ANSHUMAN SINGH, J. ( 1 ) THE respondent-assessee manufactures vegetable turpentine oil and supplies the same in U. P. as well as outside the State. According to it its major buyer is M/s. Camphor and Allied Products limited, Cluter-buckganj, Bareilly, which has been buying 85 per cent of total vegetable turpentine oil produced by the assessee since the year 1964 and the same is being used as raw material for the manufacture of camphor and its bye-products. The vegetable turpentine oil was being treated as "oils of all kinds" hence the respondent-assessee had been charging U. P. sales tax at the rate of 3 per cent plus additional surcharge at the rate of 1 per cent. In the meantime notification No. S. T.-2-5784/x-10 (1)-80 dated September 7, 1981 was issued in which item No. 46 of the Schedule reads as under : 46. Paints and varnishes of all kinds and all materials used in painting or varnishing, including distempers, cement colours or paints, powder paints, stiff paste paints, enamels and liquid paints, whether ready for use or not, french polish, vegetable turpentines, paint removers and stainers of all kinds and all kinds of vehicle diluents and thinners (including natural and synthetic drying and semi-drying oils such as double-boiled linseed oil, blown linseed oil, stand oil, sulphurised linseed oil, perilla oil, whale oil and tung oil ). (underlined by me-emphasis) ( 2 ) FOR the aforesaid item the rate of tax at the point of sale by the manufacturer or importer is prescribed at 10 per cent. Item No. 31 of List of Notification No. S. T.-2-5785/x-10 (1)-80 dated september 7, 1981, reads: 31. Oils of all kinds, other than those covered by any other entry of this list or by any other notification issued under the Act. ( 3 ) FOR the aforesaid item the rate of tax at the point of sale by the manufacturer or importer is prescribed at 4 per cent. ( 4 ) IN view of the aforesaid two notifications the respondent-assessee moved an application under section 35 of the U. P. Sales Tax Act (hereinafter referred to as the Act) before the commissioner of Sales Tax, U. P. , for his opinion on the following two points: 1. ( 4 ) IN view of the aforesaid two notifications the respondent-assessee moved an application under section 35 of the U. P. Sales Tax Act (hereinafter referred to as the Act) before the commissioner of Sales Tax, U. P. , for his opinion on the following two points: 1. In respect of vegetable turpentine oil used in painting and varnishing the rate of U. P. sales tax chargeable will be 10 per cent as per entry No. 46 of the notification. 2. Vegetable turpentine oil used for manufacture of camphor and other products will be covered by entry No. 31 of the Schedule and the rate of U. P. sales tax chargeable will be 4 per cent. ( 5 ) THE Commissioner of Sales Tax, U. P. , by his order dated April 20, 1982, held that vegetable turpentine is taxable under entry No. 46 at the rate of 10 per cent when sold by the manufacturing unit or importer. The respondent-assessee feeling aggrieved against the said opinion of the Commissioner of Sales Tax, U. P. , preferred an appeal under Section 10 of the Act before the Sales Tax Tribunal, U. P. , Lucknow and the three members Bench of the Tribunal by a majority of two members allowed the appeal by an order dated September 30/october 23, 1982 and held that 86 per cent of vegetable turpentine oil, which was sold by the respondent-assessee to M/s. Camphor and Allied Products Limited, Bareilly, would be exigible to tax at the rate of 4 per cent. Being aggrieved against the aforesaid order of the Tribunal the Commissioner of Sales tax has come to this Court in the instant revision. ( 6 ) THE respondent-assessee has filed an application under Section 151, C. P. C. , in this case disputing the date of service of the impugned order dated September 30/ October 23, 1982, upon the Commissioner of Sales Tax, U. P. , Lucknow and praying for summoning the despatch register of the order of the Sales Tax Tribunal, U. P. , Lucknow, in order to verify the aforesaid fact. In paragraph No. 2 of the affidavit filed along with the revision it has been averred that the copy of the order of the Member, Tribunal, Sales Tax, Lucknow, dated October 23, 1982, was received by the Commissioner, Sales Tax, on March 26, 1985. In paragraph No. 2 of the affidavit filed along with the revision it has been averred that the copy of the order of the Member, Tribunal, Sales Tax, Lucknow, dated October 23, 1982, was received by the Commissioner, Sales Tax, on March 26, 1985. In the counter-affidavit filed on behalf of the respondent-assessee also supporting the aforesaid application under Section 151, C. P. C. , it has been averred that if the order has not been served earlier, then it would be deemed to have been served on the Commissioner of Sales Tax when on November 6, 1984 M/s. Camphor and allied Products Limited, Bareilly, moved an application under Section 35 (1) of the Act before him annexing therewith a copy of the order dated September 30/october 23, 1982. Apart from this a writ petition was also filed by M/s. Camphor and Allied Products Limited, Bareilly, in this court on January 30, 1985, annexing therewith a copy of the order dated September 30/october 23, 1982. In the counter-affidavit it is alleged that a copy of the writ petition is invariably sent by the office of the Chief Standing Counsel to the respondent concerned and in the writ petition the commissioner of Sales Tax, U. P. , Lucknow, was the respondent and he must have knowledge of the order of the Tribunal. In the rejoinder affidavit filed by Jagdamba Prasad Shukla, a senior clerk in the office of the Commissioner of Sales Tax, U. P. , Lucknow, it has been averred that the copy of the order of the Tribunal was served upon the Commissioner of Sales Tax on March 26, 1985. In support of the averment a photostat copy of the letter dated March 26, 1985, from the tribunal addressed to the Commissioner, Sales Tax, U. P. , Lucknow has been filed as annexure 1 to the rejoinder affidavit. It has also been averred in the rejoinder affidavit that mere knowledge of the order of the Tribunal does not constitute proper and valid service within the meaning of rule 68 (7) of the U. P. Sales Tax Rules. The despatch register was also summoned and it has been produced. In the despatch register at serial No. 732 a certified copy of the order of the tribunal is alleged to have been despatched on November 2, 1982. The despatch register was also summoned and it has been produced. In the despatch register at serial No. 732 a certified copy of the order of the tribunal is alleged to have been despatched on November 2, 1982. No positive evidence has been furnished on behalf of the respondent-assessee that the service of the impugned order was effected on the Commissioner of Sales Tax prior to March 26, 1985, as alleged by the applicant revisionist. However, Sri Raja Ram Agarwal, learned counsel appearing for the respondent-assessee, submitted that he wants the revision to be decided on merit and in view of the said fact the prayer for dismissing the revision as barred by time is rejected. ( 7 ) BEFORE coming to the merit of the case I would like to say that none has appeared on behalf of the Commissioner of Sales Tax to press this revision and it is unfortunate that no assistance has been rendered to the court on his behalf. ( 8 ) I have heard Sri Raja Ram Agarwal, learned counsel for the respondent-assessee and perused the impugned order of the Tribunal and that of the Commissioner of Sales Tax. It has not been disputed by the Revenue that 85 per cent of total vegetable turpentine oil manufactured by the assessee is used by M/s. Camphor and Allied Products Limited, Bareilly, as raw material for manufacturing camphor and its bye-products. It has also not been disputed by the parties before the Tribunal that prior to the issuance of the aforesaid two notifications vegetable turpentine oil was being treated as oils of all kinds and taxed at the rate of 4 per cent. On the basis of the aforesaid undisputed facts it has been urged on behalf of the assessee that since the vegetable turpentine oil is being used as raw material for manufacture of camphor it should be taxed under entry "oils of all kinds" and since it is not used in paints and varnishes it should not be taxed at the rate of 10 per cent. ( 9 ) IN Bishambar Dayal Shri Niwas v. Commissioner of Sales Tax, Uttar Pradesh [1963] 14 STC 184 (All.), which has been relied upon by the Tribunal, the question before a Division Bench of this Court was how an article which comes within two categories to which different rates are applied, is to be classified. ( 9 ) IN Bishambar Dayal Shri Niwas v. Commissioner of Sales Tax, Uttar Pradesh [1963] 14 STC 184 (All.), which has been relied upon by the Tribunal, the question before a Division Bench of this Court was how an article which comes within two categories to which different rates are applied, is to be classified. This Court after considering the matter in detail held : having regard to the intention of the legislature to tax sales, any ambiguity as to the category in which an article should be placed should be resolved with reference to its sale. If an article is sold as an article belonging to one category it must be treated as a sale of an article of that category even though it answers the description of another category. The legislature has fixed different rates for taxation for different categories according to certain principles it has in mind. If a colour is sold it charges sales tax on it at a certain rate, whereas if a chemical is sold it charges sales tax at a higher rate. If an article though capable of being used as a colour is sold as a chemical, it would be more in consonance with the legislative intention to assess sales tax on it as a chemical. When a question is put what was sold by the assessee ?, it would be truer to say that he sold a chemical than to say that he sold a colour. If an article is capable of being used as a chemical and also as a colour, the answer to the question what he sold would depend upon how it was treated by the vendor. If he stocked and sold it as a chemical, it would be a chemical sold by him and more so if it was bought by the vendee also as such. ( 10 ) IT is common knowledge that vegetable turpentine is used in paints and varnishes also. I put a straight question to Sri Raja Ram Agarwal, learned counsel for the respondent-assessee, whether vegetable turpentine is used only as a raw material for producing camphor or it is also used in paints and varnishes. ( 10 ) IT is common knowledge that vegetable turpentine is used in paints and varnishes also. I put a straight question to Sri Raja Ram Agarwal, learned counsel for the respondent-assessee, whether vegetable turpentine is used only as a raw material for producing camphor or it is also used in paints and varnishes. He candidly replied that vegetable turpentine is used in paints and varnishes also but his contention is that since it is being used in paints and varnishes and also as a raw material for manufacture of camphor and the vendor, M/s. Camphor and Allied Products limited, Bareilly, is treating it as an oil, the sale made by the respondent-assessee to the aforesaid vendor should be treated as "oils of all kinds" and not as a material used for painting and varnishing. ( 11 ) IN support of his contention learned counsel for the respondent-assessee placed reliance on a division Bench decision of this Court in Industrial Gases Limited v. Commissioner, Sales Tax, u. P. , Lucknow [1968] 21 STC 124 (AIL ). In that case the question was "whether the oxygen so prepared is a chemical liable to be taxed under Section 3-A at the rate of 0-1-0 anna per rupee or it is a medicine liable to be taxed under Section 3 at a reduced rate ?" This Court relying on the decision in Bishambar Dayal Shri Niwas [1963] 14 STC 184 (All.) held that "oxygen is a chemical and it will be taxed at 0-1-0 anna per rupee when sold for industrial purposes and at three pies per rupee when sold for medicinal purposes". ( 12 ) LEARNED counsel for the assessee placed reliance on a Full Bench decision of this Court in commissioner, Sales Tax v. Ram Niwas Puskar Dutt [1971] 28 STC 736 and a decision of the supreme Court in Rainbow Steels Limited v. Commissioner of Sales Tax, U. P. 1981 UPTC 400. I have perused the aforesaid two decisions and I find that they also support the contention of the learned counsel for the respondent-assessee. ( 13 ) SINCE no counsel appeared on behalf of the Commissioner of Sales Tax, Mr. Kunwar Saxena, assistant Commissioner, Sales Tax, who was present in Court, invited my attention to a Division bench decision of this Court in Commissioner of Sales Tax v. Narain Das Barey Lal 1978 UPTC 381. ( 13 ) SINCE no counsel appeared on behalf of the Commissioner of Sales Tax, Mr. Kunwar Saxena, assistant Commissioner, Sales Tax, who was present in Court, invited my attention to a Division bench decision of this Court in Commissioner of Sales Tax v. Narain Das Barey Lal 1978 UPTC 381. In that case the facts were that a small portion of rice bran was used for the purposes of extracting oil but the bulk of the rice bran was used for fodder for cattle. This Court held that "as rice bran is used primarily for feeding cattle and, as in common parlance, it would be classified as a cattle fodder, it is not possible to take the view that it would go outside the purview of cattle fodder only on account of the special use to which it was put by some consumers". In the instant case the facts are entirely different. The Revenue has not disputed the fact that 85 per cent of the vegetable turpentine oil manufactured by the assessee is sold to M/s. Camphor and Allied products Limited which used the same as raw material for manufacturing camphor and the contention of the assessee is that this 85 per cent of the sale turnover made by the assessee has to be taxed as oils of all kinds". ( 14 ) FROM the foregoing discussion it is clear that even if a commodity is used for two different purposes, it is the use which will determine the nature of the commodity liable to be taxed. It is not disputed that 85 per cent of the vegetable turpentine is sold to M/s. Camphor and Allied products Limited, Bareilly, which used it as oil. Thus in my opinion the Tribunal was fully justified in holding that 85 per cent of the vegetable turpentine sold by the to the aforesaid firm would fall under item No. 31 of the List of Notification No. 5785 dated September 7, 1981 and the sales tax would be chargeable at the rate of 4 per cent. ( 15 ) IN the result the revision fails and is accordingly rejected. However, there will be no order as to costs. .