JUDGMENT 1. - The question involved in these revision petitions filed by the Revenue is short but interesting question of law as to whether by issuing a rate Notification, there is an implied supersession of the Exemption Notification issued by the State Government and whether in the present cases the rate of tax applicable on the sale of hydraulic excavators (earth moving and mining machinery), mobile cranes and hydraulic dumper would be 8% w.e.f. 19th June, 2000 with the issuance of notification prescribing 8% tax vide Entry No. 106-C by the State Government, notwithstanding the previous notification for partial exemption on the said goods vide notification SO No. 356 dated 30.3.2000. The assessee succeeded before the learned Tax Board. In the impugned order dated 12.1.2009, the Tax Board following its own previous order in the case of Telco Construction & Equipment Company Ltd. v. Assistant Commissioner, (2000) 2 RTR 28 held in favour of the respondent assessee that the assessing authority was not justified in imposing sales tax at the rate of 8% on the respondent assessee. 2. Learned counsel for the Revenue, Mr. VK. Mathur and Mr. Lokesh Mathur urged, relying on the decision of Apex Court in the case of Commissioner of Sales Tax, UP v. Agra Belting Works, Agra, 1987 SCC (3) 140 that with issuance of the Notification granting partial exemption to the assessee vide notification SO No. 356 dated 30th March, 2000 and consequently w.e.f. 19.6.2000 the assessee was liable to pay 8% sales tax on the sale of hydraulic excavators sold by it, during the relevant period. 3. On the other hand, Mr. Pankaj Bohra and Mr. 3. On the other hand, Mr. Pankaj Bohra and Mr. Niraj Jain appearing for the respondent-assessee vehemently submitted that while first rate notification issued under Section 4 of the RST Act 1994 vide notification SO No. 355 dated 30.3.2000, the State Government had prescribed rate of tax in the said notification vide Entry No. 28 at the rate of 4% and by another notification issued on the same date vide SO No. 356 dated 30.3.2000 the State Government exercising its powers under Section 15 of the Act had exempted the tax on sale of hydraulic excavators over 2% rate of tax for a period of 1 year ending on 31.3.2001 and in view of exercise of non-obstante power under Section 15 of the Act, the said partial exemption cannot be sought to have been impliedly superseded on 19.6.2000 when the State Government vide amending notification under Section 4 of the Act amended the first Notification No.355 dated 30.3.2000 by inserting the relevant entry No. 106 C therein relating to hydraulic excavators imposing 8% tax thereon since there was no specific supersession by said Notification dated 19/6/2000 by the State Govt. They further submitted that by subsequent notification issued under Section 8(5) of the Central Sales Tax Act, 1956 on 30/9/2000 also. The State Government had prescribed the rate of tax on the inter-state sales of hydraulic excavators and heavy earth moving machines at 2% and, therefore, the intention of the Legislature throughout was to impose tax on sale of hydraulic excavators at the rate of 2% only. They relied on the decision of Allahabad High Court in the case of Systematic Conscom Ltd. v. State of U.P. & Ors., 2009 (6) ALJ 27 and decision rendered by this Court in the case of Assistant Commissioner v. Jyoti Cotton Industries, STR No. 248/2008 decided on 25.9.2008 in support of their contentions. Learned counsel for the assessee also tried to distinguish the Supreme Court decision in the case of Commissioner of Sales Tax v. Agra Belting Works , relied upon by the learned counsel for the Revenue, and submitted that rate of tax applicable for the relevant period from 19.6.2000 to 31.3.2001 would continue to be 2% and not 8% as contended by the learned counsel for the Revenue. 4. 4. I have heard learned counsels at length and perused the relevant Statutes and judgments cited at the Bar and the record of the case. 5. Having given my thoughtful consideration to the controversy in hand, this Court is of the considered opinion that actual controversy involved in the case is no longer res integra and stands concluded by the decision of Apex' Court in the case of Commissioner of Sales Tax v. Agra Belting Works (Supra) and the revision petitions filed by the Revenue deserves to be allowed. 6. The four notifications referred to by the learnt counsels and which are relevant for the present purposes are reported hereunder to the relevant extent in stratum. 6.1 - First Notification No. F4(1) FD/Tax Div./2000-279 dt: 30/3/2000, Raj. Gaz.Exty. Pt.IV-C(II) dt: 30.3.2000 p.499(57) "S.O. 355. - In exercise of the powers conferred by Section 4 of the Rajasthan Sales Tax Act, 1994 (Rajasthan Act No. 22 of 1995), and in supersession of this Department Notification No.F.4(4)FD/Tax Div./99-126, dated March 26, 1999 (as amended from time to time), the State Government being of the opinion that it is expedient in the public interest so to do, hereby provides that with immediate effect the rate of tax payable by a dealer in respect of the goods specified in Column 2 of the List annexed hereto, shall be as shown against them in Column 3 of the said List:- S.No. Description of goods Rate of Tax (%) 1. to 27 ................ 28 Hydraulic excavators (earth moving and mining machinery), mobile cranes and hydraulic dumpers. 4.00% 29. to 84 ....... 6.2- Second Notification No.[F.4(1)FD/Tax Div./2000-279] dt: 30.3.2000 "S.O. 356. - In exercise of the powers conferred by Section 15 of the Rajasthan Sales Tax Act, (994 (Rajasthan Act No.22 of 1995) the State Government being of the opinion, that it is expedient in the public interest so to do, hereby exempts from tax the sale of the goods specified in column 2 of the List annexed hereto, to extent to which the rate of tax exceeds the extent of rate as specified in Column 3 up to the period as mentioned in Column 4, namely:- LIST No. Description of goods Extent of rate (%) Period 1 2 3 4 1 Hydraulic Excavators (Earth moving and Mining Machinery), mobile cranes, hydraulic dumpers. 2 31.03.2001 2. 2 31.03.2001 2. to 18........" 6.3 - Third Notification No. S.No. 1219: f.4(1)FD/Tax/Div./2000-360 dated, June 19, 2000 S.O. 100 - In exercise of the powers conferred by Section 4 of the Rajasthan Sales Tax Act, 1994 (Rajasthan Act No.22 of 1995), the State Government, hereby makes the following amendment in this department notification No.F.4(1)FD/Tax-Div./2000-279 (S.No.1155) dated 30 March, 2000 (as amended from time to time), namely : AMENDMENT In the said list appended to the said notification : 1. The existing entries in all the columns of serial number 7 shall be deleted. 2. The existing entries in all the columns of serial number 28 shall be deleted. 3. After the existing entry at serial number 106A and before serial number 107, the following new entries shall be inserted, namely : S.No. Description of the goods Rate of Tax (%) 106(B) (i) Water pumping sets and Oil Engine including parts thereof but excluding those sets with motor having capacity below 10 Hors Power. 8.00% (ii) Water Pump-set accessories namely hos-collar hose-socket, hose connector, hose-clip, hose-nipple, foot-valve and delta starters including its parts. 8.00% 106(C) Hydraulic excavators (earls moving and mining machinery), mobile cranes and hydraulic dumpers 8.00% 4. The existing entries in all the columns of serial number 72 shall be deleted. 5. After the existing entry at serial number 174A and before serial number 175 the following new entries shall be inserted, namely : S.No. Description of the goods Rate of Tax (%) 174(B) Silk other than Silk fabrics as defined in item 50.03 of the Schedule to the Central Excise Tariff Act, 1985 12.00% 174(C) Naphtha 12.00% "6.4 - Fourth Notification No.F.4(1)FD/Tax-Div./2000-401, dated 30.9.2000 - Raj. Gaz., Exty., Pt-IV- C(ll), dated 11.10.2000, p.279(3).] - S.O.233 --In exercise of the powers conferred by sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (Central Act No. 74 of 1956), the State Government being satisfied that it is necessary in the public interest so to do hereby directs that the tax payable under sub-secs.(1) and (2) of the said section, by any dealer having his place of business in the State, in respect of the sales of Hydraulic Excavators and Heavy Earth Moving Machinery made by him from any such place of business in the course of inter State trade or.commerce, shall be calculated at the rate of 2%." 7. The question involved in the present case is as to whether by the third Notification of 19th June, 2000, the second Notification namely SO no. 356 dated 30/3/2000 stood impliedly superseded or not? It is true that the second Notification SO No.356 dated 30/3/2000 provided for a partial exemption of rate of tax exceeding 2% on Hydraulic Excavators vide Entry No.1 up to the period ending on 31/3/2001 and the said Notification was issued on the same date when the Notification SO No. 355 prescribing rate of tax on various commodities, as many as 193 and Entry No.194 being residuary entry and, even though Entry No.28 in the first Notification SO No.355 dated 30/3/2000 provided rate of tax at 4% on Hydraulic Excavators, the same was partially exempted by second Notification SO No.356 and rate over 2% was exempted by second Notification up to 31/3/2001. Further the third Notification came to be issued by the State Government on 19/6/2000 after about 21/2 months and again rate of tax on Hydraulic Excavator was provided at 8% by deleting relevant Entry no. 28 relating to Hydraulic Excavator and inserting fresh Entry No. 106 C relating to Hydraulic Excavators in the said First Rate Notification dated 30/3/2000. It is not in dispute before this Court that the commodity in question is Hydraulic Excavator and covered by the said Entries in the aforesaid Notifications and it is also not in dispute that the State Government has power to grant exemption and also to revoke the said exemption. What has been contended by the learned counsel for the assessee is that the second Notification SO No. 356 was for a specific period up to 31/3/2001 and, therefore, the subsequent amendment in SO No. 356 by third Notification dated 19/6/2000 will not impliedly supersede or eclipse or overrule the second Notification before 31/3/2001 and rate of tax at 2% will continue to be applicable on the sale of Hydraulic Excavators. This contention of learned counsel for the assessee is misconceived and runs contrary to the decision of Apex Court in the Case of Agra Belting Works (supra), wherein, the Apex Court clearly laid down that once the rate of tax is prescribed by the State by a valid Notification, there is no requirement that Notification of recall of exemption is a condition precedent to imposing tax at ant prescribed rate and infect such second Notification providing for rate of tax on a particular commodity should be construed as a combined Notification- both for withdrawal of exemption and also for providing higher tax. Thus, it is the point of time for issuing Rate Notification which is important. Admittedly, Third Notification dated 19/6/2000 was issued after First & Second Notification were issued on 30/3/2000. While Second Notification SO. No.356 gave partial exemption over 2% rate of tax on sale of Excavators in view of rate of tax of 4% prescribed by First Notification SO. No.355 of even date, but same could not hold the field even after fresh Rate Notification for 8% rate was issued on 19/6/2000 by Third Notification. The partial exemption granted on 30/3/2000 should be deemed to have been withdrawn of 19/6/2000. The relevant extract of the decision of Apex Court in the case of Agra Belting Works is reproduced here under for ready reference: "As has been pointed out above, section 3 is the charging provision; section 3A authorises variation of the rate of tax and section 4 provides for exemption from tax. All the three sections are parts of the taxing scheme incorporated in the Act and the power both under Section 3A as also under section 4 is exercisable by the State Government only. When after a notification under Section 4 granting exemption from liability, a subsequent notification under section 3A prescribes the rate of tax, it is beyond doubt that the intention is to withdraw the exemption and make the sale liable to tax at the rate prescribed in the notification. When after a notification under Section 4 granting exemption from liability, a subsequent notification under section 3A prescribes the rate of tax, it is beyond doubt that the intention is to withdraw the exemption and make the sale liable to tax at the rate prescribed in the notification. As the power both for the grant of exemption and the variation of the rate of taxed vests in the State Government and it is not the requirement of the statute that a notification of recall of exemption is a condition precedent to imposing tax at any prescribed rate by a valid- notification under Section 3A, we see no force in the contention of the assessee which has been upheld by the High Court. In fact, the second notification can easily be treated as a combined notification both for withdrawal of exemption and also for providing higher tax. When power for both the operations vests in the State and the intention to levy the tax is clear we wee no justification for not giving effect to the 2nd notification. We would like to point out that the exemption was in regard to a class of goods and while the exemption continues a specific item has now been notified under Section 3A of the Act." 8. In view of the aforesaid binding precedent of Apex Court, the Division Bench decision of Allahabad High Court cannot hold the field and is of no avail to the counsel for the assessee. As far as decision of this Court in the case of Asstt. Commissioner, M/s Jyoti Cotton Industries (supra) is concerned, the same is clearly distinguishable because in that case the Court found that specific Notification covering the specific commodity will override the general Notification covering all commodities and, therefore, on the basis of principle that special law will prevail over general law, this Court rejected the Revenue's revision petition. The said judgment does not touch the controversy involved in the present case. Therefore, this Court is of the clear opinion that with the issuance of Notification dated 19/6/2000, the second Notification SO No.356 dated 30/3/2000 stood impliedly superseded as far as Entry No.1 relating to Hydraulic Excavators was concerned and same stood substituted by Entry No. 106 C of the said Notification dated 19/6/2000 and rate of tax applicable on sale of Hydraulic Excavators etc. from 19/6/2000 would be 8%. from 19/6/2000 would be 8%. It is immaterial that under the CST Act by a subsequent fourth Notification dated 30/9/2000, the State Government again chose to levy the rate of sales tax on inter state sales of Hydraulic Excavators at 2%. This Notification cannot said to be providing for rate of tax applicable on local sales within the State of Rajasthan nor has the effect of undoing the Notification issued by the State Government on 19/6/2000. Therefore, the contention of assessee that partial exemption over 2% rate of tax on Hydraulic Excavators would continue up to 31/3/2001 despite issuance of third Notification on 19/6/2000 is liable to be rejected and is, therefore, rejected. 9. Consequently, respectfully following the decision of Apex Court in the case of Agra Belting Works (supra), this Court is of the view that revision petitions filed by Revenue deserve to be allowed and the impugned order of learned Tax Board dated 12/1/2009 deserves to be set aside and same is hereby set aside. The order passed by the Assessing Authority is restored to the extent of imposition of tax and interest thereon. However, as far as question of imposition of penalty under Section 65 of the Act for concealment is concerned, since the assessee had disclosed the sales duty in the books of accounts, no case for imposition of penalty under Section 65 can be said to be made out and, therefore, the deletion of penalty by the appellate authorities is upheld while maintaining the levy of tax and interest upon the respondent assessee. 10. Accordingly, these revision petitions of Revenue are partly allowed as aforesaid. No order as to costs.Revisions Partly Allowed. *******