JUDGMENT K. C. Bhargava, J. 1. The question of law involved in this writ petition is whether sulphur sludge is sulphur and taxable under item no. 1 Clause V of Nagar Mahapalika, Bareilly Octroi Schedule. 2. M/s. Maha Luxmi Chemicals Industrial Estate, Clutternuck Ganj, Bareilly, is engaged in reclamation of sulphur from sulphur sludge which is a waste product of fertilizer and chemical plants and looks as black clay almost like coal dust. According to the petitioner, sulphur sludge contains roughly 10 to 12 percent of sulphur. According to Octroi Rules of the Nagar Mahapalika, Bareilly, Octroi is payable on different commodities in accordance with the schedule to the Rules. Sulphur and chemicals are dealt with under Clause V item no. 1 relating to chemicals, medicines paints, colours, perfumes and general merchandise. According to the petitioner the sulphur sludge can, by no stretch of reasoning, be said to be covered by the Entry regarding all kinds of chemicals occurring at item no. 1 Clause V of Nagar Mahapalika Bareilly Octroi Rules. The opposite party no. 1 is charging octroi illegally at the rate of Rs. 5/- per quintal, treating it as covered by item no. 1 of Clause V of Nagar Mahapalika Bareilly Octroi Schedule. According to the opposite party sulphur sludge is covered by item no. 1 of Clause IV of the schedule. According to the Nagar Mahapalika, Bareilly, sulphur sludge is a chemical and is not a source of extracting chemical and hence it is chargeable. Sulphur sludge falls in item no. 1 of Clause V of the schedule of Nagar Mahapalika Bareilly Octroi Rules., It may be mentioned that the petitioner also filed a writ petition which was disposed of on 30-3-1987 by a Division Bench of this Court. The order of the Bench is contained in Annexure no. 5 filed by the petitioner. The petition was disposed of finally at the stage of admission. It was ordered that sulphur sludge is chargeable at Rs. 6/- per metric ton if the order dated 15th January, 1987 passed by the Deputy Administrator Mr. Pandey still subsists. 3. Learned counsel for the petitioner and the opposite parties have been heard. 4. In order to appreciate the controversy in the present case, it is necessary to see as to what sulphur sludge is. 6/- per metric ton if the order dated 15th January, 1987 passed by the Deputy Administrator Mr. Pandey still subsists. 3. Learned counsel for the petitioner and the opposite parties have been heard. 4. In order to appreciate the controversy in the present case, it is necessary to see as to what sulphur sludge is. According to the petitioner sulphur sludge is a waste product of fertilizer and chemical plants and contains about 10 to 12 percent of sulphur. Sulphur is a mineral. Word 'sludge' has been defined in the Concise Oxford Dictionary Eleventh Edition reprinted in 1984 at page 998 in the first column as : "thick greasy mud; sewage (activated sludge); muddy or slushy sediment of deposit......" 5. In the same dictionary at page 1068 word 'Sulphur' has been defined as i "pale-yellow non-metallic element having crystalline and amorphous forms, burning with blue flame and suffocating smell...... 6. Thus, the definition of 'sludge' and 'Sulphur' goes to show that sludge is a 'mud' or 'sewage'. According to the petitioner it is of black colour and contains 10 to 12 percent of Sulphur. Sulphur is pale yellow in colour. Keeping in view these facts the sludge may contain a small percentage of sulphur but definitely the sulphur sludge cannot be treated as sulphur and it is not covered by entry 'All type of minerals' taxable under item no. 1 of Clause V of Octroi schedule of Nagar Mahapalika, Bareilly. 7. Thus, according to the above meaning, sulphur sludge can be said to be a mud containing sulphur but it cannot be described as sulphur. 8. Word 'chemical' has been defined in the Webster's Third New International Dictionary 1971 Edition Volume I, A to G at page 384 as "a substance (as an acid, alkali, salt, synthetic organic compound) obtained by a chemical process prepared for use in chemical manufacture, or used for producing a chemical effect." In Hackh's Chemical Dictionary, Grant Third Edition, word 'Chemical' has been defined as "(i) pertaining to Chemistry and (2) a substance of definite and known composition." 9. In the case of Commissioner of Sales Tax, U. P. Lucknow v. M/s. Krishna Chemicals, 1978 UPTC 751, at page 752 it was held that "There is ample authority to the effect that the word "chemical" as occurring in this notification has to be interpreted not as a term of art but as understood in common parlance in the commercial word." 10. In the case of INdian Ceramic House, Agra v. Commissioner of Sales Tax, U. P. Lucknow, 1970 (Volume 26) Sales Tax Cases 413 at page 416 a Bench of this court relied on the decision of Bishambhar Dayal v. Commissioner, Sales Tax Uttar Pradesh, (1963) 14 STC 184 in which it was held that: "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. If an article is capable of being used as a chemical and also as a colour, the answer to the question what was sold, would depend upon how it was treated by the vendor." In the case of Commissioner of Sales Tax v. Prayag Chemical Works, (1970) 25, STC 85 a Full Bench of this Court also considered whether Sodium Silicate can be called a Chemical. It was observed at page 91 as under : "A dealer selling chemical offers them for sale because he considers them saleable. They are saleable because they can be the subject of use or consumption or profit to a prospective buyer and that depends upon their properties. A commodity is offered for sale as a chemical because of its chemical properties. Therefore, the entry 'Chemical of all kinds' refers to those commodities which because of their chemical properties prompt a dealer to offer them for sale and induce a purchaser to buy them." 11. In the case of Industrial Chemical Corporation Ghaziabad Meerut v. Commissioner Sales Tax U. P., 1972 UPTC 310, a Bench of this Court at page 311 observed that : "Viewed in this light, we are of opinion that apart from other articles which may also be chemicals, articles which are generally used for producing chemical effect would be covered by that expression unless there is something to show that the trade and commerce in this country understands the expression 'chemical' in some other sense." 12. It is not the case of the opposite parties that sulphur sludge is used for producing chemical effect. Sulphur contents in the sulphur sludge is hardly 10 to 12 percent as alleged by the petitioner and not denied by the opposite parties. Therefore, on the face of it, it cannot be said that sulphur sludge is a chemical as it contains about 10 to 12 percent sulphur. Sulphur is a chemical which causes chemical effect but the sulphur sludge which is a waste product of certain Factories does not produce any chemical effect and it is also not produced by any chemical process which, may, as such, be used as a chemical. The petitioner extracts sulphur from the sulphur sludge who purchases the sulphur sludge from the Factories as a waste product. It does not procure the' same as sulphur and when it is imported inside municipal limits, it is not sulphur but it is merely a sulphur sludge, The Factories who sell the sulphur sludge do not sell it as sulphur and the same is also not purchased by the petitioner as sulphur. When none considers the sulphur sludge as sulphur and the sulphur sludge is not used as sulphur then, sulphur sludge cannot be treated as sulphur. The sulphur sludge even on the admitted case of the parties does not answer the description of sulphur. Therefore, sulphur sludge cannot be described as sulphur and it cannot be said that it is covered by the Entry 'All types of chemicals' as mentioned in item no. 1 Clause V of Octroi Schedule Nagar Mahapalika, Bareilly. Thus, in view of this matter sulphur sludge is not a chemical and cannot be described as sulphur so as to be taxable under item no. 1 Clause V of Octroi Schedule of Nagar Mahapalika, Bareilly. The attention of the Court has been drawn to Annexure no. 9 which is the order of the Up Nagar Adhikari (I) acting as Administrator, Nagar Mahapalika Bareilly dated 16-5-1987. By this order the Up Nagar Adhikari (I) acting as Administrator has fixed the rate of octroi chargeable on sulphur sludge at Rs. 5/- per quintal. Up Nagar Adhikari (I) acting as Administrator, has held at page 5 that he has no doubt that this Sulphur sludge definitely falls under item no. 5 (1) of the Octroi Schedule. By this order the Up Nagar Adhikari (I) acting as Administrator has fixed the rate of octroi chargeable on sulphur sludge at Rs. 5/- per quintal. Up Nagar Adhikari (I) acting as Administrator, has held at page 5 that he has no doubt that this Sulphur sludge definitely falls under item no. 5 (1) of the Octroi Schedule. At page 7 also he has come to the conclusion that in this kind of situation Rule 5 (3) is clearly applicable and there being a clear provision in Rule 5 (3) the provisions of Rule 62 apply hence in these circumstances, the order of Sri Pandey dated 15-1-1987 cannot be deemed to be an order under rule 62. This order of the Up Nagar Adhikari (I) acting as Administrator cannot be sustained as he has come to wrong conclusion that the sulphur sludge falls under item no. 3 (1) of the Octroi Schedule of Nagar Mahapalika, Bareilly. 13. It has further been argued by the learned counsel for the respondent that sulphur sludge can in any case be classified as residuary item. IT is not necessary for this Court to enter into the controversy whether sulphur sludge is covered by item no. 15 of Clause X of Octroi Schedule of, Nagar Mahapalika Bareilly. This question is left open to be decided in appropriate proceedings. 14. In view of the above discussion, the writ petition is allowed, the order dated 16-5-1987 contained in Annexure no. 9 passed by the Up Nagar Adhikari (I) acting as Administrator is hereby quashed. Consequently writ of mandamus is issued commanding the respondents to refund the octroi realised, if any, from the petitioner from 12-5-1986 onwards. The parties shall bear their own costs. Petition allowed.