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TMI Blog2003 (2) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... laria, AIDS, including pulse polio and different immunization programmes, mother and child reproductive programme and other Government programmes at the cost of the Government of India. The GMSD procures medicines and hospital equipment and distributes those items to different Central Government departments. The entire cost is borne by the Government of India from its budgetary fund. GMSD is an expenditure department for rendering social service to the nation accordingly operates the expenditure head of accounts and does not receive anything for which "NO" Receipts, Head of Accounts are operated vide Statements of Accounts issued by the Pay and Accounts Office, Government of India. The GMSD purchases stores on behalf of the other Indenting Department of the Government of India and settlements are made in accordance with article 115 of the Constitution of India. The petitioner never supplies medicine/equipment to any business organisation. The petitioner supplies and distributes to the indentors like: LIST OF REGULAR INDENTORS 1.. Post and Telegraph 2. Central Government Health Scheme. 3. Border Security Force 4. Central Industrial Security Force 5. Central Reserve Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., 4 Q.E. March 31, 2000. Learned counsel relied upon the definition of "dealer" in section 2(b) of the CST Act, 1956 to contend that the petitioner is a dealer within the meaning of the said section 2(b). 10.. Next, Ms. Roy relying upon the definition of "sale" in section 2(g) of the CST Act contended that the transactions constitute sales exigible to tax under the Central Act. It was further submitted that the petitioner has in the present proceedings challenged the assessment order for the period 4 Q.E. March 31, 1996 and assessment order of 4 Q.E. March 31, 2000. Only demand notices have been placed before the court and not the assessment orders for these respective periods. There is statutory forum provided under the Act for questioning the assessments and, therefore, the petitioner ought to have availed of the said remedy before invoking the jurisdiction of this Court under article 226, it was urged. 11.. As regards the contention relating to article 285(1) of the Constitution it is contended by Ms. Roy, relying upon the judgment of the Supreme Court, that the tax in the case on hand is levied with reference to the transaction of sale. In other words, it is the taxable ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drew attention to a judgment of the Supreme Court in the case of State of Punjab v. Union of India reported in [1990] 79 STC 437 which has taken the view that the Union of India as the owner of the Northern Railway Departmental Catering was the owner of the goods which were sold and sale of such goods was immune from taxation under the State law in view of the Constitutional immunity from the taxation contained in article 285(1) of the Constitution. 17.. I am respectfully of the view that the majority view of the Supreme Court in reference under article 143(1) being a judgment of a larger Bench requires to be followed. The same is binding on all courts other than Supreme Court even though it is given under advisory jurisdiction. Suffice it here to extract a relevant passage from the judgment of the Supreme Court In re: Special Courts Bill, 1978, AIR 1979 SC 478 at 519. It was held as under: "We are inclined to the view that though it is always open to this Court to re-examine the question already decided by it and to overrule, if necessary, the view earlier taken by it, in so far as all other courts in the territory of India are concerned they ought to be bound by the view expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of persons which carries on such business; (ii) a factor, broker, commission agent, del credere agent, or any other mercantile agent, by whatever name called, and whether of the same description as hereinbefore mentioned or not, who carries on the business of buying, selling, supplying or distributing goods, belonging to any principal whether disclosed or not; and (iii) an auctioneer who carries on the business of selling or auctioning goods belonging to any principal, whether disclosed or not and whether the offer of the intending purchaser is accepted by him or by the principal or a nominee of the principal. Explanation 1.-Every person who acts as an agent, in any State, of a dealer residing outside that State and buys, sells, supplies or distributes, goods in the State or acts on behalf of such dealer as- (i) a mercantile agent as defined in the Sale of Goods Act, 1930 (3 of 1930), or (ii) an agent for handling of goods or documents of title relating to goods, or (iii) an agent for the collection or the payment of the sale price of goods or as a guarantor for such collection or payment, and every local branch or office in a State of a firm registered outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of revenue by way of tax and penalty, that it was proposed to amend the M.P. Sales Tax Act suitably in the light of the said judgments in order to safeguard the revenue of the State and to validate the imposition of penalty and that amongst the amendments which were being made was that the definition of 'dealer' was proposed to be amended in the light of the judgment in the case of Orient Paper Mills Ltd. v. State of Madhya Pradesh [1971] 28 STC 532 (MP) so as 'to include the Central Government or a State Government selling goods not during the course of business'. In this context, it is pertinent to note that for a person to be a dealer within the meaning of clause (d), he must be one who carries on the business of buying, selling, supplying or distributing goods and the definition as originally enacted included within its scope the Central Government or a State Government or any of their departments which carried on such business. This definition was retrospectively amended by the 1971 Act, and the reference to the 'Central Government or a State Government or any of their departments' in sub-clause (i) of clause (d) was omitted from that sub-clause and Explanation II was added w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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