COMMISSIONER OF SALES TAX vs PAKISTAN WELDING ELECTRODE

1. SALEEM AKHTAR, J.-----The respondent manufactures welding electrodes. For the assessment years 1970-71, 1971-72, 1972-73, 1973-74, 1974-75 and 1975-76 on the basis of SRO 125(1)/70 dated 29- 6-1970 respondent claimed exemption from sales tax on the products manufactured by it. This claim was not accepted by the Sales Tax Officer. The respondent tiled an appeal before the Commissioner of Sales Tax (Appeal) which was allowed. The department filed IInd Appeal before the Tribunal which was dismissed and the exemption granted by the, Appellant Commissioner was maintained. The department then tiled application under section 17(1) of the Sales Tax Act and the following question has been referred:-- "Whether on the facts and circumstances of the case the Appellate Tribunal was justified in holding the welding electrodes to be exempt from sales tax by concluding that all the articles incorporated in the table of the First Schedule to the Tariff Act appended with SRO 125(1)/70 dated 29-6-1970 automatically fall within the definition of the word "machinery" as defined in the said SRO in view of the objective language of the opening part of the aforesaid SRO since number of headings mentioned in the aforesaid table refer to non-machinery item"?

2. The admitted position is that the exemption granted by the SRO dated 29-6-1970 was amended by SRO 3(1)/75 dated 1-7-1975 whereby the welding electrodes were excluded and thus the exemption granted it was withdrawn. Both the learned counsel agree that for the assessment year, 1974-75 and 1975-76 respondent is not entitled to any exemption.

3. Mr. Shaikh Haider the learned counsel for the Department has stated that for the assessment years 1970-71 and 1971-72 the respondents are entitled to exemption but so far as assessment years 1972- 73 and 1973-74 are concerned, it is not entitled to any exemption. The question referred to us requires interpretation of SRO 125(1)/70 dated 29-6-1970 which is reproduced as follows:-- "In exercise of the powers conferred by section 7 of Sales Tax Act, 1951 (III of 1951) and in super session of this Ministry's Notification No. SRO 124(1)/68 dated 28-6-1960, the Central Government is pleased to direct that articles falling under the heading numbers of First Schedule to the Tariff Act, 1934 (XXX11 of 1934) specified in table below which are machinery or articles for use with machinery or as component parts or spare parts of machinery as hereinafter defined shall be exempt from the tax payable under the Sales Tax Act 1951 (111 of 1951); Provided that-

(a) The articles are identifiable as intended for use only with machinery and have been given for that purpose some special shape, size, or quality; and

(b) It is established in the case of imported articles to the satisfaction of the Customs Collector, and in the case of articles manufactured in Pakistan, to that of the Sales Tax Officer that they are used as aforesaid."

4. The question for consideration is whether welding electrode falls within the category mentioned in the notification and qualifies for exemption. Any article specified in the table including welding electrode would qualify for exemption if it is a machinery or article for use with machinery, or is a component or spare part of machinery. This is not the case of any party that welding electrode is machinery, or component or a spare part of machinery. It can qualify for exemption if it can be covered by the words "articles for use with machinery". Therefore, first the purpose for which welding electrode is used has to be ascertained. This is purely a question of fact and the Tribunal has given a finding that this is an article for use with machinery. This finding has not been challenged in these proceedings. Mr. Shaikh Haider the learned counsel for the Department has contended that it is not merely a question of fact but it requires interpretation of the Notification itself. It is true but the Notification can be properly interpreted only after determining certain questions of fact one of them being, whether welding electrode is used as article with machinery.

5. This fact has been determined. In view of this finding we are of the view that the respondent is entitled to the exemption claimed by. It and granted by the Tribunal. We therefore, answer the question accordingly.