JUDGMENT A. R. TIWARI, J. - At the instance of the applicant-assessee, the Tribunal (Board of Revenue, Gwalior) has referred the undernoted common question of law in these two reference applications under section 44(1) of the Madhya Pradesh General Sales Tax Act, 1958, read with section 13 of the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 - Entry Tax Act, arising out of the order of the Tribunal dated January 28, 1984, in Appeal Nos. 232 and 233-IV/83 : "Whether, under the facts and circumstances of the case, the Board of Revenue was justified in holding that watery coconut is not exempt from payment of entry tax in terms of entry 5(viii) of Schedule II of Entry Tax Act ?" 2. Facts lie in a narrow compass. The assessee is a trader in coconut apart from oil. For the Diwali year 1978-79 and 1979-80, it was assessed to entry tax considering watery coconut as liable to entry tax (annexures "B/1" and "B/2"). The assessee appealed to the Appellate Deputy Commissioner, Ujjain, submitting that coconut and watery coconut were two different things, and contending that watery coconut is not liable to payment of entry tax. The appellate authority, however, rejected the appeals (annexures "C/1" and "C/2"). The assessee then filed second appeal to the Tribunal contending that watery coconut fails within the definition of tender coconut and is not included in the oil-seeds. The Tribunal, however, rejected the appeals (annexure "D") and held that the watery coconut was not exempt from payment of entry tax in terms of entry 5(viii) of Schedule II of Entry Tax Act. On applications of the assessee, the Tribunal then referred the question, as noted above. 3. We have heard Shri G. M. Chaphekar, learned senior counsel with Kumari Vandana Kasrekar, for the applicant-assessee and Shri Piyush Mathur, learned Deputy Government Advocate for the non-applicant/department in these two cases. 4. Section 6(1) of the aforesaid Act provides that subject to the provisions of sub-section (2) the tax payable by a dealer under this Act shall be levied on the taxable turnover relating to goods specified in Schedule II at the total rate as mentioned in the corresponding entry in column (5) of the said Schedule. 5. Entry 5(viii) of Schedule II of the Entry Tax Act the provides as under : "(viii) Coconut (i.e., copra excluding tender coconuts) (Cocos Nucifera)." 6. 5. Entry 5(viii) of Schedule II of the Entry Tax Act the provides as under : "(viii) Coconut (i.e., copra excluding tender coconuts) (Cocos Nucifera)." 6. It is thus clear that coconut, i.e., copra excluding tender coconuts is exposed to levy of tax in terms of section 6(1) of the aforesaid Act as pointed out above. This provision does not specifically contain watery coconut. The explanation like copra further clarifies the position. In other words watery coconut is not shown to be taxable item. 7. In [1974] 34 STC 103 (Sri Siddhi Vinayaka Coconut & Co. v. State of Andhra Pradesh), the apex Court held as under : "We also accept the contention put forward on behalf of the State of Andhra Pradesh that 'watery coconuts' and 'dried coconuts' are two distinct commodities commercially speaking. Watery coconuts are put to a variety of uses, e.g., for cooking purposes, for religious and social functions, whereas dried coconuts are used mainly for extracting oil. This Court has in a number of cases held that the same commodity at different stages could be treated and taxed as commercially different articles. In A. Hajee Abdul Shukoor & Co. v. State of Madras [1964] 15 STC 719 (SC); [1964] 8 SCR 217 this Court held that 'hides and skins in the untanned condition are undoubtedly different as articles of merchandise than tanned hides and skins' and pointed out that 'the fact that certain articles are mentioned under the same heading in a statute or the Constitution does not mean that they all constitute one commodity'. We may also refer to the decisions in Jagannath v. Union of India [1962] 2 SCR 118, where tobacco in the whole leaf and tobacco in the broken leaf were treated as two different commodities, East India Tobacco Co. v. State of Andhra Pradesh [1962] 13 STC 529 (SC); [1963] 1 SCR 404, where Virginia tobacco and country tobacco were treated as two different commodities, and Venkataraman v. State of Madras [1970] 25 STC 196 (SC), where cane jaggery and palm jaggery were treated as two different commodities." 8. In [1966] 18 STC 285 (Commissioner of Sales Tax, Madhya Pradesh, Indore v. Bakhat Rai and Co.), this Court has held that every article or seed which can yield oil is not an oil-seed as contemplated by law. 9. The real test is whether coconut is copra. In [1966] 18 STC 285 (Commissioner of Sales Tax, Madhya Pradesh, Indore v. Bakhat Rai and Co.), this Court has held that every article or seed which can yield oil is not an oil-seed as contemplated by law. 9. The real test is whether coconut is copra. As watery coconut is not liable to be classified as copra, it cannot be said that it is liable to tax. Mere expression like copra excluding tender coconut is not sufficient to show that watery coconut is liable to be taxed. The department was required to show that watery coconut was in reality copra and thus liable to tax. Such is not the case here. 10. In the circumstances, we are satisfied that the Tribunal was not justified to say that watery coconut was not exempt from payment of entry tax in terms of the aforesaid entry. 11. In the result, we answer the question in both these reference applications as negative, i.e., in favour of the assessee and against the department. 12. These reference applications are disposed of accordingly with no order as to costs. 13. A copy of this order shall be sent to the Tribunal under the seal of the court and signature of the Registrar in terms of section 44(5) of the Act. The Tribunal shall now proceed accordingly. 14. This order shall be retained in Misc. Civil Case No. 301 of 1986 and its true copy shall be placed on the record of the connected Misc. Civil Case No. 302 of 1986, for ready reference. Reference answered in the negative.