JUDGMENT N. K. JAIN, J. - This special appeal along with the special appeals mentioned in the Schedule "A" are directed against a common order of the learned single Judge dated July 22, 1991, whereby while allowing the writ petitions, the learned single Judge quashed the impugned assessment orders levying the sales tax on the sale of eatables in the hotel/restaurants. 2. For convenient disposal of these appeals, the facts of D.B. Special Appeal (Writ) No. 346 of 1991 are taken into consideration. 3. Brief facts of the case are that the petitioner-respondent is running a business of restaurant in the name of M/s. Raj Mango Bar. The petitioner's case is that he serves juice of fruits, ice-creams, biscuits and other cold/hot drinks to the customers visiting his restaurant for consumption within the restaurant premises and the customers are not allowed to take away the eatables and drinks served to them. The Commissioner, Commercial Taxes, Rajasthan, Jaipur, issued a circular dated September 7, 1983 (annexure 1) directing all its officers to levy and collect taxes from all the hoteliers and restaurateurs treating the service or supplies made by them of the eatables and drinks to their customers as sales after the commencement of the Constitution (Forty-sixth Amendment) Act, 1982. Respondent No. 2 in the said circular referred to a decision of the Supreme Court in Northern India Caterers' case [1980] 45 STC 212 and also had drawn the attention of its officers towards section 4 of the Amendment Act by which a new clause (29A) in article 366 of the constitution of India defining the term "sale" has been inserted and stated that in view of the amendment in the Constitution the definition of "sale" in section 2(o) of the Rajasthan Sales Tax Act, 1954, now includes the transactions of service or supply of food articles or drinks by the hoteliers or restaurateurs to their customers. The Assistant Commercial Taxes Officer, Ward-I, Sriganganagar, respondent No. 3, had proceeded to levy and collect tax from the petitioner in pursuance of the said circular annexure 1 on the service charges collected by the petitioner from the customers within the restaurant during the accounting years 1982-83 and 1983-84 framing separate assessment orders dated August 2, 1986 (annexures 2 and 3). Vide annexure 2 dated August 2, 1986, for the year 1982-83 tax of Rs. 1,250 was levied and imposed penalty of Rs. Vide annexure 2 dated August 2, 1986, for the year 1982-83 tax of Rs. 1,250 was levied and imposed penalty of Rs. 110 under section 7AA of the Act for late filing of the IV quarter return, and under section 16(1)(n) imposed penalty of Rs. 100 for not appearing in office on July 24, 1986, along with interest amounting to Rs. 741 under section 11B of the Act. Likewise vide annexure 4 tax was levied to the tune of Rs. 11,750 with interest amounting to Rs. 4,975 under section 11B and imposed penalty of Rs. 3,230 under section 7AA of the Act. The petitioner-respondent was served with demand notices annexures 4 and 5. Vide annexure 4 a demand of Rs. 2,201 was raised for the year 1982-83 and a demand of Rs. 19,955 was raised in respect of the year 1983-84. The petitioner-respondent was directed to deposit the said amount within fifteen days. The petitioner-respondent preferred a writ petition under article 226 of the Constitution contending that since the State Legislature has not yet chosen to amend the definition of "sale" given in the Rajasthan Sales Tax Act, 1954 or to provide any appropriate provision under the said State Act, the Commissioner, Commercial Taxes, Rajasthan, just by an executive order cannot levy and collect and sales tax which is only the privilege of the State Legislature and therefore, the assessment orders annexures 2 and 3 and demand notices annexures 4 and 5 may be quashed. 4. The respondents in their reply raised preliminary objection that alternate remedy available to the petitioner has not been availed and being a matter of taxing statute, the writ petition may be dismissed as not maintainable. The respondents further stated that in view of the amendment made in the Rajasthan Sales Tax Act, 1954, which are in pari materia with the provisions of the Constitution (Forty-sixth Amendment) Act, 1982, the objections raised by the petitioner against the assessment orders no longer survive and the petition has became infructuous. 5. The petitioner-respondent filed rejoinder stating that the definition of "sale" has not been substituted from February 2, 1983 and when there was no definition of "sale" in the year 1983, it cannot be said that this clause (o) has been inserted retrospectively. 6. 5. The petitioner-respondent filed rejoinder stating that the definition of "sale" has not been substituted from February 2, 1983 and when there was no definition of "sale" in the year 1983, it cannot be said that this clause (o) has been inserted retrospectively. 6. The learned single Judge after considering material on record allowed the writ petition and quashed assessment orders in terms of earlier single Bench decision of this Court rendered in Rambagh Hotels Pvt. Ltd. v. Commercial Taxes Officer [1990] 78 STC 35 wherein it has been held that the Constitution (Forty-sixth Amendment) Act merely validates earlier laws levying tax on supply of food and drink and it does not authorise levy in future without amendment to State Act. It has been further observed that tax was leviable under new provisions only from date they were introduced, not from date of constitutional amendment. In that case the learned single Judge remanded the matter to the assessing authority to enquire whether sales tax was collected or not by the petitioner from its customer. If it had, the petitioner was not entitled to refund, but if the petitioner had paid the tax without recovering it from its customers, it would be entitled to refund. 7. Mr. Mehta, learned counsel appearing on behalf of the non-petitioner-appellants, has urged that the learned single Judge has erred in not reconsidering Rambagh Hotels Pvt. Ltd.'s case [1990] 78 STC 35 (Raj), which is not a correct law since while giving the said judgment, the learned single Judge has not taken into consideration the relevant provisions of the Rajasthan Sales Tax Act as they existed prior to April 1, 1987. It has been urged that the decision of the Supreme Court rendered on review application filed in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980] 45 STC 212 and even the learned single Judge has not considered a Division Bench decision of this Court rendered in Govind Ram v. State [Reported as Om Prakash v. State of Rajasthan [1982] 50 STC 269 (Raj).] 1982 WLN 1 to which honourable Mr. Justice M. B. Sharma (as he then was) was also a party. He has referred to various provisions of law including clause (29A) to article 366 of the Constitution, sections 3, 2(o), 2(t) and 2(f) of the Rajasthan Sales Tax Act. Mr. Justice M. B. Sharma (as he then was) was also a party. He has referred to various provisions of law including clause (29A) to article 366 of the Constitution, sections 3, 2(o), 2(t) and 2(f) of the Rajasthan Sales Tax Act. Mr. Mehta has also contended that after the foundation of the judgments in Associated Hotels [1972] 29 STC 474 (SC) and Northern India Caterers' case [1978] 42 STC 386 (SC) was knocked out the relevant provisions of State laws always deemed to include within the ambit, a tax on the supply by way of or as part of any service, etc., of goods being food or any other articles for human consumption. He has prayed that the impugned order of learned single Judge may be set aside and the matter may be decided in terms of the decision of their Lordships of the Supreme Court rendered in Northern India Caterers' (India) Ltd. case [1980] 45 STC 212. 8. Mr. Kothari, learned counsel for the petitioner-respondent, has reiterated the submissions made before the learned single Judge. 9. We have heard learned counsel for the parties and perused the material on record as well as the case law cited at Bar and the relevant provisions of law. 10. The 46th Amendment Act came into force with effect from February 3, 1983 and by the said Act of 1982 a clause (29A) to article 366 was introduced, which reads as under :- "(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." 11. Section 2(t), 2(o) and 2(f) which are also relevant read as under : "2(t). Section 2(t), 2(o) and 2(f) which are also relevant read as under : "2(t). 'turnover' means the aggregate of the amount of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of the sale or supply of goods in the carrying out of any contract. Explanation. - Subject to such conditions and restrictions, if any, as may be prescribed in this behalf - (i) ........... (ii) the amount for which goods are sold or supplied shall include any sum charged for anything done by the dealer in respect of the goods sold at the time of or before the delivery thereof." "2(f) '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." 12. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980] 45 STC 212 while dismissing the review petition, the apex Court has held as under : "......... Indeed, we have no hesitation in saying that where food is supplied in an eating-house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly, be exigible to sales tax. In every case it will be for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax law and to determine upon those facts whether a sale of the food supplied is intended." 13. In Padmaja Commercial Corporation v. Commercial Tax Officer No. 1, Vijayawada [1987] 66 STC 26 (AP) their Lordships while considering the power of State Legislature to impose tax have held that the Parliament by Forty-sixth Amendment to the Constitution inserted clause (29A) in article 366 thereof, with effect from February 2, 1983, under which the definition of "sale" was enlarged, thereby making materials used in the execution of indivisible works contract, hire-purchase and lease transactions, exigible to the levy of sales tax. Suitable amendments to the definitions of "dealer", "sale" and "turnover" were made in the Andhra Pradesh General Sales Tax Act. Suitable amendments to the definitions of "dealer", "sale" and "turnover" were made in the Andhra Pradesh General Sales Tax Act. It has also been held that "Parliament may enact the law under article 286(3)(b) either before or after the concerned law is made by the State Legislature. It is not obligatory upon the Parliament to make the law, and it cannot be postulated that the State Legislature does not get competence if Parliament refrains from making any law. There is absolutely no fetter upon the competence of the State Legislature save the restrictions that may be imposed at any time". 14. In Sri Prabhudayal Agrawalla v. Orissa Sales Tax Tribunal [1993] 88 STC 473 (Orissa) [FB] it has been observed that in both the original and review judgments in Northern India Caterers (India) Ltd.'s case [1978] 42 STC 386 and [1980] 45 STC 212, the Supreme Court in unambiguous terms had observed that where sale of food happened to be the dominant object in the case of eating-house or restaurant, the transaction would be undoubtedly exigible to sales tax. This declaration of law made by the apex Court must be deemed to be the legal position in existence all through. Therefore, the assessee whose dominant object while supplying food articles was sale of the food-stuffs, service being incidental, was all through liable to pay sales tax. 15. In Sri Krishna Vilas Tourist Hotel v. State of Karnataka [1991] 80 STC 253 (Ker) the question arose for consideration was whether the assessments, taxing the turnovers relating to the sale of food and drink by the petitioner-restaurant owners for the periods prior to September 7, 1978, are valid in law ? A contention was raised by the State that any levy and collection of tax from restaurants and eating-house on supply of food and drink prior to September 7, 1978, does not suffer from any illegality, viz., there was no law to levy tax on the sale of food and drinks during the said period. A contention was raised by the State that any levy and collection of tax from restaurants and eating-house on supply of food and drink prior to September 7, 1978, does not suffer from any illegality, viz., there was no law to levy tax on the sale of food and drinks during the said period. After considering various decisions including the decisions rendered in Durga Bhavan v. Deputy Commercial Tax Officer [1981] 47 STC 104 (AP), Hotel Dwaraka v. Union of India [1985] 58 STC 241 (AP), Amba Bhavani v. Government of Andhra Pradesh [1986] 63 STC 40 (AP) and Ashoka Hotel and Restaurant v. Additional Superintendent, Commercial Taxes [1988] 69 STC 371 (Pat) the learned single Judge repelled the contention that there was no authority to levy tax on sale of food or drink before the Constitution (Forty-sixth Amendment) Act. 16. In Commissioner of Sales Tax v. Northern Railway Catering Department, U.P. [1994] 95 STC 569 (SC); JT 1994 (5) SC 73, the Commissioner's application for review was dismissed by the High Court as not maintainable. Their Lordships of the Supreme Court remanded the case to the concerning Sales Tax Officer to decide the matter afresh according to law in terms of the order dated December 21, 1979, passed by the apex Court in Northern India Caterers' case [1980] 45 STC 212. 17. After having gone through the relevant provisions of law and the decisions of Lordships of the Supreme Court, it is abundantly clear that the apex Court in unambiguous terms had observed that where sale of goods happened to be the document object in the case of an eating-house or a restaurant, the transaction would be undoubtedly exigible to sales tax. Prior to the judgment of the apex Court in review petition moved in Northern India Caterers (India) Ltd.'s case [1980] 45 STC 212 situation was quite different as in the original judgment rendered in Northern India Caterers (India) Ltd. case [1978] 42 STC 386 it was held that service of food articles and drinks to the visitors in the restaurant of the appellant was not a "sale" and consequently not exigible to sales tax. To overcome the effect of the judgments of the Supreme Court the Legislature in its wisdom introduced 46th Amendment Act, 1982, inserting a new clause (29A) in article 366 of the Constitution of India which resulted in widening of scope for the State Legislature to levy tax on certain transactions which are not sales as per the India Sale of Goods Act, 1930. The 46th Amendment Act, 1982, came into force with effect from February 3, 1983, by which the definition of "tax on sale or purchase of goods" did include the supply of food articles within the ambit of sale. Thus, the charging of sales tax was not leviable earlier but after pronouncement of their Lordships in review in Northern India Caterer's case [1980] 45 STC 212 (SC), which as observed by their Lordships was moved by the respondents as well as other States who were apprehensive that as a result of the observations made by the Supreme Court in the course of the judgment in the first Northern India Caterer's case [1978] 42 STC 386 the States would be deprived of the legitimate tax due to them levied and collected from the restaurant owners holding their transactions as sale of food and drinks, the situation is altogether different as now the burden was on the dealer. Though it has been argued before us by the counsel for the respondents on the strength of the decision of learned single Judge of this Court rendered in Rambagh Hotels Pvt. Ltd.'s case [1990] 78 STC 35 that Forty-sixth Amendment Act merely validates earlier laws levying tax on supply of food and drink and it does not authorise levy in future without amendment to State Act, we don't find any substance in view of the decision of their Lordships of the Supreme Court in said review order in Northern India Caterers (India) Ltd.'s case [1980] 45 STC 212 as the declaration of law made by the apex Court must be deemed to be the legal position in existence all through being law of the land. Admittedly all these matters relate to period prior to amendments made in the Rajasthan Sales Tax Act. Admittedly all these matters relate to period prior to amendments made in the Rajasthan Sales Tax Act. Therefore, they are all governed by the decision of the apex Court rendered in Northern India Caterers (India) Ltd.'s case [1980] 45 STC 212 and it is not necessary to go into the questions canvassed by the respondents particularly when no specific finding whether the dominant object of an eating-house or a restaurant, the transaction was exigible to sale tax or not. In view of this, the impugned order passed by the learned single Judge is set aside and all the matters are remanded back to the assessing authority to consider them afresh as to whether the supply of food or other articles, etc., for human consumption or any drink in given case is dominantly part of service or sale, keeping in view the review judgment passed in Northern India Caterers (India) Ltd.'s case [1980] 45 STC 212, the latest judgment of the Supreme Court in Commissioner of Sales Tax v. Northern Railway Catering Department, U.P. [1994] 95 STC 569; JT 1994 (5) SC 73 and Govind Ram v. State (Reported as Om Prakash v. State of Rajasthan [1982] 50 STC 269 (Raj)] 1982 WLN 1 . 18. Consequently, this special appeal and the similar 38 appeals mentioned in Schedule "A" stand disposed of with the above observations. The parties are directed to appear before concerned assessing authority on or before September 30, 1994 and thereafter he will decide the matter considering all the points raised by the parties in terms of the above observations as early as possible after giving the assessee and State reasonable opportunity. The Schedule "A" shall be made a part of the judgment. Appeal allowed. SCHEDULE 'A' 1. State v. Laxmandas (D.B. Special Appeal No. 347/91) 2. State v. Hotel Hilton (D.B. Special Appeal No. 374/91) 3. State v. Prakash Lodge (D.B. Special Appeal No. 412/91) 4. State v. Agarwal Bharat Hotel (D.B. Special Appeal No. 385/91) 5. State v. Manju & Co. (D.B. Special Appeal No. 571/93) 6. State v. Maharaja Sri Ummed Mills Ltd. (D.B. Special Appeal No. 276/93) 7. State v. Maharaja Sri Ummed Mills (D.B. Special Appeal No. 436/93) 8. State v. Agarwal Lodge (D.B. Special Appeal No. 221/94) 9. State v. Jai Hind Restaurant (D.B. Special Appeal No. 278/94) 10. State v. Lovely Sweet House (D.B. Special Appeal No. 334/94) 11. State v. Maharaja Sri Ummed Mills Ltd. (D.B. Special Appeal No. 276/93) 7. State v. Maharaja Sri Ummed Mills (D.B. Special Appeal No. 436/93) 8. State v. Agarwal Lodge (D.B. Special Appeal No. 221/94) 9. State v. Jai Hind Restaurant (D.B. Special Appeal No. 278/94) 10. State v. Lovely Sweet House (D.B. Special Appeal No. 334/94) 11. State v. Kalinga Restaurant (D.B. Special Appeal No. 335/94) 12. State v. Suresh Gover (D.B. Special Appeal No. 336/94) 13. State v. Jai Hind Restaurant (D.B. Special Appeal No. 337/94) 14. State v. Prakash Lodge (D.B. Special Appeal No. 338/94) 15. State v. Lovely Sweet House (D.B. Special Appeal No. 344/94) 16. State v. Samosa House (D.B. Special Appeal No. 348/94) 17. State v. Suraj Karan (D.B. Special Appeal No. 370/91) 18. State v. Narayan Niwas (D.B. Special Appeal No. 410/91) 19. State v. Agra Sweet Home (D.B. Special Appeal No. 411/91) 20. State v. Hotel Hilton (D.B. Special Appeal No. 413/91) 21. State v. Agra Sweet Home (D.B. Special Appeal No. 414/91) 22. State v. Lovely Sweet House (D.B. Special Appeal No. 419/91) 23. State v. Himmat Singh (D.B. Special Appeal No. 418/91) 24. State v. Hotel Hilton Pvt. Ltd. (D.B. Special Appeal No. 448/91) 25. State v. Agra Sweet Home (D.B. Special Appeal No. 535/92) 26. State v. Maharaja Sri Ummed Mills Ltd. (D.B. Spl. Appeal No. 437/93) 27. State v. Lovely Sweet House (D.B. Special Appeal No. 16/92) 28. State v. Samosa House (D.B. Special Appeal No. 567/93) 29. State v. Rameshwar Lodge (D.B. Special Appeal No. 568/93) 30. State v. Lovely Sweet House (D.B. Special Appeal No. 569/93) 31. State v. Sri Narayan Niwas-Palace (D.B. Special Appeal No. 570/93) 32. State v. Maharaja Ummed Mills (D.B. Special Appeal No. 607/93) 33. State v. Govind Hotel (D.B. Special Appeal No. 739/93) 34. State v. Bombay Boarding Lodge (D.B. Special Appeal No. 68/94) 35. State v. Milkh Raj (D.B. Special Appeal No. 117/94) 36. State v. Mahavir Lodge (D.B. Special Appeal No. 125/94) 37. State v. Rameshwar Lodge (D.B. Special Appeal No. 151/94) 38. State v. Mahavir Lodge (D.B. Special Appeal No. 343/94).