Judgment : (J.P. Devadhar, J.) 1. This appeal was admitted on 18th February, 2011 on the following question of law:- “Whether the Maharashtra Sales Tax Tribunal was right in holding that the nonprescription sunglasses are medical devices as per Government Notification dated 23/11/2005 and are exigible to tax at 4% under Schedule Entry C-107(8)? 2. The respondent-assessee is a registered dealer under the Maharashtra Value Added Tax Act, 2002 ('2002 Act' for short). The assessee deals in spectacle glasses, spectacles and spectacle frames, etc. The assessee was paying tax at 4% on sale of spectacles including sunglasses under the schedule entry C-107(8) read with Notification dated 23rd November, 2005. As the sales tax authorities claimed that the sunglasses / goggles are classifiable under the residuary entry E-1 and hence the tax is payable at 12.5%, the assessee made an application on 23rd July, 2008 seeking determination of disputed question (DDQ) viz. Whether, protective sunglasses are taxable at 4% under the head 'Medical Devices & Implants' under Entry 107(8) of Schedule 'C' read with notification dated 23rd November, 2005 or the tax is leviable at 12.5% under residuary entry E-1 of the schedule to the 2002 Act? 3. The Notification dated 23rd November, 2005 reads thus:- “(A) Notification : Medical Devices and Implants Schedule Entry C-0107(8) No.VAT-1505/CR-233/Taxation-1, 23rd November, 2005 In exercise of the powers conferred by sub-entry (8) of Entry 107 of schedule 'C' appended to the Maharashtra Value Added Tax Act, 2002 (MahIX of 2005), the Government of Maharashtra hereby, with effect from 1st November, 2005, notifies the following goods, more particularly described in the Schedule appended hereto, to be the Medical Devices and Implants for the purposes of the said entry, namely: SCHEDULE Medical Device and Implants covered from time to time under headings or sub-headings or as the case may be, of Tariff items of Central Excise Tariff Act, 1985 (5 of 1986) 2 Sr.No. 1 -Heading No. 0 9001 40 Sub-heading No. 0 -Tariff Item No. 9001 30 00 Spectacle lenses of glass Name of the commodity Contact Lenses 3 - - 9001 50 00 Spectacle lenses of other material 4 9003 - - Frames and mountings for spectacles and parts thereof 5 9004 - - Spectacles, Correctives, Protective or other 4. By an order dated 29th August, 2009 the Commissioner of Sales Tax Department determined the disputed question by holding that though the sunglasses are covered under the said notification dated 23rd November, 2005, it would be absurd to say that the sunglasses are medical devices and accordingly held that the non prescription sunglasses would be covered under the residuary entry E-1 of the 2002 Act thereby attracting tax at 12.5%. In the other words, according to the Commissioner, ordinary sunglasses sold without any prescription cannot be said to be medical device, even though covered under the notification dated 23rd November, 2005. The Commissioner of Sales Tax, however, held that in view of the fact that the Joint Commissioner of Sales Tax (HQ-1) had issued a clarification on 31st January, 2006 to the effect that sunglasses would be covered under the heading “Medical Device and Implants”, the decision of the Commissioner holding that the non prescriptive sunglasses are covered under Entry E-1 would be enforceable prospectively from the date of DDQ order dated 29th August, 2009. 5. Challenging the aforesaid order, the assessee filed an appeal before the Maharashtra Sales Tax Tribunal and the Tribunal by the impugned order dated 24th September, 2010 held that once the Commissioner of Sales Tax came to the conclusion that the goggles in question are covered by the Notification, then, as a natural corollary they would be covered by the corresponding entry, unless there is anything contrary to it in the statute itself. Accordingly, the Tribunal held that non prescriptive sunglasses being covered under the Notification dated 23rd November, 2005 would be exigible to tax at 4% under schedule entry Schedule Entry C-107(8) of the 2002 Act. Challenging the aforesaid order, the present appeal is filed by the revenue. 6. The basic argument advanced by counsel for the revenue is that, under the Central Excise Tariff, Chapter Heading 9004 deals with spectacles as also goggles and while incorporating the provisions of the central excise tariff in the notification of 23rd November, 2005, the State government has deliberately not included the goggles within the notification and, therefore, sunglasses / goggles would be outside the purview of the Notification dated 23rd November, 2005 and consequently liable to tax at 12.5% under the residuary entry E-1. 7. We see no merit in the above contention. 7. We see no merit in the above contention. As per item 5 of the notification dated 23rd November, 2005 corrective spectacles as also protective spectacles are liable to be considered as medical device. It is not the requirement of the notification that the protective spectacles such as protective sunglasses can be considered as medical device only if it is sold under a prescription. 8. In the present case, the Commissioner himself has admitted in his order that the protective sunglasses would be covered under the notification, however, according to the Commissioner, it would be absurd to say that sunglasses are medical devices. 9. If the Legislature in its wisdom has included the sunglasses within the category of “Medical Devices and Implants” covered under entry C-107(8) by issuing a notification on 23rd November, 2005, it would not be open to the Commissioner of Sales Tax to hold that non prescriptive sunglasses are not medical devices and hence not covered under the notification dated 23rd November, 2005. In other words, in common parlance protective sunglasses may not be considered as a medical device, but if the legislature for the purpose of entry C-107(8) considers protective sunglasses to be medical device, it would not be open to the Commissioner to hold to the contrary. Similarly, the fact that under the central excise tariff, the spectacles and goggles are separately classified under different sub-headings would not be of much relevance once it is accepted that the protective sunglasses are covered under the notification dated 23rd November, 2005. 10. It is worth noting that after the impugned judgment of the Maharashtra Sales Tax Tribunal in the case of the assessee, notification dated 23rd November, 2005 has been amended with effect from 1st May, 2011 by notification dated 27th April, 2011 by substituting the words 'corrective spectacles' in place of the words 'spectacles', correctives, protective or other'. Thus, protective spectacles like protective sunglasses are outside the purview of entry C-107(8) with effect from 1st May, 2011. Therefore, in the facts of the present case, the decision of the Tribunal that the items in question viz. protective sunglasses covered under notification dated 23rd November, 2005 are liable to be treated as medical device up to the date of its amendment on 27th April, 2011, cannot be faulted. 11. Therefore, in the facts of the present case, the decision of the Tribunal that the items in question viz. protective sunglasses covered under notification dated 23rd November, 2005 are liable to be treated as medical device up to the date of its amendment on 27th April, 2011, cannot be faulted. 11. In the result, the question raised in the appeal is answered in favour of the assessee and against the revenue. 12. The appeal is disposed of in the above terms with no order as to costs.