V.S.Sirpurkar, J: Heard the Government Pleader. 2. The assessee challenges the order of the Special Tribunal, whereby the Special Tribunal has accepted the revision filed by the revenue against the orders favourable to the assessee and revive the order of the Sales Tax Appellate Tribunal. 3. The only questions, which cropped for consideration before us in this writ petition are (1) as to whether the Tribunal was right in holding that the assessee was covered under Sec.3(1) of the Tamil Nadu General Sales Tax Act (Act for short) and not under Sec.3(2) of the Act since the commodity of “acid oil” was not a vegetable oil and a chemical and secondly whether the authorities were right in inflicting penalty under Sec.12 of the Act. 4. Few facts would help us to understand the controversies in the present matter. The assessee is an Industry and deals in the vegetables and oils. It seems that the Assessing Authority during the assessment specifically considered the question of the said vegetable oil and found that the assessee had effected the sales and had paid the tax only at 4 percent for the relevant assessment year of 1987-88. He then proceeded to hold that the seized oil consisted of vegetable oil, chemicals and other visible and invisible foreign material. This oil could not be classified as vegetable oil or inferior grade vegetable oil and therefore he held that the sales turn over of the oil was liable for tax at 5 percent multi point as provided under Sec.3(1) of the Act. The observations seem to have been based on a stray reference in the order that the oil is called soap stock or acid oil or waste oil in the market. He accordingly taxed the turn over at 5 percent. The assessee had also claimed that he was not liable to be taxed on account of the purchase of the tins and tin tops. However, it is found against him that he was liable to be so taxed and a further penalty amounting to Rs.1,01,661 was inflicted. 5. In an appeal, however the first appellate authority came to the conclusion that the commodity i.e., the acid oil or inferior or soap oil could not be taxed at 5 percent under Sec.3(1). However, it is found against him that he was liable to be so taxed and a further penalty amounting to Rs.1,01,661 was inflicted. 5. In an appeal, however the first appellate authority came to the conclusion that the commodity i.e., the acid oil or inferior or soap oil could not be taxed at 5 percent under Sec.3(1). He accepted the claim of the assessee that it amounted to vegetable oil and therefore was liable to be taxed at single point under Sec.3(2) of the Act. As regards the penalty, the Appellate Authority did not choose to inflict any penalty on account of the purchase of tins and tin tops, but inflicted the penalty of Rs.6,689 on account of the failure of the assessee to report purchase of lime and stone. 6. The Appellate Authority’s Order came to be further appealed against by the assessee in so far as it pertained to the penalty while the Department also filed an enhancement application under Sec.36(3)(a). The Appellate Authority accepted the appeal of the assessee and reduced the penalty from Rs.6,608 to Rs.3,304. The Department’s petition challenging the appellate findings was however dismissed. The second appellate authority specifically held that the order passed by the first Appellate Authority was correct in so far as it pertained to the classification of the goods, acid oil. 7. The Department therefore proceeded to file revision before the Special Tribunal, Chennai and the Special Tribunal has upset both the orders. In the first place, it has come to the conclusion that the assessee was liable to be taxed at 5 percent and not at 4 percent as the acid oil or inferior oil which was obtained as a bye-product in the manufacture of refined oil was liable to be viewed as a chemical. In that, the Tribunal totally relied upon judgment of this Court in Madras Vanaspathi Ltd. v. State of Tamil Nadu, (1993)3 M.T.C.R. 155. The sale of the said acid oil or inferior oil, as the case may be, was held liable to carry tax at the rate of 5 percent. The Special Tribunal also came to the conclusion that the petitioner was liable to pay the tax in respect of the purchase of tins and tin tops under Sec.7A of the Act. On that finding, the Tribunal further inflicted the penalty at 50 percent amounting to Rs.30,593. The Special Tribunal also came to the conclusion that the petitioner was liable to pay the tax in respect of the purchase of tins and tin tops under Sec.7A of the Act. On that finding, the Tribunal further inflicted the penalty at 50 percent amounting to Rs.30,593. It is this order, which is in challenge before us. 8. The learned counsel for the petitioner to begin with pointed out that the reliance placed by the Tribunal on the aforementioned judgment of this Court was totally uncalled for and the said judgment was totally inapplicable to the facts of the present case. The thrust of the argument is that firstly, the issue as to whether the acid oil or inferior oil was a vegetable oil or not was not before the Court and secondly, in the relevant year, which was in consideration before this High Court, there was an entry 138 on the statute book, which entry was not available in the present case since that entry was deleted later on by an amendment. It was therefore pointed out by the learned counsel that the only issue, which was pending before the Court was, whether the acid oil was covered under the entry 138 which was “Dyes and Chemicals other than those specifically mentioned in this Schedule”. The learned counsel further points out that since this entry is deleted totally, the assessee was entitled to claim that the acid oil would be covered in the entry of vegetable oil, which is entry No.170. The learned counsel secondly points out that this question was directly considered by the Apex Court in the decision of Commissioner of Sales Tax, U.P. v. Prag Ice and Oil Mills, 80 S.T.C. 403. Lastly, the learned counsel pointed out that the penalty which was inflicted upon the petitioner on account of the purchase under Sec.7A should not have been inflicted as the law was unsettled at that time and the petitioner was entitled to take advantage of the decisions of the Court. 9. As regards the first and second contentions, we have gone through the decision of the Madras High Court in Madras Vanaspathi Ltd. v. State of Tamil Nadu, (1993)3 M.T.C.R. 155. We feel that the criticism by the learned counsel is quite justified. 9. As regards the first and second contentions, we have gone through the decision of the Madras High Court in Madras Vanaspathi Ltd. v. State of Tamil Nadu, (1993)3 M.T.C.R. 155. We feel that the criticism by the learned counsel is quite justified. There can be no dispute that that in the matter, which was dealt with by this Court, the entry under Sec.138, which we have quoted above was available. The Judgment starts with the following sentence. “The only question urged before us in all these revision cases is, whether” acid oil “ is a chemical covered by item 138 of the First Schedule of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as the” Act“).” (Emphasis supplied) In the judgment also, the learned Judges mentioned that the Tribunal had come to the conclusion that the “acid oil” comes under Entry 138 of the First Schedule of the Act, 1959. It is to be noted that it was this finding of the Tribunal alone, which was in challenge before the learned Judges. The learned Judges then also go to record that the acid oil comes out of the groundnut oil in the process of refining groundnut oil and Vanaspathi. Thereafter, however, the learned Judges went on to consider as to whether the said “acid oil” could be covered under the entry 138, in the sense, as to whether it was a chemical other than those specifically mentioned in the Schedule. Ultimately, the learned Judges found that the said “acid oil” could be viewed as a chemical and was therefore liable to be covered under the entry 138 as it then stood. Even at the cost of repetition, we may point out that the question before the Court in that case was not and we repeat “not” as to whether the “acid oil” amounts to a “vegetable oil”. The question was entirely different and the rationale on which the learned Judges wrote their findings would have to be viewed on the backdrop of the fact that this entry 138 was available. 10. However, now entry 138 is deleted. During the relevant years for the assessment in this case the said entry was not available. The question was entirely different and the rationale on which the learned Judges wrote their findings would have to be viewed on the backdrop of the fact that this entry 138 was available. 10. However, now entry 138 is deleted. During the relevant years for the assessment in this case the said entry was not available. Therefore, there would be no question as to whether the “vegetable oil” was a chemical or not and any finding to that issue that it would amounted to a chemical would in our opinion be not a binding finding on us. Because we are called upon to decide as to whether the “acid oil” or the “inferior quality oil” amounts to a “vegetable oil” and can be covered under the entry “vegetable oil”, that too, in the absence of entry 138. In our opinion therefore the said judgment of this Court was not apposite to the controversy before the Tribunal. When we see the order of the Tribunal, we find that the Tribunal has not even referred to the facts involved in the aforementioned case. It has dealt with the whole controversy in one paragraph merely after quoting the judgment. The only reason why they have followed this judgment is that the Tribunal had held in the assessment year 1980-81 in T.C.(R). 619 to 624/97 that the acid oil was not a vegetable oil. Now, again it was liable to be seen and realised that even in the year 1980-81, the said entry 138 was very much on the statute book. The deletion of that entry 138 was completely missed by the learned members of the Special Tribunal. The High Court’s judgment, which has been quoted by the learned Tribunal would and could have been available to the learned Tribunal for the assessment year 1980-81, but not after the entry was deleted, particularly, when the present relevant assessment year is 1987-88 when the entry is not available. We are therefore of the opinion that the Tribunal has gone wrong in following the decision of this High Court. However, the matters do not stop there. 11. The learned counsel referred to us a decision of the Apex Court in Commissioner of Sales Tax, U.P. v. Prag Ice and Oil Mills, 80 S.T.C. 403. In this decision, the Supreme Court has affirmed the view taken by the High Court. However, the matters do not stop there. 11. The learned counsel referred to us a decision of the Apex Court in Commissioner of Sales Tax, U.P. v. Prag Ice and Oil Mills, 80 S.T.C. 403. In this decision, the Supreme Court has affirmed the view taken by the High Court. The High Court’s view itself was based on the Supreme Court’s decision Thungabadra Industries Ltd. v. Commercial Tax Officer, 11 S.T.C. 827 (S.C.). We may quote the order: “The respondent assessee manufactures vegetable ghee from groundnut oil. The groundnut oil is mixed with acids and chemicals in order to purify and refine it. The residue left, after the removal of the refined portion, is sold to the soap manufacturers. According to the assessee the turn over of the sale of residue was taxable at one percent on the basis that the residue was still groundnut oil. The Sales Tax Officer rejected this contention and he held that the residue was oil of a different character being not edible and taxable at six percent. The view taken by the Sales Tax Officer was upheld in the appeal. The assessee went in revision and the revisional authority set aside the order of the Sales Tax Officer and the Appellate Authority and came to the conclusion that the residue, in its nature and character, was groundnut oil with greater impurities than the original oil. It was held that the residue was taxable as groundnut oil at one percent. At the instance of the Commissioner, Sales Tax, the following question was referred for the opinion of the High Court: ”Whether, on the facts and circumstances of the case, the Additional Judge (Revisions) was legally justified in holding the residual oil as groundnut oil simpliciter, even when it had undergone chance in its properties by their admixture of chemicals and acids? “ The High Court following the judgment of this Court in Thungabadra Industries Ltd. v. Commercial Tax Officer, 11 S.T.C. 827, came to the conclusion that the residue left, after going through the process of acids and chemicals, continues and remains to be the groundnut oil and is taxable at one percent. We agree with the reasoning and the conclusions reached by the High Court. ....” 12. Here also, the position is not different on facts. We agree with the reasoning and the conclusions reached by the High Court. ....” 12. Here also, the position is not different on facts. There can be no dispute that the impure oil or the acid oil is nothing but a residue of the available oil, which the petitioner manufactures or purifies as the case may be. Even this oil which the petitioner has sold and in respect of which the controversy has arisen is sold to the soap manufacturers as in the Supreme Court case. We therefore find ourselves bound by the Apex Court judgment and would respectfully abide by the same. The revision would have to be allowed in so far as the question of the taxability at 5 percent in contra distinction with 4 percent as was ordered by the first Appellate and second Appellate authorities and their orders would have to be restored setting aside the order of the Special Tribunal in this behalf. 13. That leaves us with the question of penalty, which was ordered by the Special Tribunal on account of the sale under Sec.7-A. The contention of the learned counsel is that the penalty, though minimum would be unjustified and the petitioner should be given the advantage of the uncertainty of the law as was prevailing at the relevant time. The learned counsel points out that the total penalty inflicted by the Tribunal amounts to Rs.30,593. We find from the order that earlier there was no penalty against the assessee on account of the turn over under Sec.7-A and at the second appellate stage, penalty was only on account of the purchase of lime stone and not on the purchase of tins and tin tops. The Tribunal however has chosen to penalise the assessee now on account of the purchase of tins and tin tops. The learned counsel has pressed into service the Division Bench judgment of this Court in W.P.No.120 of 2000 dated 14.9.2001. In that judgment, the taxability of such containers has been crystallised. The earlier decisions were that such containers or the bottles being a distinct commodity and not having been consumed earlier, that was a separate sale of containers and therefore Sec.7-A providing for levy of purchase of tax was not attracted. This Court took contrary view in favour of the taxability. The Division Bench thereupon in W.P.Nos.2188 to 2192 of 2000 etc. This Court took contrary view in favour of the taxability. The Division Bench thereupon in W.P.Nos.2188 to 2192 of 2000 etc. batch took the view that before inflicting the penalty, the assessing authorities had not applied their mind whether the penal provisions would apply under Sec.12 due to the uncertainty of laid down law. The Division Bench had therefore remanded the matter on the question of the levy of penalty holding that the assessee was under a bona fide belief that he was not liable to pay the tax. The situation is not different here. We would therefore remand the matter to the Special Tribunal to reconsider the question of penalty in the light of aforementioned judgment in Appolo Saline Pharmaceuticals (P) Ltd., Tirunelveli v. The Commercial Tax Officer, Palayamkottai, Asst Circle, Tirunelveli. The question of penalty would be fully open before the Special Tribunal. In the result, the writ petition is allowed to the extent indicated above with a request to the Tribunal to deal with the matter in the light of the reasoning given by us on the question of penalty. No costs. Consequently, the connected W.P.M.Ps are closed.