JUDGMENT : MULYE, J. This reference made under section 44 of the M. P. General Sales Tax Act, 1958, read with section 9 (2) of the Central Sales Tax Act, 1956, at the instance of the Commissioner of Sales Tax, has been made to this Court for its opinion on the following question of law : " Whether, in the facts and in the circumstances of the case, the Tribunal was justified in holding that reassessment under the Central Sales Tax Act, 1956, read with section 19 (1) of the M. P. General Sales Tax Act, 1958, was not lawful in view of the provisions of section 38 (6) of the M. P. General Sales Tax Act, even though the issue on which reassessment was made, was not present before the Tribunal in the second appeal ?" 2. The facts giving rise to this reference as per the statement of the case furnished by the Tribunal may be stated thus. The non-applicant deals in cotton bales and was assessed to tax under the Central Act for the Diwali year 1967-68. In the original assessment packing material consisting of hessian and iron hoops were assessed to tax on the theory of implied sales. The turnover of packing material was determined at Rs. 18,636. In first appeal against the assessment it was contended that there was no sale of packing materials. This contention was rejected. 3. In second appeal before the Tribunal, the appellant merely disputed the rate of tax and his contention was that packing materials should be charged at the rate provided for cotton. Following the decision of this Court reported in [1972] 29 STC 515 (Patel Volkart Private Ltd. v. Commissioner of Sales Tax) the Tribunal held that packing material is to be charged at the rate applicable to such material and not at the rate applicable to baled cotton. The appellants contention was therefore rejected. 4. Thereafter the case was reopened under section 19 (1) of the M. P. General Sales Tax Act, 1958. The assessing authority noticed that the turnover of iron hoops worth Rs. 17,637 for which C forms had not been produced, was wrongly assessed at the rate of 3 per cent when it should have been assessed at 10 per cent. 4. Thereafter the case was reopened under section 19 (1) of the M. P. General Sales Tax Act, 1958. The assessing authority noticed that the turnover of iron hoops worth Rs. 17,637 for which C forms had not been produced, was wrongly assessed at the rate of 3 per cent when it should have been assessed at 10 per cent. The assessee was, therefore, noticed and the Additional Assistant Commissioner of Sales Tax observed that no objection was raised by the assessee for this assessment. Additional tax was now assessed on iron hoops at the rate of 7 per cent, being the difference between the rate at which they were liable to be assessed and at which they were assessed originally. The appeal against this order was preferred before the Additional Deputy Commissioner before whom it was contended that the original assessment of the dealer had been merged in the order passed in first and second appeals and, therefore, it could not be reopened under section 19 (1) of the State Act. The appellate authority observed that this Court had held in the case of Commissioner of Sales Tax M. P. v. Hirji Nainsee and Co. [1972] 29 STC 365 that iron hoops were not declared goods. The assessee had not raised the question of rate of tax in appeal and thus there was no decision on this point. Hence reassessment on iron hoops in accordance with the decision of this Court under section 19 (1) of the State Act was in order. The assessee preferred second appeal against this order before the Tribunal under section 38 (2) of the State Act read with section 9 (2) of the Central Act. 5. The assessees contention was that the question of taxability of packing material had already been decided finally by the Tribunal in second appeal and as laid down in sub-section (6) of section 38; the order passed in that appeal was final and the case could therefore be reopened by the assessing authority under section 19 (1) of this Act. The Tribunal accepted this contention as it came to the conclusion that the question of taxability of iron hoops had been decided by the Tribunal in second appeal and as the order of the Tribunal was final, the case could not thereafter be reopened by the assessing authority under section 19 (1) of the said Act. The Tribunal accepted this contention as it came to the conclusion that the question of taxability of iron hoops had been decided by the Tribunal in second appeal and as the order of the Tribunal was final, the case could not thereafter be reopened by the assessing authority under section 19 (1) of the said Act. It is in these circumstances that this reference has been made. 6. The learned counsel for the revenue submitted that section 19 of the State Act was a taxing provision and the manner in which the taxing provisions are to be implemented the procedure regarding machinery thereof has been prescribed under section 38 of the said Act. He therefore relying upon the decisions reported in [1978] 42 STC 95 (Commissioner of Sales Tax v. Jeewa Khan) and [1978] 41 STC 484 (Commissioner of Sales Tax, M. P. v. Bombay Textile Stores) submitted that the Tribunal was not right and justified in law in holding that in the facts and circumstances of the present case the assessment could not be reopened. According to the learned counsel, there was no question merger and consequently the department had every right to reopen the assessment when it noticed that the petitioner had not furnished the C form declarations, due to the absence of which the assessing authority had the jurisdiction to proceed under section 19 of the State Act. 7. On the other hand the learned counsel for the assessee submitted that the decision reported in [1972] 29 STC 365 (Commissioner of Sales Tax v. Hirji Nainsee and Co.) has been overruled by a Full Bench of this Court which is reported in [1983] 53 STC 120 (FB) (Govindji Jamunadas v. Commissioner of Sales Tax, M. P.), wherein it has been held that iron hoops, which are steel strips of different sizes rivetted and painted and used for tying bales of cloth are declared goods falling within section 14 (iv) (d) (iv) of the Central Sales Tax Act, 1956, and are taxable at 3 per cent under entry 5, Part I, Schedule II, to the M. P. General Sales Tax Act, 1958. He, therefore, submitted that, in view of this decision, the question of reassessing the assessee at the rate of 7 per cent more as undeclared goods now does not arise and, therefore, the provisions of section 19 of the State Act are not attracted. 8. He, therefore, submitted that, in view of this decision, the question of reassessing the assessee at the rate of 7 per cent more as undeclared goods now does not arise and, therefore, the provisions of section 19 of the State Act are not attracted. 8. So far as the merits of the case are concerned the assessees contention no doubt has great force and in view of the Full Bench decision he is liable to be taxed for the iron hoops only at the rate of 3 per cent as declared goods and not at the rate of 10 per cent as undeclared goods as provided under section 8 and section 9 of the Central Sales Tax Act. But the question referred to this Court, as stated above, does not restrict to the facts of this case as such but is of a general nature. 9. It cannot be disputed that the issue on which reassessment was made was not present before the Tribunal in the second appeal. Therefore, normally though under section 38 (6) of the State Act the assessment had become final, but in view of the provisions of the Central Sales Tax Act read with section 19 (1) of the State Act, in our opinion, if the conditions mentioned in section 19 (1) of the State Act exist, the assessing authority gets the jurisdiction to make reassessment. 10. The question referred to this Court is, therefore, answered in favour of the department and against the assessee. Our answer therefore is : That, in the facts and circumstances of the case, the Tribunal was not justified in holding that reassessment under the Central Sales Tax Act, 1956, read with section 19 (1) of the M. P. General Sales Tax Act was not lawful in view of the provisions of section 38 (6) of the M. P. General Sales Tax Act even though be issue on which reassessment was made was not present before the Tribunal in the second appeal. The reference is disposed of accordingly with no order as to costs. .