JUDGMENT
Prakash Krishna, J.
1. The present revision is directed against the order dated December 19,1992 passed by the Tribunal in Second Appeal No. 69 of 1984 for the assessment year 1975-76. The following two questions of law have been raised in the memo of revision:
(1) Whether on the facts and in the circumstances of the case the Sales Tax Tribunal was legally justified to hold that (1) coal ash is taxable at the rate of four per cent and is covered by the entry of coal including all its forms but excluding charcoal of Notification No. 5782, dated September 7, 1981 despite the fact that coal ash is an unclassified commodity and is taxed accordingly?
(2) Cardigan and pullovers are taxable as woollen hosiery at the rate of five per cent despite the fact that aforesaid goods fall under the category of woollen goods which is taxable at the rate of 8 per cent?
2. Regarding question No. 1 is concerned, I have considered this matter in great detail in Sales Tax Revision No. 1537 of 1992 Commissioner of Sales Tax v. Modi Spinning & Weaving Mills decided on May 21, 2004 Reported at [2008] 11 VST 259 (All). It has been held that coal ash is taxable as an unclassified item. To that extent the finding of the Tribunal is legally not correct and is set aside. In addition to the judgment referred to by me in the aforesaid case, learned Counsel for the dealer-opposite party has placed reliance upon a division Bench judgment of this Court in the case of District Co-operative Development Federation Limited v. Commissioner, Sales Tax [1970] 26 STC 464. The division Bench in this case also considered the earlier judgment of learned single judge given in the case of Mahabir Singh Ram Babu v. Assistant Sales Tax Officer [1962] 13 STC 248. In that case the court was dealing with the item “coal dust”. It has been held that the coal dust is also mineral known as coal, but in a different shape. Various Articles have been reduced by friction or use to a very small size so as to render the coal into dust. The coal is not treated or processed in order to produce coal dust. Factually it was found on the basis of affidavit that coal dust is sold for burning bricks just as coal is used for such purpose. It is clear that coal dust has the same combustible property as coal has. In this view of the matter it was held that coal dust is included within the word coal as used in entry 33 of the notification dated March 31,1956. But here the commodity involved is the coal ash. There is nothing on record to show that this coal ash can be used and has the same combustible property as the coal has. The coal ash is the residue left after the coal is burnt. The Tribunal, while setting aside the finding of the authorities below on this issue has not recorded a finding that it can be used like coal as fuel. Therefore, I am of the view that the ratio of the aforesaid division Bench judgment is not applicable to the facts of the present case. The present case is nearer to the facts of Mahabir Singh Ram Babu [1962] 13 STC 248 (All). The said question is decided accordingly and is held that coal ash is taxable not as coal but as unclassified item.
3. The question No. 2 is covered by the Full Bench judgment of this court See British India Corporation Limited v. Commissioner, Sales Tax given in the case of dealer itself. The said Full Bench has been followed recently in [2003] 38 STR 608, in the case of dealer itself. The finding of the Tribunal on this issue is confirmed and it is held that “cardigan” and “pullovers” are taxable as woollen hosiery and not as “woollen goods”. The finding of the Tribunal on this issue is confirmed.
In the result the revision is allowed in part, as indicated above.