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12. Questioning the validity and/or legality of the said notice, a Writ Petition was filed before the High Court of Jharkhad at Ranchi, which by reason of the impugned judgment has been dismissed, holding that BOC has no locus standi to file writ petition as admittedly tax was payable by TISCO; being authorized to purchase at the concessional rate of three per cent and not at the rate of two per cent and, thus, the demand made by the respondent was unassailable, the selling dealer being bound by the certificate granted to it under Section 13(1)(b) of the Act. It was also held that whether oxygen gas is a raw material or not cannot be decided/determined in writ application filed by BOC as TISCO alone is competent to explain to the prescribed authority as to how, which had all along treated and mentioned as goods as per Annexure `B', could be treated as raw material. In view of the order of this Court in the case of Tata Iron & Steel Co. Ltd. vs. State of Jharkhand & ors. [(2005) 4 SCC 272], the writ petition was also held to be not maintainable as TISCO cannot take a different stand to the effect that oxygen gas was used by it as a raw material.

It was furthermore held:

"As per the registration certificate issued under Section 13(1)(b) of the Act, Oxygen Gas was treated as goods as mentioned in Annexure - B. Endorsing the same, the purchasing dealer has been paying the tax at the concessional rate of 3% for a long number of years treating Oxygen Gas as goods. The selling dealer is bound by the said certificate. Accordingly, he has been collecting sales tax @ 3% from the beginning till 2000 and thereafter he started collecting sales tax @ 2% treating the same as raw material. Neither the purchasing dealer, nor the selling dealer can decide the nature of the goods on their own, unless the certificate is modified by the prescribed authority to that effect, treating Oxygen Gas as raw material, on being approached by purchasing dealer. The purchasing dealer has to pay sales tax @ 3% treating Oxygen Gas as goods mentioned in Annexure - B and the selling dealer has to merely collect and deposit the same as per the certificate with the Government. Unless it is established before the prescribed authority, which, in turn, will decide the nature of the goods, the purchasing dealer cannot claim payment of sales tax at the concessional rate of 2% treating Oxygen Gas as raw material under the garb of the two notifications dated 9.9.1983 and 3.2.1986. Therefore, demand notices are perfectly justified."

22. Mr. B.B. Singh, however, rightly pointed out that the question as to whether the oxygen gas is a raw material or not had not been raised before the Assessing Authority. For the first time, before this Court, a question of fact has been raised. We cannot, for arriving at such a finding as to whether the same is correct or not, rely on Wikipedia alone, on which reliance has been placed.

{See Commissioner of Customs, Bangalore vs. ACER India (P) Ltd. [(2008) 1 SCC 382] and Ponds India Limited vs. Commissioner of Trade Tax, Lucknow [(2008) 8 SCC 369]}

26. We may, however, notice that this Court in Share Medical Care vs. Union of India & ors. [(2007) 4 SCC 573] has opined as under:

"15. From the above decisions, it is clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage."

27. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeals are allowed. The demand made on the appellant is also set aside. The question, as to whether the oxygen gas is a raw material for the manufacture of steel or not may be determined by the Assessing Authority on the basis of the material(s), which may be brought on record by the parties. All contentions raised by the parties on the said question shall remain open. The Assessing Authority is hereby directed to give an opportunity to the parties to adduce evidence in this behalf. All other consequential proceedings may follow on the basis of the determination on the said question.