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1. Heard Shri A.C. Tripathi, learned Standing Counsel for the revenue and Shri Nishant Mishra, learned counsel for the assessee.

2. Present revision (carrying a delay of 129 days) has been filed against the order dated 20.07.2018 passed by Commercial Tax Tribunal, Saharanpur Bench, Saharanpur, in Second Appeal No. 201 of 2016 for A.Y. 2008-09 (U.P.) under the provisions of U.P. Value Added Tax Act, 2008 (hereinafter referred to as the Act) whereby the Tribunal has found that commodity 'toffee' sold by the assessee was covered under the Entry No. 137 Schedule II Part A. It has accordingly subjected it to tax @ 4% as against the claim of the revenue that the said commodity was taxable as an unclassified commodity @ 12.5%.

3. Having heard learned counsel for the parties and having perused the record, it transpires, the Tribunal has specifically found, the assessee had purchased 'toffee' from M/s Perfetti Van Melle India Pvt. Ltd., G.T. Road, Ghaziabad. Then, as to the sugar content, relying on an order passed by the Commissioner of Commercial Tax, under Section 59 of the Act, it was held - any commodity having sugar content more than 70% would qualify as a sugar product under Entry No. 137 Schedule II Part A of the Act. That decision of the Commissioner has also been referred to by the State in its affidavit filed in another revision being Sales/Trade Tax Revision Defective No. 99 of 2016 (The Commissioner, Commercial Tax, Lucknow Vs. S/S I.T.C. Limited, S.P. Marg, Saharanpur), listed together with the present case.

4. In that background, learned counsel for the assessee is quite right in his submission that the issue is no longer res-integra, inasmuch as, the revenue authorities accepted as final, the decision made by the Tribunal acknowledging 'toffees' manufactured by M/s Perfetti Van Melle India Pvt. Ltd., having sugar content more than 70%, to be covered under Entry No. 137 Schedule II Part A of the Act.

5. In that regard, it may be noted, earlier, another distributor -M/s United Traders had approached this Court in Commercial Tax Revision No. 830 of 2010 (M/s United Traders 34/78, Block-4, Govind Nagar, Kanpur through its Authorized Signatory. Vs. Commissioner of Commercial Taxes, U.P. Lucknow). That revision was disposed of with the following observations:

11. In that fact background as noted above, it is difficult to accept this conduct of the State to now challenge the rate of tax on 'toffee' in the case of the present dealer, who is an agent of the manufacturer - M/s Perfetti Van Melle India Pvt. Ltd. The commodity being the same and the assessee being not the manufacture, a different view may never arise - one for the manufacturer and the other for the trader.

12. Adjudication having been made once and the revenue with open eyes having not pressed the issue of taxability of 'toffees' beyond the level of Tribunal, though it carried the remaining dispute arising from the same order up to the Supreme Court, it cannot be permitted to adopt dual standards while dealing with the case of a trader. One commodity may be taxed at one rate, at the same point in time. Revenue has no discretion in the matter.