JUDGMENT V.C. Daga, J. Heard. Perused reference. This is a reference under section 61(1) of the Bombay Sales Tax Act, 1959 ("the BST Act", for short) made by the Sales Tax Appellate Tribunal, Mumbai ("the Tribunal", for short) to this court to seek an opinion on the following substantial question of law : Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the machinery sold by the applicant was not agricultural machinery covered by entry 1, Part I of Schedule C but it was covered by entry 135, Part II of Schedule C to the BST Act as held by the Commissioner of Sales Tax, Maharashtra State, Mumbai ? The facts : The relevant facts giving rise to the aforesaid substantial question of law can be stated in brief as under : The applicant is a manufacturer of bio-fertilizer equipment. The applicant has submitted the sale bills No. Mh/9798/001 dated March 15, 1998 and MH/9798/001/A dated 15th March, 1998 to the Commissioner of Sales Tax for determination of tax rate under section 52 of the BST Act. The applicant has claimed that the impugned sale is a sale of agricultural machinery and parts and hence exigible to tax at four per cent covered by entry 1, Part I of Schedule C. It was contended that the machinery equipment and parts were designed to manufacture organic manure from and out of agricultural waste. The power of a tractor engine is required to be used to get the desired result. The agriculturist is not required to provide any other power. He is able to manufacture and produce manure for his land using this machine. It was thus contended that the said machine described as "compost turner enviro 700", is a mechanical harrow driven by tractor PTO. The machine converts agricultural, horticultural, solid and liquid wastes into basic energy bio-fertilizer as such it is an agricultural machine. The learned Commissioner of Sales Tax after referring to the relevant Schedule entry 1 of Part I of Schedule C and the entry 135, Part II of Schedule C has held that the impugned product is a species of machinery and is not specified in any other entry as such covered in Schedule entry 135, Part II of Schedule C exigible to tax at 13 per cent. In this context, he has observed that the machinery produces manure, which is used in agricultural operations. However, such allied use by itself does not invest it with the character of an agricultural equipment. He has further observed that the equipment manufacturing fertilizers is normally used by sugar factories. He has further observed that if the contention of the appellant is accepted then all the equipments/raw materials which in turn can be used in agricultural operations will come in the ambit of agricultural machinery. According to him, even in common parlance the product is not recognized as an agricultural machinery because it is not associated with agricultural operations, but is viewed as a piece of general machinery and therefore, the product can more appropriately be classified under the Schedule entry 135, Part II of Schedule C. Being dissatisfied with the determination order passed by the Commissioner of Sales Tax, the applicant filed an appeal before the Tribunal, being Appeal No. 28 of 2000 which was decided on December 6, 2003. The question raised before the Tribunal was : whether the impugned machinery falls in the Schedule entry 1, Part I Schedule C or entry 135, Part II of Schedule C. The Tribunal examined the sales invoices submitted by the applicant before the Commissioner of Sales Tax, and came to the conclusion that the aforesaid product would fall in Schedule entry 135, Part II of Schedule C observing that if an article is sold as belonging to one specific category, then it must be treated as a sale falling in that category even though it answers the description of another category. The Tribunal, thus, came to the conclusion that the impugned machine was not an agricultural machine/implement, hence not covered by entry 1, Part I, Schedule C but covered by the Schedule entry 135, Part II of Schedule C attracting sales tax at 13 per cent. The applicant - assessee not satisfied with the order of the Tribunal applied for reference under section 61(1) of the BST Act, with a request to refer the question of law extracted in the opening part of this judgment for authoritative adjudication, which revolves around entries (1) 1, Part I Schedule C and (2) 135, Part II of Schedule C of the BST Act. The said entries read as under : --------------------------------------------------------------------------------------- Schedule (1) Agricultural machinery and implements other than Four entry CI-1 tractors, trailers, semi trailers, oil engine, electric per motors, pumps, electric pumping sets, capacitors of all cent. types and pipes of all types and implements specified in entry 1 of Schedule A. --------------------------------------------------------------------------------------- (2) Components, parts and accessories of agricultural machinery and implements covered by sub-entry (1) above. --------------------------------------------------------------------------------------- Schedule Machinery operated by electricity or any other power, and 13 per entry CII-135 components, parts and accessories thereof but excluding cent. machinery and components, parts and accessories thereof specified in any other entry in this Schedule. --------------------------------------------------------------------------------------- Submissions : Mr. Surte, the learned counsel for the applicant, in support of his submissions contended that the Tribunal failed to take cognizance of the affidavit dated October 3, 2003 filed by the partner of the firm in which he had stated that "Shrigonda Sahakari Sakhar Karkhana Ltd., District Ahmednagar" owns around 175 acres of agricultural land and that the machine supplied to them was being used by them in their agricultural land for agricultural operations. The spent and sugarcane mud waste (press mud) derived from crushing of sugarcane is mixed with soil by using the machine for making compost/manure, which is again mixed with the land soil. It was further stated in the affidavit that the machine sold could only be used on an agricultural land and that it had no other use. The purpose of the machine was to improve the agricultural soil and simultaneously, recycle agricultural waste, including spent wash. Mr. Surte, further argued that the Tribunal has failed to appreciate the submissions made by the applicant (the original appellant) during the course of hearing of the appeal on September 3, 2003, which were subsequently reduced to writing and filed before the Tribunal. It was submitted that the machine was basically an aerotiller. The meanings of the expressions "tiller" and "filling" were explained in detail, which has a nexus with agricultural operations. It was further explained that the machine ensures quick composting and recycling of waste. A copy of booklet was also furnished to the Tribunal along with copies of sales invoices in which the description of machinery sold is shown as, "aerotilliery IBF ENVIRO 700 SD mechanical harrow pull type PTO driven diffused aeration system with auto spray and mechanical spraying header, pump, engine". Per contra : Mr. A copy of booklet was also furnished to the Tribunal along with copies of sales invoices in which the description of machinery sold is shown as, "aerotilliery IBF ENVIRO 700 SD mechanical harrow pull type PTO driven diffused aeration system with auto spray and mechanical spraying header, pump, engine". Per contra : Mr. Sonpal, the learned counsel appearing on behalf of the Revenue, submits that the description of the machine given by the applicant (original appellant) in the invoice and his application is "bio-fertilizer producing machine". These machines are sold to the sugar factories and not to the agriculturist directly. The tender notice issued by the Shrigonda Sahakari Sakhar Karkhana Ltd., clearly specifies the "suppliers for composting technology" and the description of the machine is "mixing-cum-humanization machine in carrying out surface aerobic composting using press mud along with the other material". He pleaded that the purchaser was interested in purchase of composting technology and not soil treatment machine. Mr. Sonpal, therefore, contended that the learned Commissioner was correct in holding that the impugned machinery is not an agricultural machinery but a machinery falling under the Schedule entry 135, Part II of Schedule C liable to sales tax at 13 per cent. Consideration : Having heard the rival views, the submission made by Mr. Sonpal, the learned counsel appearing for the Revenue needs acceptance. The machine known as bio-fertilizer producing machine can hardly be said to be machine meant for agricultural machinery or implement. It is, no doubt, true that the said machine can be used for agricultural purposes but that by itself cannot be a criteria for deciding as to whether or not it is an agricultural machine. The said bio-fertilizer is, normally, sold to the sugar factories and not to agriculturists directly. If one turns to Schedule entry 1, Part I of Schedule C it reads as under : ----------------------------------------------------------------------------- Entry CI-1 Agricultural machinery and implements other than tractors, trailers, semitrailers, oil engines, electric motors, pumps, electric pumping sets, capacitors of all types & pipes of all type and implements specified in entry 1 of Schedule A. ----------------------------------------------------------------------------- A reading of the above entry makes it clear that tractors, trailers, semitrailers are excluded from the purview of the agricultural machine and implements. If that be so, then one thing is clear that the tractor, trailer, etc., are directly used in agricultural operations. If that be so, then one thing is clear that the tractor, trailer, etc., are directly used in agricultural operations. If these types of machineries are excluded from the purview of the Schedule entry 1, Part I of Schedule C then the bio-fertilizer producing machine by no stretch of imagination can be said to be a machine falling under Schedule entry 1, Part I of Schedule C. The Tribunal has rightly observed that the purchaser was interested in purchase of composting machine and not soil treatment machine as now claimed by the applicant - assessee. What is sold is composting machine. It is, thus, nothing but a machine falling under the Schedule entry 135, Part II Schedule C attracting 13 per cent sales tax. The view taken by the Tribunal cannot be faulted. In the result, the question referred is answered in favour of the Revenue and against the assessee.