Judgment :- 1. The Revenue is the petitioner in all the three tax revision cases. In TRC. No. 105 and 106 of 1979, M/s. Carborandum Universal Ltd., Edappally who are dealers in Synthetic Abrasive Grains etc., is the assessee. T. R.C. No. 105 of 1979 relates to the assessment year 1970-71, and T.R.0 No. 106 of 1979 relates to the assessment year 1971-72. The assessee was assessed to sales-tax under the Kerala General Sales Tax Act 1963 on a net taxable turnover of Rs. 60,83931 for the year 1970-71 and Rs. 60,156.15 for the year 1971-72. In making the assessment the Assessing Authority has included in the taxable turnover of the assessee the turnover relating to sales of discarded materials such as gunnies, old drums, polythene bags, bottles, tins, etc. amounting to Rs. 50,904.50 for the year 1970-71 and Rs. 40,856.15 for the year 1971-72. In appeal, the Appellate Assistant Commissioner has directed the deletion of these amounts from the net taxable turnover for the periods in question holding that the assessee is not a dealer in respect of these articles viz. old gunnies, old drums, polythene bags, bottles, tins etc. This order of the Appellate Assistant Commissioner is confirmed by the Kerala Sales-tax Appellate Tribunal, Trivandrum in Tribunal Appeal Nos. 331 and 332 of 1976. 2. In T.R.C. No. 180 of 1979 M/s. Travancore Rayons Ltd., Perumbavoor, is the assessee and the period of assessment in question is the assessment year 1970-71. The Assessing Authority determined the total taxable turnover of the assessee at Rs 12,03,134.02. This included a sum of Rs. 15,870/-representing the sales turnover of scraps sold by the assesses to their employees. In appeal, the Appellate Authority directed deletion of this amount from the taxable turnover of the Assessee and this order of the Appellate Assistant Commissioner is confirmed by the Kerala Sales-Tax Appellate Tribunal, Trivandrum in Tribunal Appeal No. 50/1977. 3. The only question raised by the learned Counsel for the Revenue in these three tax revision cases is that the sales turnover of scrap materials such as old gunnies, old drums, polythene bags, bottles, tins etc. was liable to be included in the total taxable turnover of the assessees in these cases. 3. The only question raised by the learned Counsel for the Revenue in these three tax revision cases is that the sales turnover of scrap materials such as old gunnies, old drums, polythene bags, bottles, tins etc. was liable to be included in the total taxable turnover of the assessees in these cases. The assessment relates to the period prior to 1-7-1974 with effect from which date the definition of "business" in sub-section (vi) of S.2 of the Kerala General Sales-tax Act, 1963 was amended by Act 22 of 1974. Prior to the amendment the expression 'business' was defined in sub-section (vi) of S.2 as follows. (vi) "business" includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture, with or without profit motive in such trade, commerce, manufacture, adventure or concern." Clause (b) is added to the definition by the Amendment Act 22 of 1974 and by such addition any transaction in connection with, or incidental or ancillary to, the main business of the Assessee is also included in the definition of the expression 'business' as per the amendment effected on 1-7-1974. There is no substantial difference in the main part of the definition, which is incorporated as clause (a) of the amended definition of 'business' in S.2 clause (vi) except to clarify that motive to make profit or gain or the accrual of profit is immaterial. Since the assessments in the present cases relate to the periods prior to the amendment the question has to be decided with reference to the legal position that existed prior to the amendment of the expression 'business', by the Kerala Act 22 of 1974. Since the assessments in the present cases relate to the periods prior to the amendment the question has to be decided with reference to the legal position that existed prior to the amendment of the expression 'business', by the Kerala Act 22 of 1974. S. 2 (viii) of the Act defines "dealer" and the relevant portion of the definition is as follows: "dealer" means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes (a) x x x x (b) a casual trader;" "Casual trader" is defined in clause (vii) of S.2 as follows: "Casual trader" means a person who has, whether as principal, agent or in any other capacity, occasional transactions of a business nature involving the buying, selling, supply or distribution of goods in the State, whether for cash or for deferred payment, or for commission, remuneration, or other valuable consideration." From this definition it is clear that even a casual trader is a person having occasional transactions of a business nature and a dealer means a person who carries on the business of buying, selling, supplying or distributing goods, etc. The meaning of the expression 'business' is therefore of considerable importance in considering the question whether the assessee is a dealer in respect of scrap and discarded materials sold during the relevant period and brought to its accounts. 5. The question has been considered by two decisions of the Supreme Court and also by a few decisions of this Court. In State of Gujarat v. Raipur Manufacturing Co. Ltd. (19 STC. 1) the question arose whether a company which was carrying on the business of manufacturing and selling cotton textiles was liable to sales tax in respect of the turnover relating to sales effected of several items of discarded or unserviceable goods and waste products from the factory. After considering the decided cases on this aspect, the Supreme Court at page 7 of its judgment stated: "It is clear from these cases that to attribute an intention to carry on business of selling goods it is not sufficient that the assessee was carrying on business in some commodity and be disposes of for a price articles discarded, surplus, or unserviceable. It was urged however, on behalf of the State that where a dealer with a view to reduce the cost of production disposed of unserviceable articles used in the manufacture of goods and credits the price received in his accounts, he must be deemed to have a profit-motive for it would be uneconomical for the business to store unserviceable articles and to survive as an economic unit. But the question is of intention to carry on business of selling any particular class of goods. Undoubtedly from the frequency, volume, continuity and regularity of transactions carried on with a profit-motive, an inference that it was intended to carry on business in the commodity may arise. But it does not arise merely because the price received by sale of discarded goods enters the accounts of the trader and may on an over all view enhance his total profit, or indirectly, reduce the cost of production of goods in the business of selling in which he is engaged. An attempt to realise price by sale of surplus unserviceable or discarded goods does not necessarily lead to an inference that business is intended to be carried on in those goods, and the fact that unserviceable goods are sold and not stored so that badly needed space is available for the business of the assessee also does not lead to the inference that business is intended to be carried on in selling those goods". Referring to the decision of our High Court in Gosry Diary, Vyttila v. The State of Kerala (12 STC. 683), the Supreme Court observed: "We are not concerned to decide in this case whether the ultimate decision of the Court was correct, but we are unable to agree with the view expressed by the High Court that "as regards sales-tax all the sales of a dealer in the course of his business attract taxation". 683), the Supreme Court observed: "We are not concerned to decide in this case whether the ultimate decision of the Court was correct, but we are unable to agree with the view expressed by the High Court that "as regards sales-tax all the sales of a dealer in the course of his business attract taxation". Merely because a person is carrying on business of selling a commodity, it cannot be inferred from sale by him of another commodity in the course of that business that he is carrying on business in that other commodity also." Again at page 9, the Supreme Court has held as follows: "The goods sold broadly fall, as already observed, under three heads, viz., old discarded machinery, stores and scrap and miscellaneous goods; coal; and by products and subsidiary products such as "kolsi" and waste caustic liquor, though not usable by the factory, are goods regularly and continuously produced in its manufacturing processes. We are unable to hold that in disposing of miscellaneous old and discarded items such as stores, machinery, iron scrap, cans, boxes, cotton ropes, rags etc. the. company was carrying on business of selling those items of goods. These sales were frequent and the volume was large, but it cannot be presumed that when the goods were acquired there was an intention to carry on the business in those discarded materials; nor are the discarded goods, by-products or subsidiary products of or arising in the course of the manufacturing process. They are either fixed assets of the Company or are goods which are incidental to the acquisition or use of stores or commodities consumed in the factory. Those goods are sold by the Company for a price which goes into the profit and loss account of the business and may indirectly be said to reduce the cost of production of the principal item, but on that account disposal of these goods cannot be said to become part of or an incident of the main business of selling textiles. In order that receipts from sale of a commodity may be included in the taxable turnover, it must be established that the assessee was carrying on business in that particular commodity, and to prove that fact it must be established that the assessee had an intention to carry on business in that commodity." 6. In order that receipts from sale of a commodity may be included in the taxable turnover, it must be established that the assessee was carrying on business in that particular commodity, and to prove that fact it must be established that the assessee had an intention to carry on business in that commodity." 6. It is thus clear that a person carrying on business in one commodity if incidentally sells unserviceable or discarded materials he cannot be said to be carrying on "business" in the sale of such discarded and unserviceable articles within the meaning of the expression in the Sales-tax Act. The same principle was restated by the Supreme Court in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. & Another (31 STC. 426). The question in that case related to whether the sale proceeds of advertisement materials and scrap and canteen sales are liable to be included in the taxable turnover of the Assessee viz , the Burmah Shell Oil Storage and Distributing Company of India Ltd., as per the Madras General Sales-tax Act. The question related to two periods: one prior to 31st August 1964 and the second related to the period after 1st September 1964. The definition of the expression 'business' in the Madras General Sales-tax Act after its amendment in 1964 contained a clause similar to clause (b) of S 2(vi) of the Kerala Act introduced by its amendment by Act 22 of 1974. The expression "business" was defined in the Madras Act prior to its amendment in 1964 in similar terms as the definition contained in the Kerala Act prior to its amendment in 1974. After extracting the relevant definitions in the Act, prior to and after the amendment, the Supreme Court at page 429 stated thus: "In so far as the business turnover for the first part of the assessable year 1964-65 is concerned, it is not denied that the Act of 1959 prior to its amendment in 1964 is applicable. The contention that the 1964 amendment has retrospective operation was negatived in State of Tamil Nadu v. Thirumagal Mills Ltd., (29 STC. 290 SC.) but before this judgment was rendered the Sales-tax Tribunal bad held that that part of the assessment is also covered by the 1954 amendment. The contention that the 1964 amendment has retrospective operation was negatived in State of Tamil Nadu v. Thirumagal Mills Ltd., (29 STC. 290 SC.) but before this judgment was rendered the Sales-tax Tribunal bad held that that part of the assessment is also covered by the 1954 amendment. But the learned Advocate for the appellant none the less submits that even under the 1959 Act before its amendment the transaction which are incidental or ancillary to trade or commerce whether or not profit has been made, are liable to tax. This contention was clearly negatived in State of Gujarat v. Raipur Manufacturing Co. Ltd. (19 STC. 1 (SC ). In this case which was under the Bombay Sales-tax Act, 1953, where the definition of a dealer under S.2(6) is in pari materia with S.2(g) the disposal by a company carrying on the business of manufacturing and selling cotton textiles of its miscellaneous old and discarded items such as cans, boxes, cotton ropes, rags, etc., was held by this Court not to be carrying on the business of selling these items of goods. It is further stated that from the fact that the sales of these items were frequent and their volume was large, it cannot be presumed that when the goods were acquired there was an intention to carry on the business in those discarded materials nor are the discarded goods by-products or subsidiary products, of or arising in the course of manufacturing process'. After quoting a passage from pages 7-8 of the judgment in 19 STC. I, the Supreme Court in 31 STC 426 held: 'The contention on behalf of the State in respect of the first part of the turnover for 1964-65 therefore fails." 7. In Deputy Commissioner of Agricultural Income-Tax and Sales-tax (Law), Ernakulam v. Tirumbadi Rubber Co. Ltd. (36 STC. 492) the question arose whether the turnover pertaining to fallen rubber trees, twigs, empty barrels, scrap and so forth were liable to be included in the total taxable turnover of the assessee. After referring to the decision of the Supreme Court in 31 STC. 426 and 19 STC. Ltd. (36 STC. 492) the question arose whether the turnover pertaining to fallen rubber trees, twigs, empty barrels, scrap and so forth were liable to be included in the total taxable turnover of the assessee. After referring to the decision of the Supreme Court in 31 STC. 426 and 19 STC. I, this Court held that the sales of fallen rubber trees, twigs and empty barrels did not fall within the scope of the expression 'business', as defined in the Kerala Act It was further pointed out that even under the definition of a 'casual trader', he must be a person having occasional transactions of a business nature and so long as the sates of discarded and waste articles do not form part of the business of the assessee the turnover in respect of such sales are not liable to be included in the taxable turnover for the purpose of assessment. The decision or this Court in Deputy Commissioner of Agricultural Income-tax and Sales-tax v. Kottamullai Tea Co. Ltd. (T.R.C. Nos. 64 and 65 of 1971) reported in 36 STC. 499) was considered in Para.7 of the judgment in 36 STC. 492 and this Court observed as follows: "In the decision of this Court it has been assumed that the sales of the nature with which we are concerned in these cases will be casual transactions of a business nature. There has however been no discussion of the matter. The Supreme Court seems to have taken the opposite view that they will not be transactions of a business nature. In determining what are the transactions of a business nature though those transactions are only occasional transactions, the definition of the term "business" will also come into play and this will drag in the words "adventure in the nature of trade or commerce" contained in the definition of the term "business". Then such questions as whether a single transaction would be a business transaction or whether the transaction was the sale of a capital asset or was a business transaction would arise for consideration. Then such questions as whether a single transaction would be a business transaction or whether the transaction was the sale of a capital asset or was a business transaction would arise for consideration. When a person engages in the business of growing rubber trees with the view to draw latex from those rubber trees it may be possible to take the view that the sale of rubber trees which fall down in course of time due to age and decay or both or due to other reasons like storm or other upheavals of nature is carrying on an adventure in the nature of trade and that such sales may form a part of the business transactions of the assessee though they were only of a casual nature not having the frequency or the periodicity of the business transactions and even if there was no profit-motive. But this is an aspect which the Supreme Court has to consider as we feel bound by the decision in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. (31 STC 426 SC.)" It is thus clear that the decision reported in 36 S. T. C. 499 is held as not correctly decided, in view of the decision of the Supreme Court in 31 S. T C. 426. The Revenue is therefore not entitled to rely on the decision in 36 S. T. C. 499 which is contrary to the decision of the Supreme Court in 31 S. T. C. 426. That decision of the Supreme Court is not even referred to in the case reported in 36 S. T. C. 499. 8. The Revenue next relied upon the decision in Deputy Commissioner of Agrl. Income-lax & Sales-tax v. Balakrishna Pillai(36 S. T. C. 487), where the assessee, a leading Cashew Trader, had during the course of the assessment year sold empty gunnies and the question was whether the sales turnover of such discarded materials should be included in the total taxable turnover of the assessee. This Court after referring to some of its earlier decisions and also the decision of the Supreme Court in 19-STC. This Court after referring to some of its earlier decisions and also the decision of the Supreme Court in 19-STC. 1, in Para.8 of the judgment stated as follows: "The discussion in the decisions cited above would indicate that if the sales turnover of a particular dealer is to be included for the purposes of assessment, he should be held to be carrying on business in that particular commodity and that isolated transactions of commodities with which he did not deal should not be included in the turnover liable to assessment. The observations in those decisions lose much of the weight in the light of the definition of a 'dealer" including the casual trader also, who according to the definition, is a person either as principal or agent or in any other capacity has occasional transactions of a business nature involving buying, selling, supply or distribution of goods in the State, whether for cash or for deferred payment or for commission, remuneration or other valuable consideration. It cannot be said that the assessee in this case who deals in cashew-nuts cannot be brought within the ambit of a casual trader occurring in S.2 (vii) of the Act. On this ground, the decision of Tribunal has to be set aside." While rendering this decision, no reference at all has been made to the pronouncement of the Supreme Court in 31 STC. 426 which was apparently not brought to the notice of the Division Bench. The impact of the said decision of the Supreme Court has been considered in detail in the subsequent Division Bench ruling of this Court reported in 36 STC. 492. It is worthy of note that the judgment in this later case (36 STC. 492) is by Govindan Nair C. J. who was a member of the Division Bench which decided the case reported in 36 STC. 487. In the light of this later pronouncement by the Division Bench which in our respectful opinion correctly lays down the law governing the matter no reliance can be placed on the earlier ruling reported in 36 STC. 487. A casual trader by definition itself should have occasional transactions of a business nature involving the buying, selling, supply or distribution of goods in the State. What would constitute a transaction of business nature should be decided with reference to the expression "business" defined in S.2(vi) of the Act. 487. A casual trader by definition itself should have occasional transactions of a business nature involving the buying, selling, supply or distribution of goods in the State. What would constitute a transaction of business nature should be decided with reference to the expression "business" defined in S.2(vi) of the Act. The definition as it stood prior to its amendment in 1974, is almost on terms identical to the definition of the expression in the Madras Act prior to its amendment in 1964, considered by the Supreme Court in its decision in 31 S.T.C. 426 quoted above wherein it was held that the sale of discarded articles, empty gunnies etc. do not fall within the expression 'business'. Judged in the light of the principles and tests laid down in the aforecited rulings it is clear that the assessees before us are not dealers in respect of the articles forming the subject-matter of the disputed turnover and the sale proceeds of such articles cannot be included in the taxable turnover of the assessee's. They are not dealers nor even casual traders in respect of those articles as the transactions could not be said to be of a business nature in the light of the definition of the expression "business" contained in the Act at the relevant time. 9. In the light of the foregoing discussion the conclusion that emerges is that the sale proceeds of scraps, empty gunny bags etc. cannot be included in the total taxable turnover of the assessee for the periods in question. The decision of the Appellate Assistant Commissioner of Agricultural Income-tax and Sales-tax and that of the Appellate Tribunal are correct in law, and do not call for interference by this Court The tax revision cases are accordingly dismissed. We make no order as to costs. Dismissed. Immediately after pronouncement of the judgment the learned Government Pleader appearing on behalf of the revision petitioners made an oral prayer under Art.134-A of the Constitution for the grant of certificates under Art.133 (1) to enable the State to carry these matters in appeal before the Supreme Court. The said matter was adjourned for consideration to this day. After hearing both sides, we are of opinion that since appeals are already pending in the Supreme Court against the decision of this Court reported in Depy. Commr. of Agrl. Income-tax and Sales-tax (Law), Ernakulam v. Tirumbadi Rubber Co. Ltd., (36 STC. The said matter was adjourned for consideration to this day. After hearing both sides, we are of opinion that since appeals are already pending in the Supreme Court against the decision of this Court reported in Depy. Commr. of Agrl. Income-tax and Sales-tax (Law), Ernakulam v. Tirumbadi Rubber Co. Ltd., (36 STC. 492) Civil Appeals Nos. 1325 to 1334 of 1976 which we have followed in our judgment which is now sought to be appealed against, the prayer of the State for the issuance of certificates under Art.133 (1) of the Constitution should be granted. We accordingly direct that certificates may issue to the revision petitioners under Art.133 (1) of the Constitution. Leave granted.