JUDGMENT : R.K. Patra, J. - At what rate sales tax is payable on the sale of "hand pump"? This is the core question that arises for consideration in this writ petition. 2. The petitioner is a partnership firm and is a dealer under the Orissa Sales Tax Act, 1947 (hereinafter referred to as "the Act"). It carries on business of manufacturing and selling of hand pumps and spare parts thereof. In response to the notice issued u/s 12(4) of the Act for the assessment year 1991-92, the petitioner appeared before the assessing officer and produced necessary documents with reference to the returns it filed earlier. The assessing officer noticed that it had sold water lifting hand pumps worth Rs. 52,52,724 to a registered dealer--Orissa Small Industries Corporation (Opposite party No. 6) on the strength of declaration in form XXXIV. Subsequently, on February 12, 1992 the petitioner filed a revised return disclosing the above sales to be taxable at the rate of 12 per cent but did not pay any tax thereon. The assessing officer treating the "water lifting hand pump" to be an item coming under the category of "machinery" as per entry No. 70 of the taxable list, levied tax at the rate of 16 per cent. This resulted in extra demand against the petitioner under the Act. The assessing officer also charged interest of Rs. 3,50,436. The petitioner being aggrieved by the said order of assessment preferred appeal. The Assistant Commissioner of Sales Tax in appeal confirmed the finding of the assessing officer that "water lifting hand pump" is "machinery" coming within the serial No. 70 of the taxable list for which tax is payable at the rate of 16 per cent. He, however, set aside that part of the order imposing interest. This decision of the appellate authority gave rise to filing of two appeals; one by the petitioner and other by the department before the Orissa Sales Tax Tribunal which in its order dated March 16, 1996 dismissed the former's appeal and allowed the appeal filed by the department. In the premises stated above, the petitioner has prayed for quashing of the impugned assessment order dated August 26, 1992 (annexure 8), first appellate order dated February 7, 1994 (annexure 9) and the second appellate order dated March 16, 1996 (annexure 10). In the premises stated above, the petitioner has prayed for quashing of the impugned assessment order dated August 26, 1992 (annexure 8), first appellate order dated February 7, 1994 (annexure 9) and the second appellate order dated March 16, 1996 (annexure 10). Its further prayer is that "water lifting pumpsets" should be charged to tax at lower rate than being charged at 12 per cent and to direct the Orissa Small Industries Corporation (opposite party No. 6) for refund of the tax as is relatable to the turnover of Rs. 52,52,724 and pay the taxes to it for effecting payment to the Government treasury towards the taxes as are due on such sale. 3. The Revenue, i.e., opposite parties 2, 4 and 5 have filed counter-affidavit resisting the claim of the petitioner. According to them "hand pumps" have rightly been treated as machineries and taxed at 16 per cent as per entry 70 of the rate chart prescribed under the Act. The Orissa Small Industries Corporation (opposite party No. 6) had not issued any certificate to the Sales Tax Officer indicating payment of tax. A copy of the letter No. 7267 dated June 29, 1992 issued by the aforesaid Corporation to the petitioner, however, shows that a sum of Rs. 6,30,277.38 had been deposited with the sales tax authorities, Cuttack on account of collection of Orissa sales tax. The said deposit could not be accounted for due to want of evidence. Moreover, as the petitioner is liable to pay the tax since "machinery" is the "first point tax-paid goods" and the petitioner being a selling dealer, the tax paid by the purchaser cannot be adjusted in the account of the seller. The Orissa Small Industries Corporation (opposite party No. 6) has filed a separate counter-affidavit. Its case is that it availed a purchase order from the concerned Chief Engineer for supply of "India Mark II hand pumps" to different consignees. Accordingly, it placed orders with the petitioner. In the purchase order placed with the petitioner, the condition of charging sales tax is as follows : "Sales tax shall not be paid to you and this Corporation will furnish sales tax declaration in lieu of such payment." After executing the order under the banner of O.S.I.C., the petitioner submitted its bill to it without charging sales tax. In the purchase order placed with the petitioner, the condition of charging sales tax is as follows : "Sales tax shall not be paid to you and this Corporation will furnish sales tax declaration in lieu of such payment." After executing the order under the banner of O.S.I.C., the petitioner submitted its bill to it without charging sales tax. Against the entire transaction of the petitioner during 1991-1992, opposite party No. 6 had not paid sales tax to the petitioner and in lieu of that issued form XXXIV and in return collected Rs. 6,30,277.38 from the ultimate purchaser against the corresponding bills and deposited the same in the Government treasury on March 18, 1992, March 30, 1992 and May 20, 1992 vide challan Nos. 19, 40 and 16. Since the opposite party No. 6 collected sales tax from the ultimate purchaser and duly deposited the said amount in Government treasury towards the said transaction, the petitioner should not be demanded to pay tax once more on the very transaction. 4. At this stage, it is worthwhile to extract various entries which were governing the field during the relevant period relating to "pump and pump sets". Sl. No. Description of goods Rate of tax 38. Diesel and kerosene pump sets Eight per cent 41-A. Electric pump set Eight per cent 70. Machineries excluding sewing machines and component parts and accessories thereof, (earth moving machineries) that is to say bulldozers, crawler tractors, shovels, wheeled loader scrappers, dumpers, tippers, motor graders. Sixteen per cent As already stated, the departmental authorities treated "hand pumps" as "machineries" coming within entry 70 and levied tax at 16 per cent on the disputed transactions. 5. Learned counsel for the petitioner submitted that although it is open to the Legislature or the State Government to select different rates of tax for different commodities, there must exist rational basis for discriminating one commodity and another for the purpose of imposing tax. He contended that if "diesel and kerosene pump sets" and "electric pump sets" are to be taxed at 8 per cent, there is no rational basis to treat "hand pump sets" differently and bring the same within the "machinery" (vide serial No. 70) and charge tax at 16 per cent. In this connection, he placed reliance on the judgment of the Supreme Court in Ayurveda Pharmacy and Another Vs. In this connection, he placed reliance on the judgment of the Supreme Court in Ayurveda Pharmacy and Another Vs. State of Tamil Nadu, He further submitted that the State Government in S.R.O. Nos. 137, 138 and 139 of the year 2000 published in the extraordinary gazette dated February 18, 2000 revised tax rates of several goods basing on the uniform floor rates as recommended by the Committee of the State Finance Minister on sales tax reforms and as per the notification the rate of tax on hand pump is as follows : Sl. No. Name of the commodity Existing rate of tax Revised rate 31. Hand pumps 12% 4%. According to him, this revision of rate is an indication that hand pumps do not come within the description of "machineries". 6. The Supreme Court in Arya Vaidya Pharmacy v. State of Tamil Nadu [1989] 73 STC 346 held as follows : "It is open to the Legislature, or the State Government if it is authorised in that behalf by the Legislature, to select different rates of tax for different commodities. But where the commodities belong to the same class or category, there must be a rational basis for discriminating between one commodity and another for the purpose of imposing tax. It is commonly known that considerations of economic policy constitute a basis for levying different rates of sales tax. For instance, the object may be to encourage a certain trade or industry in the context of the State policy for economic growth, and a lower rate would be considered justified in the case of such a commodity. There may be several such considerations bearing directly on the choice of the rate of sales tax, and so long as there is good reason for making the distinction from other commodities no complaint can be made. What the actual rate should be is not a matter for the courts to determine generally, but where a distinction is made between commodities falling in the same category a question arises at once before a court whether there is justification for the discrimination. In the present case, we are not satisfied that the reason behind the rate of 30 per cent on the turnover of arishtams and asavas constitutes good ground for taking those two preparations out from the general class of medicinal preparations to which a lower rate has been applied...." (emphasis* supplied). 7. In the present case, we are not satisfied that the reason behind the rate of 30 per cent on the turnover of arishtams and asavas constitutes good ground for taking those two preparations out from the general class of medicinal preparations to which a lower rate has been applied...." (emphasis* supplied). 7. As noticed earlier, for a pump set run by diesel or kerosene or electricity, rate of tax has been prescribed at 8 per cent. There is no valid reason as to why a pump set run by human hand should be differentiated from the pump sets run by diesel or kerosene or electricity, the source of power to run the pump set being immaterial. A pump set run by diesel or kerosene or electricity also answers the description of "machinery", but those pump sets are charged with different rate of tax. We, therefore, do not find the rationale behind the demand of tax at 16 per cent by treating "hand pumps" as "machineries". For the reasons aforesaid, we are of the considered opinion that the "hand pumps" cannot be brought within the meaning of "machineries" when pump sets run by diesel or kerosene or electricity have not been treated as "machineries". 8. In the result, the impugned orders holding that "hand pumps" are "machineries" and tax is leviable at 16 per cent on their sale are hereby quashed. The matter is remitted to the Sales Tax Tribunal to pass appropriate order keeping in view the observations made in this judgment which may be done within a period of three months of its receipt. The Sales Tax Tribunal will examine if the Orissa Small Industries Corporation (opposite party No. 6) already collected sales tax from the ultimate purchasers and deposited the same in the Government treasury. If it comes to a finding in the affirmative, it is needless to mention that the petitioner cannot be demanded to pay tax once more. We may notice here that the learned counsel for the petitioner submitted that as there was no specific entry for hand pumps in the taxable list at the relevant time, tax on hand pumps could at the worst be levied at 12 per cent as per residuary entry. The writ petition is allowed. No costs. P.K. Misra, J. 9. I agree. Final Result : Allowed