D.P Madon, J.:— This is a reference under section 61(1) of the Bombay Sales Tax Act, 1959, made at the instance of the Commissioner of Sales Tax, in which, the short question which arises for our determination is whether oilengines used for working pumping sets for drawing out water are agricultural machinery.

2. The respondents are an agricultural co-operative society at Nandurbar In the Dhulia District. In their assessment for the period 1st April, 1963, to 31st March, 1964, the respondents contended that the sales of oil-engines effected by them were sales of agricultural machinery within the meaning of entry No. 12 of Schedule C to the Bombay Sales Tax Act, 1959, and that the respondents were, therefore, liable to pay sales tax at the rate of 3 per cent mentioned in the said entry. The Sales Tax Officer, however, held that the oil-engines sold by the respondents did not fall under any of the entries contained in the said Schedule C and the respondents were, therefore, liable to pay on the sales of these engines sales tax at the rate of 3 per cent as also general sales tax at the rate of 2 per cent under the residuary entry No. 22 in Schedule E to the said Act. The respondents thereupon preferred an appeal to the Assistant Commissioner of Sales Tax and having proved unsuccessful in this appeal approached the Tribunal in second appeal. The Tribunal accepted the contention of the respondents and allowed the appeal. It is from this judgment and order of the Tribunal that the present reference has been made and the question submitted to us for our determination is as follows:

“Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that during the period 1st April, 1963, to 31st March, 1964, the sales of oil-engines effected by the respondents to the agriculturists were sales of ‘agricultural machinery’ within the meaning of entry No. 12 of Schedule C to the Bombay Sales Tax Act, 1959?”

3. From the date when the Bombay Sales Tax Act, 1959, came into force, namely, 1st January, 1960, till 10th May, 1973, entry No. 12 of Schedule C to the said Act provided as follows:

“Entry No. Description of goods Rate of sales tax Rate of purchase tax 12. Agricultural machinery and imple-ments (other than implements specified in entry 1 in Schedule A) and parts of such machinery and implements. Three naye paise in the rupee. Three naye paise in the rupee.”

4. The said entry was amended by the Bombay Sales Tax (Amendment) Ordinance, 1973, which was promulgated on 11th May, 1973, and thereafter replaced with effect from the same date by the Bombay Sales Tax (Amendment) Act, 1973 (Mah. Act No. 32 of 1973). The amended entry No. 12 is as follows, the portions inserted by the said amending Act being underlined* by us:

“Serial No. Description of goods Rate of sales tax Rate of purchase tax 1 2 3 4 12. Agricultural machinery and imple-ments (other than tractors, oil-engines and electric motors and implements specified in entry 1 in Schedule A) and components, parts and accessories thereof. Three paise in the rupee. Three paise in the rupee.”

5. While we are on the entries in the said Schedule C, it will be convenient, before we turn to the submissions made at the Bar, to refer also to entry No. 15 in the said Schedule C which has been relied upon on behalf of the applicant. The said entry No. 15, as originally enacted, provided as follows:

“Entry No. Description of goods Rate of sales tax in paise in the rupee Rate of purchase tax in paise in the rupee 15 Machinery used in the manufacture of goods, and spare parts and acces-sories thereof, but not machinery and spare parts and accessories thereof specified in any other entry in this or any other schedule. Three naye paise in the rupee. Three naye paise in the rupee.”

6. With effect from 15th March, 1960, entry No. 15 was renumbered as subentry No. (1) and the following sub-entry was introduced as sub-entry No. (2) by Government Notification in the Finance Department No. STA-1059 dated 14th March, 1960:

“Entry No. Description of goods Rate of sales tax Rate of purchase tax 15(2) Electric motors and oil-engines other than those adapted for use of as component parts of motor vehicles specified in entry 58 in this schedule. Three naye paise in the rupee. Three naye paise in the rupee.”

7. This entry was again amended by maharashtra act no. 21 of 1962 with effect from 15th July, 1962, and the amended entry read as follows:

“Entry No. Description of goods Rate of sales tax Rate of purchase tax 15. Machinery and the spare parts thereof (other than machinery specified in any other entry in this or any other schedule and the spare parts thereof). Three naye paise in the rupee. Three naye paise in the rupee.”

8. Thereafter, by the Maharashtra Amendment Act 16 of 1963, with effect from 1st April, 1963, the said entry No. 15 was deleted.

9. Mr. Shah on behalf of the applicant has urged before us that before oil-engines can be held to be agricultural machinery, they must be oilengines exclusively designed for agricultural purposes and that the oil-engines sold by the respondents were not oil-engines exclusively designed for these purposes, though they could be so used. In the alternative, Mr. Shah submitted that oil-engines were not articles which were commonly or ordinarily used only for drawing out water from wells and that there was no evidence before the Tribunal in arriving at its decision. In support of his submissions Mr. Shah relied upon the decision of a Division Bench of this High Court in Pashabhai Patel & Co. (P.) Ltd. v. Collector of Sales Tax, Maharashtra State [1964] 15 S.T.C 32., in which the question before the court was whether tractors were agricultural machinery and the court came to the conclusion that they were not. Relying upon the said decision, Mr. Shah submitted that if tractors were not agricultural machinery, oil-engines should equally be held not to be agricultural machinery. We are, however, unable to accept Mr. Shah's submission. That case turned upon its own facts. It was admitted in that case that only about half the number of tractors sold by the dealer in that case were sold to agriculturists. Thus, at least half the number of the tractors sold by the dealer in that case were sold to non-agriculturists and, therefore, sold for non-agricultural purposes. Thus, it would appear that the type of tractors sold by the dealer in that case were such that they could be and were commonly used both for agricultural and non-agricultural purposes. In that case it was further observed (at pages 34 and 35):

“It is true that the entry does not say ‘machinery used for the purpose of agriculture’ and, therefore, actual use of the machinery for agricultural purpose need not be established, but then the person claiming that a particular machinery is an agricultural machinery must establish as a fact that the machinery conforms to the description of agricultural machinery. In other words, the dealer must establish that in the commercial world that particular type of machinery is understood as agricultural machinery. It has to be established that the particular type of machinery is generally and commonly used for the purpose of agriculture. Now, the facts found are not that tractors are generally or principally used for the purpose of agriculture, nor is there any finding that a tractor is understood in the commercial world as an agricultural machinery. On the other hand, the order of the Tribunal shows that a tractor is used where a large percentage of the available power is required as force rather than speed. The use to which the tractor is put is in pushing down trees, pushing large piles of dirt or rocks, or loading scrapers and operating up steep grades or against the high rolling resistance of soft roads. Tractor also is used for clearing and grubbing involving a complete disposal of all timber, roots, and brush from the vicinity of operations. It is also used for clearing small trees, for pulling or pushing loads, a power unit; for winches and hoists and a moving mount for bulldozer blades, side booms and front-end bucket loaders………It would be seen that the use of tractors is for many other purposes than agriculture. In short, a tractor is used wherever a large percentage of available power is required to be used and, in that sense, a tractor may also be used for the purpose of agriculture when for the particular purpose large percentage of power is required to be used. In other words, a tractor may be brought in use for large scale agriculture, but the evidence discussed by the Tribunal and to which we have made a reference in brief, shows that the principle and primary use of a tractor is not for agriculture.”

10. We fail to see how the judgment in that case can in any way help the applicant. As pointed out above, the decision in that case turned upon its own facts and the evidence led therein clearly established that tractors could be used and were being commonly used for various purposes other than agricultural purposes. The position here is, however, completely different. Considerable documentary evidence was produced before the Tribunal to show that all the oil-engines sold by the respondents during the assessment period were oil-engines which were commonly used by agriculturists for agricultural purposes and were recognised not only by co-operative land mortgage banks but even by the Government of Maharashtra to be oil-engines of the type used by agriculturists for drawing out water. It is on the evidence led before it that the Tribunal has given its decision that these oil-engines fall under entry No. 12 in the said Schedule C. Since the Tribunal is the fact-finding body, it is not necessary for us to discuss this evidence in detail, but it may be useful to briefly adumbrate it.

11. Amongst the documents produced before the Tribunal were three resolutions of the Government of Maharashtra in the Agriculture and Forest Department dated 7th October, 1960, 25th October, 1962, and 18th February, 1964, by which the Government directed that certain diesel engines, including “Lister” diesel engines, of the type and specifications mentioned in the respective notifications should be included in the approved list of engines for purchases against tagai loans and should be made available to needy cultivators in accordance with the procedure prescribed by the Government. The vouchers and the delivery notes produced by the respondents and their account books proved before the Tribunal that the oil-engines sold by the respondents were sold to agriculturists, very often against tagai loans given in pursuance of the said resolutions or against loans made by the co-operative land mortgage bank. The respondents also produced a number of letters written by the said bank to them.

12. Mr. Shah, the learned counsel for the applicant, however, sought to argue before us that there was no evidence before the Tribunal that these oil-engines were used for agricultural purposes. No such question was sought to be raised by the applicant in his application for reference nor is any such question referred to us for our determination, and it is not open to Mr. Shah to take up this point. None the less, we may mention that we have found that there was overwhelming and convincing evidence before the Tribunal to prove the fact that the oil-engines sold by the respondents during the assessment period were oil-engines designed for agricultural purposes and sold to agriculturists for such purposes and were, therefore, agricultural machinery. Mr. Shah referred us to the order passed by the Assistant Commissioner of Sales Tax in the appeal filed by the respondents in which the Assistant Commissioner has observed:

“It is true that by the use of oil-engines water can be pumped out for watering the agricultural land but that does not mean that it is agricultural machinery. By the words ‘agricultural machinery’ it is implied that the machinery should have direct connection with some agricultural operation.”

13. Obviously, according to the Assistant Commissioner, watering the fields had no direct connection with agriculture. One wonders whether the Assistant Commissioner knew anything about agriculture and whether he paused to ponder, before he made this observation, where India's agricultural economy would be were there no water to water the fields.

14. Mr. Surte, on behalf of the respondents, relied upon a decision of the Full Bench of the Allahabad High Court in Engineering Traders v. State of Uttar Pradesh, in which it was held that in order that an appliance may be an agricultural implement, the real test is not that it should be exclusively used for agricultural purposes but that it should be commonly so used and it should be intimately and directly connected with agricultural operations. Applying that test the Full Bench held that water pumping sets were connected intimately with agriculture and were commonly used and understood as agricultural implements. In arriving at this decision the Full Bench referred to a number of books on the subject, including authoritative publications of the Government of India and of the Indian Council of Agricultural Research Institute of New Delhi.

15. Mr. Shah, the learned counsel for the applicant, was unable to refer us to a single authority in support of his submission that a machinery, before it can be said to be agricultural machinery, must be used exclusively for agricultural purposes. This extreme position was not accepted by the Division Bench of this High Court, upon whose decision Mr. Shah relied, nor by the Full Bench of the Allahabad High Court2.

16. Mr. Shah lastly relied upon the old entry No. 15 in Schedule C to the said Act in support of his submission that oil-engines were not agricultural machinery. It is true that during the period 15th March, 1960, and 14th July, 1962, electric motors and oil-engines were separately taxed under entry No. 15(2). As pointed out above, this amendment to the entry was made by a Government notification in the Finance Department. It is, however, pertinent to note that when the Maharashtra Amending Act 21 of 1962 came to be passed, the amendment made by the Government notification was deleted by the legislature and it, therefore, appears that the legislature did not accept that all oil-engines fell in a separate category or sales thereof should be subject to a higher tax. Further, the fact that oilengines were made the subject-matter of a separate sub-entry for a particular period does not mean that oil-engines are not agricultural machinery or parts of such machinery. There is nothing to prevent the legislature from taxing certain types of agricultural machinery under one head and other types of agricultural machinery under a different head and merely because a particular type of agricultural machinery is made the subject-matter of a separate entry, it does not follow that oil-engines designed and used for agricultural purposes cease to be or are not agricultural machinery.

17. In the result, we answer the question submitted to us in the affirmative.

18. The applicant will pay to the respondents the costs of this reference.

19. Reference answered in the affirmative.