Honble JAIN, J. —This special appeal, along with the 38 special appeals mentioned in the schedule A are directed against a common order of the learned single Judge dated 22nd of July, 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. 346/91 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 petitioners case is that he serves juice of fruits, ice creams, buscuits 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 estables and drinks served to them. The Commissioner, Commercial Taxes, Rajasthan Jaipur issued a circular dt. 7.9.1993 (Anx.l) directing all its officers to levy and collect taxes from all the hoteliers and restauranteurs treating the service or supplies made by them of the eatables and drinks to their customers as sales after the commencement of the Constitution (46th) Amendment Act, 1982. Respondent No.2 in the said circular referred to a decision of the Supreme Court in Northern India Caterers case and also drawn attention of its officers towards Section 4 of the Amendment Act by which a new Clause 29(A) 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 (0) of the Rajasthan Sales Tax Act, 1954 now includes the transactions of service or supply of food articles or drinks by the hoteliers or restauranteurs to their customers. The Assistant Commercial Taxes officer, Ward-I, Srigan-ganagar, respondent no.3, had proceeded to levy and collect tax from the petitioner in pursuance of the said Circular Anx. 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 2nd of August, 1986 (Anx. 2 and 3). Vide Anx.2 dated 2.08.1986 for the year 1982-83 tax of Rs. 1250/. was levied and imposed penalty of Rs. 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 2nd of August, 1986 (Anx. 2 and 3). Vide Anx.2 dated 2.08.1986 for the year 1982-83 tax of Rs. 1250/. 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 24th of July, 1986 along with interest amounting to Rs. 741/- under Section 11B of the Act. Likewise vide Anx. 4 tax was levied to the tune of Rs.11,750/- with interest amounting to Rs. 4975/- under Section 11B and imposed penalty of Rs. 3230/- under Section 7AA of the Act. The petitioner-respondent was served with demand notices Ans. 4 and 5. Vide Annexure 4 a demand of Rs., 2201/- 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 the sales tax which is only the privilege of the State Legislature and therefore, the assessment orders Anx. 2 & 3 and demand notices Anx. 4 & 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 para materia with the provisions of Constitution 46th Amendment Act, 1982, the objections raised by the petitioner against the assessment orders no longer survive and the petition has become infructuous. (5). The respondents further stated that in view of the amendment made in the Rajasthan Sales Tax Act, 1954 which are para materia with the provisions of Constitution 46th Amendment Act, 1982, the objections raised by the petitioner against the assessment orders no longer survive and the petition has become infructuous. (5). The petitioner-respondent filed rejoinder stating that the definition of sale has not been substituted from 2.2.1983 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 Private Ltd. Vs. C.T.O. (1) wherein it has been held that the Constitution (forty-sixth Amendment) Act merely validates earlier law 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 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 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 Private Ltds. case (supra), 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 Rajasthan Sales Tax Act as they existed prior to 1.4.1987. It has been urged that the decision of the Supreme Court rendered on review application filed in Northern India Caters (India) Ltd. Vs. Lt. Governer of Delhi (2) and even the learned Single Judge has not considered a Division Bench decision of this Court rendered in Govind Ram Vs. State (3) to which Honble Mr. Justice M.B.Sharma (as he then was) was also a party. Lt. Governer of Delhi (2) and even the learned Single Judge has not considered a Division Bench decision of this Court rendered in Govind Ram Vs. State (3) to which Honble Mr. Justice M.B.Sharma (as he then was) was also a party. He has referred to various provisions of law including clause 29-A to Article 366 of the Constitution, Section 3, 2(0), 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 ( ) and Northern India Caterers case was knocked out by 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 Ltd. case (supra). (8). Mr. Kothari, learned counsel for the petitioner-respondent has reitered 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 w.e.f. 3.2.1983 and by the said Act of 1982 a Clause 29-A to Article 366 was introduced, which reads as under : — "29-A Taxes on the sale or purchase of goods including: — (a).............. (b)............. (c)............. (d)............. (e)............. (f) A tax on supply by way of or as part of any service or as in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxication), where such supply of 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 these goods by the person making the transfer, delivery or supply and a purchase of these 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) :- "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 by 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 tax 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. Vs. L.T. Governr of Delhi (supra) 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 if 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 the 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 Vs. C.T.O. No. I, Vijaywada (4) their lordships while considering the power of State Legislature to impose tax has held that the parliament by Forty- sixth Amendment to the Constitution inserted clause (29-A) in Article 366 thereof, with effect from 2.02.1983 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. 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. Suitable amendments to the definitions of dealer, sale and turnover were made in the Andhra Pradesh General Sales Tax. 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 also lutely no fetter upon the competence of the State Legislature save the restrictions that may be imposed at any time." (14). In Sri Prabhudayal Agarwalla Vs. Orissa Sales Tax (5) it has been observed that in both the original and review judgments in Northern India Caterers (India) Ltds case (supra), 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 both 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 Vs. State (6) 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 7.09.1978 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 7.09.1978, 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 Bhawan Vs. Deputy Commercial Tax Officer (7) APO, Hotel Dwarka Vs. Union of India (8), Amba Bhavani Vs. Government of Andhra Pradesh (9) and Ashoka Hotel and Restaurant Vs. Additional Superintendent Commercial Taxes (10) 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 Vs. Union of India (8), Amba Bhavani Vs. Government of Andhra Pradesh (9) and Ashoka Hotel and Restaurant Vs. Additional Superintendent Commercial Taxes (10) 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 Vs. M/s. Northern Railway Catering Department U.P. (11), the Commissioners 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 dt. 21.12.1979 passed by the Apex Court in M/s. Northern India Caterers case (supra). (17). After having gone through the relevant provisions of law and the decisions of their 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 dominant 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 Ltd.s case situation was quite different as in the original judgment rendered in M/s. Northern India Caterers (India) case (supra) 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 Legislative to levy tax on certain transactions which are not sales as per the Indian Sale of Goods Act, 1930. The 46th Amendment Act, 1982 came into force w.e.f. 3rd of January, 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. The 46th Amendment Act, 1982 came into force w.e.f. 3rd of January, 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 Cateres case 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 Caterrers case (supra), 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 (supra) 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 dont find any substance in view of the decision of their lordships of the Supreme Court in said review order in Northern India Caterers Pvt. Ltd.s case (supra) 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. Therefore, they are all governed by the decision of the Apex Court rendered in Northern India Caterers Pvt. Ltd.s case (supra) 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 sales tax or not. Therefore, they are all governed by the decision of the Apex Court rendered in Northern India Caterers Pvt. Ltd.s case (supra) 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 sales 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 Pvt. Ltd.s case (supra), the latest judgment of the Supreme Court in Commissioner of Sales Tax Vs. M/s. Northern Railway Catering Department, U.P. (supra), and Govind Ram Vs. State (supra). (16). 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 30th of Sept, 1994 and thereafter he will decide the matter after 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.