CAMA HOTELS LTD Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) AT the instance of the assessee, following question of law has been referred to us by the Gujarat Sales Tax Tribunal arising out of its order dated December 27, 1995 : " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the applicant is not entitled to any refund under rule 42 of the Gujarat Sales Tax Rules, 1970 to the extent of tax paid by it on the purchases of goods made by the applicant which it has used in the preparation of food served by the applicant to its customers during the four financial years ending March 31, 1979, March 31, 1980, March 31, 1981 and March 31, 1982 ?"

(2.) ONE statement of case has been submitted in respect of four reference applications for four different assessment periods, viz. , for the years 1978-79, 1979-80, 1980-81 and 1981-82 relating to claim of the assessee to drawback, set-off and/or refund of tax paid by him on purchase of certain goods which according to him have been used by him in the manufacture of taxable goods, and about which he is entitled to claim relief under rule 42 of the Gujarat Sales Tax Rules, 1970.

(3.) BY enacting Constitution (Forty-sixth Amendment) Act, 1982 which was brought into effect with effect from February 2, 1983, article 366 of the Constitution, which enacts definitions of various terms used in the Constitution was amended and a new clause (29a) was inserted, phrase defining "tax on sales or purchase of goods". Sub clause (29a) (1) (f) which is relevant for our-purpose read : " (29a) 'tax on the sale or purchase of goods' includes - (a) to (e ). . . . . . . . . . (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. "