Tribunal forwarded the statement of the case to this Court, from which it appears that the respondent carried on business under the name and style, M/s. Abdul Shakoor and Sons, at Kedarnath Market, Gaya, and he dealt with inter alia in fruits and vegetables. For the financial year 1961-62, the respondent returned a gross turnover of Rs. 68,292.29 and claimed that the turnover of Rs. 34,530.69 comprised within the gross turnover was exempted from the tax as it represented sales of green vegetables.
3. The Assistant Superintendent of Commercial Taxes, Gaya, by his order of assessment dated 18th November, 1964, disbelieved the books of account. He disallowed the claim for deduction on account of sales of green vegetables to the extent of Rs. 2,627 perhaps on the ground that lemon was not a vegetable. The respondent filed an appeal which was heard by the Appellate Assistant Commissioner, Commercial Taxes, who remanded the case to the assessing officer to consider specifically as to whether lemon was a green vegetable exempted from sales tax, both general and special. After remand the assessing officer affirmed his earlier order of assessment and reiterated that lemon was not a tax-free commodity. The dealer again went in appeal and the Appellate Assistant Commissioner held that lemon did not come under the purview of green vegetables and has been rightly treated as a fruit. Thereafter, the dealer went up in revision before the Deputy Commissioner, Commercial Taxes, who was of the view that lemon was a green vegetable and, as such, exempted from tax. On that finding, the Deputy Commissioner remanded the case to the assessing officer for fresh assessment. Being aggrieved by that order, the Commissioner of Commercial Taxes filed a revision application under Section 31 of the Bihar Sales Tax Act, 1959 (hereinafter referred as “the Act”), to the Tribunal. The Tribunal by order dated 3rd November, 1969, concluded that lemon was not a fruit and it should be considered as a green vegetable.
4. Thereafter the application filed on behalf of the Commissioner, Commercial Taxes, before the Tribunal for referring the question of law to the High Court having been rejected it was filed before this Court for a direction to the Tribunal to state the case and to refer it to the High Court on the aforesaid question of law. As already stated above, this Court on 11th November, 1972, passed an order directing the Tribunal to refer the question of law for consideration by this Court.
5. Mr. K.N. Jain appearing on behalf of the department at the outset has drawn our attention to a judgment of the Supreme Court in the case of Mangulu Sahu Ramahari Sahu v. Sales Tax Officer, Ganjam [1973] 32 S.T.C. 494 (S.C.), and submitted that the question which was to be decided by this Court in the present case has already been decided by the Supreme Court. It appears that lemon has been held to be a vegetable. Once it is held that lemon is a vegetable then there is no controversy that the respondent is entitled for exemption in view of the notification dated 1st July, 1959, details whereof have been mentioned in the statement of case forwarded to this Court by the Tribunal.
6. Accordingly, we answer the reference in the affirmative that lemon is a vegetable and is exempted from the levy of general or special sales tax by item No. 11 of Schedule III read with the notification dated 1st July, 1959. In the circumstances of the case, there will be no order as to costs.
S.P. Sinha, J.
7. I agree.