JUDGMENT A. R. TIWARI, J. - At the instance of the applicant-assessee, the Tribunal (Board of Revenue) has stated the case and referred the undernoted question of law under section 44(1) of the M.P. General Sales Tax Act, 1958, for our opinion in connection with the order passed by the Tribunal on August 16, 1989, in Appeal No. 106-PBR/87 : "Whether on the facts and in the circumstances of the case, the Board of Revenue was justified in holding that the levy of purchase tax on the purchases of building material purchased for construction and repairs of the staff huts and quarters was in order ?" 2. Briefly stated, the facts of the case are that the applicant-Corporation was assessed to sales tax under the M.P. General Sales Tax Act, 1958 (for short, "the Act") for the financial year 1981-82 by the assessment order dated October 31, 1985. The applicant deals in extraction and sale of minerals. It purchased explosives worth Rs 81,978 from unregistered dealers and used the same in extraction of minerals. The purchase price was subjected to purchase tax. The assessee also purchased explosives worth Rs. 2,13,658 from registered dealers after paying full tax. For this, the applicant was allowed set-off under section 8(1) of the Act. The assessing officer found that the applicant used the explosives as raw material. The applicant also purchased materials worth Rs. 19,300 for repairs and maintenance of hutment and staff quarters. The purchase price was subjected to purchase tax under section 7 of the Act. Copy of the order in Assessment Case No. 27/82 is at annexure B. The assessee filed the First Appeal No. 105/86 which was rejected on January 7, 1987 (annexure C). The assessee then filed second appeal. In this appeal, the non-applicant filed an application for enhancement of tax on the ground that the explosives are not specified as raw materials in the registration certificate and as such, the applicant was not entitled to get set off. The applicant had applied for amendment is the registration certificate on March 18, 1986. The Tribunal allowed the appeal in part. The order levying purchase tax on budding material was sustained by the Tribunal. Aggrieved, the applicant filed application under section 44(1) of the Act, which was registered as 1-PBR/90. On this application, the Tribunal stated the case and referred the question of law as stated above. 3. The Tribunal allowed the appeal in part. The order levying purchase tax on budding material was sustained by the Tribunal. Aggrieved, the applicant filed application under section 44(1) of the Act, which was registered as 1-PBR/90. On this application, the Tribunal stated the case and referred the question of law as stated above. 3. None appeared for the assessee. Shri Piyush Mathur, learned Deputy Government Advocate appeared for the non-applicant-department. 4. Normally we would have dismissed this reference application in default of appearance of the assessee, but as we find that the question as proposed and projected stands answered by the decision of this Court reported in [1990] 76 STC 475; (1989) 9 CTJ 586 (Perfect Pottery Co. Ltd. v. Commissioner of Sales Tax), we have elected to consider the reference and answer the same. 5. The first question in the aforesaid case was as extracted below. "Whether on the facts and in the circumstances of the case, the Board of Revenue was justified in holding that the levy of purchase tax on the purchase of building materials purchased for repairs, renewal and maintenance of building was in order ?" 6. The same question is proposed in this reference as noted above. 7. In the aforesaid decision, the question was answered as under : "Accordingly, our answer to question No. (i) is that the Tribunal was not justified in holding that the levy of purchase tax on the purchase of building materials purchased for repairs, renewal and maintenance of buildings was in order." 8. As regards the question of construction, it was held that the activity of construction is a condition precedent not only for starting business of manufacture or its expansion but also for continuance of business of manufacture and such activity of construction cannot be said to be the business of the assessee so as to make him liable to pay the tax on purchase of building material used in such building activity. This Court, then held that no purchase tax was leviable. 9. In view of the aforesaid position, we find that the point stands concluded by the aforesaid decision. Nothing substantial is urged to persuade us to take a different view in the matter. 10. Ex consequenti, we answer the question in the negative, i.e., in favour of the assessee and against the department. 11. 9. In view of the aforesaid position, we find that the point stands concluded by the aforesaid decision. Nothing substantial is urged to persuade us to take a different view in the matter. 10. Ex consequenti, we answer the question in the negative, i.e., in favour of the assessee and against the department. 11. This reference application is, thus, decided in terms indicated above, but without any orders as to costs. 12. A copy of this order shall be forwarded to the Tribunal for further action, as may be necessary. Reference answered in the negative.