JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. The petitioner has challenged an order dated 30.03.2016 passed by the Assistant Commissioner of Commercial Tax in the following factual background. 2. Petitioner No. 1 is a company registered under the Companies Act. The petitioner is engaged in trading in prawn feed. The petitioner purchases such product from the vendors outside the State of Gujarat and sales it to aquatic farmers within the State. In the context of the Gujarat Sales Tax Act, 1969, the question arose whether such prawn feed would be covered within Entry No. 14 of Schedule-I to the Sales Tax Act concerning cattle feed. The petitioner approached the authorities under section 62 of the Sales Tax Act for determination of such a question. The case put-forth by the petitioner was that prawn would be included within the meaning of live stock since the aquatic farmers are engaged in systematic breeding of prawn for human consumption. The Deputy Sales Tax Commissioner passed an order dated 18.01.2001 and upheld the petitioner's contention. He concluded that the prawn feed, a commodity in which, the petitioner was dealing, would be included under Entry 14 of First Schedule to the Sales Tax Act and consequentially, would be exempt from payment of tax. This order was never challenged by the Sales Tax authorities and thus achieved finality. The assessments which followed this order, granted the benefit of exemption to the petitioner in respect of such commodity. Thus, year after year, the petitioner claimed and was granted exemption from payment of sales tax on its sale of prawn feed. 3. With effect from 01.04.2006, the Sales Tax Act was substituted by the Gujarat Value Added Tax Act, 2003 ('the VAT Act' for short). This Act also contained an exemption Entry-11 in the First Schedule referring to cattle feed. We may record that this exemption entry was worded identically as Entry-14 of Schedule-I to the Sales Tax Act. The VAT Act also contained section 80 for determination of disputed questions which was a successor provision of section 62 of the Sales Tax Act. This new provision however, has certain additional features, to which we would refer to at a later stage. The VAT Act also contained section 80 for determination of disputed questions which was a successor provision of section 62 of the Sales Tax Act. This new provision however, has certain additional features, to which we would refer to at a later stage. Even after introduction of the VAT Act, the authorities continued to grant exemption to the petitioner on the basis of the said determination order dated 18.06.2001 passed by the Deputy Commissioner under section 62 of the Sales Tax Act. 4. With effect from 31.03.2012, Entry-78 was added to the notification of exemption issued by the Government in the exercise of powers under section 5(2) of the VAT Act. This notification granted exemption to aquatic feed from whole of the tax payable from 31.03.2012. 5. On the basis of this development, the Assessing Officer carried a belief that prior to 31.03.2012 aquatic feed would fall under the residuary clause since after 31.03.2012, it is made specifically exempt from payment of tax by notification of exemption issued by the Government. For the assessment year 2011-12, therefore, after hearing the petitioner, he passed the impugned order dated 30.03.2016 and held that the product in question i.e. aquatic feed would invite VAT under the residuary clause. Since the petitioner had not paid the tax, he levied such tax with interest and penalty. He thus, raised the total demand of Rs. 16,65,34,540/- from the petitioner on this count. It is this order, the petitioner has challenged in the present petition. 6. Learned counsel Shri Uchit Sheth for the petitioner raised following contentions: I. The determination order passed by the Deputy Commissioner under section 62 of the Sales Tax Act was valid and effective even after introduction of the VAT Act. The Assistant Commissioner therefore could not have taken a view different from that expressed by the Deputy Commissioner in such order. The Assistant Commissioner was bound by the order of determination. II. The entries in the Sales Tax Act and the VAT Act concerning the cattle feed were identical. Consideration of the disputed question by the Deputy Commissioner under the Sales Tax Act would therefore continue to govern the dispute even after introduction of the VAT Act. III. Under section 80 of the VAT Act, though it is open for the Commissioner to take an order of determination under revision, the same cannot be applied with retrospective effect. IV. Consideration of the disputed question by the Deputy Commissioner under the Sales Tax Act would therefore continue to govern the dispute even after introduction of the VAT Act. III. Under section 80 of the VAT Act, though it is open for the Commissioner to take an order of determination under revision, the same cannot be applied with retrospective effect. IV. Even otherwise consideration by the Assessing Officer, is wholly erroneous. Merely because aquatic feed has been included in the exemption notification with effect from 31.03.2012 would not mean that prior to such date, the same was taxable under the residuary clause. In other words, the exemption notification cannot govern the classification of a product for its taxability. If a product otherwise does not fall within any of the taxable entries, merely because an exemption has been granted, would not mean; prior to the exemption it was taxable. 7. In support of his contentions, counsel has placed reliance on certain decisions, to which, we would refer to at a later stage. 8. Learned AGP, on the other hand, opposed the petition contending that against the order of assessment, a statutory appeal is available. This writ petition therefore, should not be entertained. The Assessing Officer has given cogent reasons. With effect from 31.03.2012, the entire issue has undergone a material change. The order of determination which was passed by the Deputy Commissioner under the Sales Tax Act, therefore would no longer govern the taxability of the product under the VAT Act. 9. In context of such facts we may refer to statutory provisions. Schedule-I to the Sales Tax Act contained goods, the sale or purchase of which is free from all taxes. Entry-14 thereof reads as under: 14. Cattle-feed including fodder, concentrates and cotton seed oil cakes [(but excluding cotton seeds, other oil cakes and de-oiled cakes)] 10. Section 62 of the Sales Tax Act pertained to determination of disputed questions and read as under: Section 62-Determination of Disputed Questions. Entry-14 thereof reads as under: 14. Cattle-feed including fodder, concentrates and cotton seed oil cakes [(but excluding cotton seeds, other oil cakes and de-oiled cakes)] 10. Section 62 of the Sales Tax Act pertained to determination of disputed questions and read as under: Section 62-Determination of Disputed Questions. (1) If any question arises, otherwise than in proceedings before a court, or proceedings under section 41 or 44, whether for the purposes of this Act (a) any person, society, club or association or any firm or any branch or department of any firm is a dealer, or (b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term, or (c) any transaction is a sale or specified sale or purchase, or (d) any particular dealer is required to be registered, or (e) any tax is payable in respect of any particular sale, specified sale or purchase or if tax is payable the rate thereof, the Commissioner shall make an order determining such question. (2) The Commissioner may direct that the determination shall not affect the liability of any person under this Act, as respects any sale, specified sale or purchase effected prior to the determination. (3) If any such question arises from any order already passed under this Act or any earlier law, no such question shall be entertained for determination under this section; but such question may be raised in appeal against, or by way of revision of such order. 11. The question whether the product prawn feed would be covered under Entry 14 of the First Schedule pertaining to cattle feed was determined by the Deputy Commissioner in exercise of powers under section 62 of the Sales Tax Act by the said order dated 18.01.2001. 12. The VAT Act also contains a similar Schedule-I pertaining to goods, the sale or purchase of which are exempt from tax. Entry 11 thereof which is equivalent to entry No. 14 of the First Schedule to the Sales Tax Act reads as under: 11. Cattle feed including fodder, grass, hay and straw and concentrates. (excluding cottonseeds, oil cakes and de-oiled cakes.) Thus, an identically worded entry continued to find place in the First Schedule in the VAT Act even after the Sales Tax Act was substituted. 13. Cattle feed including fodder, grass, hay and straw and concentrates. (excluding cottonseeds, oil cakes and de-oiled cakes.) Thus, an identically worded entry continued to find place in the First Schedule in the VAT Act even after the Sales Tax Act was substituted. 13. Section 80 of the VAT Act pertains to determination of disputed questions and reads as under: 80. Determination of disputed questions. (1) If any question arises, otherwise than in proceeding before a court, or proceedings under section 33, 34 or 35, whether for the purposes of this Act- (a) any person, society, club or association or any firm or any branch or department of any firm is a dealer, or (b) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that term, or (c) any transaction is a sale or purchase, or (d) any particular dealer is required to be registered, or (e) any tax is payable in respect of any particular sale or purchase or if tax is payable the rate thereof, or (f) any tax credit is admissible under section 11 or section 12, [the Commissioner, Special Commissioner, Additional Commissioner or Joint Commissioner] shall make an order determining such question. (2) [The Commissioner, Special Commissioner, Additional Commissioner or Joint Commissioner] may direct that the determination shall not affect the liability of any person under this Act, with respect to any sale or purchase effected prior to the determination. [(2A) The Commissioner on his own motion may call for and examine the record of any order passed by the Special Commissioner, Additional Commissioner or Joint Commissioner under sub-section (1) and pass such order thereon as he thinks just and proper within two years from the date of service of notice for revision of such order: Provided that the order passed by the Commissioner under this sub-section shall not affect the liability of any person under this Act, with respect to any sale or purchase effected prior to such order.] (3) any such question arises from any order already passed under this Act or under the earlier law, no such question shall be entertained for determination under this section; but such question may be raised in appeal against, or by way of revision of such order. 14. 14. From the above provisions, it can be seen that under section 62 of the Sales Tax Act, the authority had the power to decide a question regarding the taxability of a particular product or the rate of the tax. Under sub-section (2) of section 62, the authority had the power to provide that such determination shall not effect the liability of any person in respect to the period prior to such determination. Sub-section (3) of section 62 provided that if any question arises from any order already passed, under said Act or the earlier law, no such question shall be entertained for determination. 15. Similar provisions have been contained in section 80 of the VAT Act with certain additional features. Sub-section (1) of section 80 gives similar power to the competent authority to make a determination of disputed questions. Sub-section (2) of section 80 allows the authority to avoid retrospective effect of such determination. Sub-section (2A) of section 80 which is a new provision, permits the Commissioner on its own motion to call for and examine the record of any order passed by the Special Commissioner, Additional Commissioner, or Joint Commissioner under sub-section (1) and pass such order thereon as he thinks just and proper within two years from the date of service of notice from revision of such order. Proviso to sub-section (2A) provides that the order passed by the Commissioner under said sub-section shall not affect liability of any person under the Act with respect to any sale or purchase affected prior to such order. Thus, sub-section (2A) of section 80 while clothing the Commissioner with the revisional powers of an order of determination, it limits the effect of any such order prospectively. Under sub-section (3) of section 80, it is provided that any question which arises from any order already passed under this Act or under the earlier law, no such question shall be entertained for determination under this section, but such a question can be raised in appeal or by way of revision. 16. Under sub-section (3) of section 80 therefore, the order of determination passed by the Deputy Commissioner under section 62 of the Sales Tax Act would continue to hold the field. 16. Under sub-section (3) of section 80 therefore, the order of determination passed by the Deputy Commissioner under section 62 of the Sales Tax Act would continue to hold the field. When sub-section (3) of section 80 refers to any question from any order already passed under the Act or under the earlier law, it necessarily includes a reference to an order of determination passed by the competent authority under the erstwhile provisions of section 62 of the Sales Tax Act. In other words, under identical situation, under sub-section (1) of section 80 of the VAT Act, the authorities cannot reopen a question which is already decided by the competent authority while determining the disputed question under sub-section (1) of section 62. 17. In case of Nestle India Ltd. v. Deputy Commissioner of Commercial Tax & Others, reported in [2016] 89 VST 56 (Guj), Division Bench of this Court held that decision of higher forum as regards classification of goods having attained finality, the Assessing Officer was bound by such decision and cannot in absence of any change in circumstance, take a different view. 18. In case of Ponds India Limited (Merged with H.L. Ltd.) v. Commissioner of Trade Tax, Lucknow reported in [2008] 15 VST 256 (SC), the Supreme Court observed that if an entry has been interpreted consistently in a particular manner for several assessment years, ordinarily it would not be permissible for the Revenue to depart there from, unless there is a material change. 19. Thus, even after introduction of the VAT Act, the order passed by the Deputy Commissioner on 18.01.2001 continued to hold the field, insofar as the question of proper classification of the petitioner's commodity viz. prawn feed was concerned. 20. If that be so, the question that arises is whether the Assistant Commissioner could have given a different interpretation and reopened the classification. This question has two elements. First is of the binding nature of the order of determination and second is whether had there been any material change owing to which such question was thrown open for fresh consideration. 21. First aspect can be answered briefly. This question has two elements. First is of the binding nature of the order of determination and second is whether had there been any material change owing to which such question was thrown open for fresh consideration. 21. First aspect can be answered briefly. As pointed out by the learned counsel for the petitioner, this Court has in the judgment dated 13.10.2006, passed in Sales Tax Reference No. 2 of 2003 in case of State of Gujarat v. Mahavir Engineering & Electric stores held that the order of determination would bind the Department and observed as under: "7. Section 62 of Gujarat Sales Tax Act, 1969 relates to determination of disputed questions. For our purpose, Clause (e) of sub-section (1) of section 62 would be material which reads as under: "62. Determination of disputed questions- 1. If any question arises, otherwise than in proceedings before a court, or proceedings under section 41 or 44, whether for the purposes of this Act, any tax is payable in respect of any particular (sale, specified sale or purchase) or if tax is payable the rate thereof, the Commissioner shall make an order determining such question." Under the Act, the final authority to determine the dispute is conferred upon the Commissioner or any of his authorized representatives. Such an order would be binding between the parties and if any of the parties are aggrieved by the order, then it has to challenge the said order before the Appellate forum. Undisputedly, the above referred two orders still stare in the eyes of the Department. It is to be noted that the said orders have yet not been challenged by the Department before any Appellate forum. Under the circumstances, the orders would not only bind the applicant who made the Reference but would also bind the State Sales Tax Department which was a party before the Commissioner of Sales Tax. Under the circumstances, we must hold that the Tribunal was justified in holding that "tool-bits" would be taxable under Entry 3(ix) of Schedule II-A of the Act." 22. Likewise, in judgment dated 30.06.2005, passed in Sales Tax Reference No. 6 of 1994 in case of State of Gujarat v. Electro Porcelain Industries, the Court held and observed as under: "9. Under the circumstances, we must hold that the Tribunal was justified in holding that "tool-bits" would be taxable under Entry 3(ix) of Schedule II-A of the Act." 22. Likewise, in judgment dated 30.06.2005, passed in Sales Tax Reference No. 6 of 1994 in case of State of Gujarat v. Electro Porcelain Industries, the Court held and observed as under: "9. Section 62(1) of the Act clearly provides that if any question arises, otherwise than in proceedings before a Court, or proceedings under section 41 or 44, whether for the purpose of the Act any tax is payable in respect of particular sale or purchase or if tax is payable in respect of particular sale or purchase or if tax is payable, the rate thereof, the Commissioner shall make and order determining such question. At the cost of repetition we may state that in the instant case the Dy. Commissioner has already taken final decision u/s. 62 in 1981 in favour of the respondent. In spite of it, ignoring clear provision of Section 62(3) of the Act the Assistant Commissioner took the contrary view then the earlier view taken by the Deputy Commissioner of Sales-tax only on the ground that there was subsequent decision of the Tribunal and, therefore, he was bound by the decision of the Tribunal. 10. Bare reading of Section 62(3) of the Act makes it clear that if any question arises from any order already passed under the Act or any earlier law, no question shall be entertained for determination under this section, but such question may be raised in appeal against, or by way of revision of such order. Thus, there is clear mandate that once the decision becomes final, the same cannot be re-agitated. It can only be questioned either in Appeal or by way of Revision. In the instant case if the department was aggrieved then it could have filed Appeal u/s. 65(1) (c) before the learned Tribunal as the order was passed by the Dy. Commissioner against the department on 9.11.1981. Admittedly no such Appeal was filed u/s. 65(1) (c) of the Act before the Tribunal. Where Appeal lies u/s. 65 of the Act and no Appeal has been filed then no proceeding in revision u/s. 67 can be entertained upon an Application. Commissioner against the department on 9.11.1981. Admittedly no such Appeal was filed u/s. 65(1) (c) of the Act before the Tribunal. Where Appeal lies u/s. 65 of the Act and no Appeal has been filed then no proceeding in revision u/s. 67 can be entertained upon an Application. However, proviso to Section 67(2) of the Act provides that proceeding in revision may be entertained upon an application where the applicant satisfies the Commissioner that he had sufficient cause for not preferring the Appeal against the order in respect of which the revision Application was made. Admittedly, in this case no such revision application was filed. Under the circumstances, the scope of suo-motu revision u/s. 67(1) at the hands of the Assistant Commissioner was very narrow and limited. When finality is attached to the matter between the parties then final decision arrived at in favour of the assessee u/s. 62 of the Act cannot be reviewed on the ground that there was subsequent order of the Tribunal in which Tribunal had taken different view of the matter." 23. Thus, the Assessing Officer was bound by the order of determination passed by the Deputy Commissioner and could not have taken a different view unless of course, there had been any material change. In this context, the second element of the question arises viz. did introduction of the exemption entry with effect from 31.03.2012 make any material difference. We have noticed that with effect from 31.03.2012, the State Government exempted aquatic feed from all taxes. This by itself would not mean that the legislation indicated that prior to 31.03.2012 the product was taxable. This exemption notification is not in the nature of clarificatory amendment either clarifying or making any amendment with retrospective effect concerning the product in question. Had the legislature made any specific change either prospectively or with retrospective effect which would change the very fundamental question of taxability of the product, Assessing Officer would have been well within the power to consider such question independently ignoring the order of determination passed by the Deputy Commissioner. In the present case however, all that the legislature has done is to provide for a specific exemption for all aquatic products with effect from 31.03.2012. In the present case however, all that the legislature has done is to provide for a specific exemption for all aquatic products with effect from 31.03.2012. This exemption entry in no manner, amended any provisions of the First Schedule to the VAT Act, which continued to carry Entry 14 pertaining to the cattle feed, and thus whether before or after 31.03.2012, all cattle feed continued to fall within the list of goods, the sale or purchase of which are exempt from tax. The exemption entry pertaining to aquatic feed did not change this position. This change therefore, had no material effect on the order of determination passed by the Deputy Commissioner. We may recall, under such order, the Deputy Commissioner had held that the prawn feed would fall within the meaning of cattle feed for the purpose of entry 11 to the Schedule-I to the Sales Tax Act. The Assessing Officer, thus, proceeded entirely on the wrong premises and assumed jurisdiction not vested in it. It was bound by the order of determination passed by the Deputy Commissioner unless, by virtue of exemption notification, entire basis of such determination was rendered invalid. The legislature providing for exemption of such product from payment of tax does not necessarily and by itself imply that the product was otherwise exigible to tax. Question of relegating the petitioner to the alternative remedy therefore would not arise, when we find that the Assessing Officer has gone against an order of determination which was binding on him and when we find that his reasons for discarding such order of determination are wholly invalid. In other words, in our opinion, there was no material change in the relevant taxing entries insofar as the product in question is concerned. The Assessing Officer therefore, could not have ignored the order of determination. His order therefore was wholly without jurisdiction. 24. In the result, impugned order dated 30.03.2016 is set aside. Petition is allowed and disposed of.