JUDGMENT J. P. DEV ADHAR, J. :- At the instance of Commissioner of Sales Tax, Bombay, the Maharashtra Sales Tax Tribunal has referred the following questions for our opinion, under section 61(1) of the Bombay Sales Tax Act, 1959. (i) Whether on the facts and in the circumstances of the case, and on a true and correct interpretation of provisions of the Maharashtra Sales Tax on Transfer of Property in Goods Involved in the Execution of Works Contract (Re-enacted) Act, 1989, the tribunal was justified in holding that the processes of dyeing and printing of cloth do not fall within the ambit of purview of the said Act? (ii) Whether on the facts and in the circumstances of the case, and on a true and correct interpretation of provisions of the Maharashtra Sales Tax on Transfer of Property in Goods Involved in the Execution of Works Contract (Re-enacted) Act, 1989, the Tribunal was justified in law in holding that the activity in which the transfer of property in goods is too insignificant will not attract the provisions of the said Act? 2. Facts relevant for this reference, are, that the respondent is a Limited Company engaged in the business of dyeing, bleaching and printing of grey fabrics received from the customers. For the purpose of dyeing, bleaching and printing, the respondent uses materials such as colours, dyes and chemicals and these materials are converted into a solution and stored in a tank. Thereafter, the grey fabric is passed through the above solution several times, till the requisite coloured shade is obtained on the fabric as per the specifications of the customer. Thereafter, the dyed fabric is washed through a water solution to drain away the chemical solution remaining on the fabrics. On completion of the job-work, the dyed/printed fabrics with the requisite coloured shade are returned by the respondent to the respective customers. 3. Thereafter, the dyed fabric is washed through a water solution to drain away the chemical solution remaining on the fabrics. On completion of the job-work, the dyed/printed fabrics with the requisite coloured shade are returned by the respondent to the respective customers. 3. On 1st November, 1988, the respondent raised an issue before the Commissioner of Sales Tax, under section 52 of the Bombay Sales Tax Act, 1959 (hereinafter referred to as the "BST Act" for short), for determination, as to whether or not, the respondent who undertakes the job work of dyeing, printing and bleaching, is a dealer, within the meaning of section 2(1)(d) of the Maharashtra Sales Tax on the Transfer of Property in Gods Involved in the Execution of Works Contract (Re-enacted) Act, 1989 (hereinafter referred to as the "Works Contract Act" for short). It was the contention of the respondent that the colours, dyes and chemicals are consumed in the process of dyeing, printing and bleaching and, therefore, the property in those goods were neither transferred as goods nor in any other form and hence the provisions of the Works Contract Act are not attracted. 4. After hearing the parties, the Additional Commissioner of Sales Tax held that the process of dyeing and printing involves transfer of property in goods and, therefore, the respondent engaged in the business of dyeing and printing is a Dealer within the meaning of section 2(1)(d) of the Works Contract Act and is liable to pay the Tax. The Commissioner, however, held that in the process of bleaching, no transfer of property in goods is involved. 5. Being aggrieved by the aforesaid order passed under section 52 of the BST Act, read with section 9 of the Works Contract Act, (in so far as it pertains to dyeing and printing is concerned), the respondent filed an appeal before the Sales Tax Tribunal. After hearing the parties, the Tribunal held at para 18 of its judgment that though there was transfer of property in goods, the same being too insignificant to take any cognizance, the provisions of Works Contract Act are not attracted. After hearing the parties, the Tribunal held at para 18 of its judgment that though there was transfer of property in goods, the same being too insignificant to take any cognizance, the provisions of Works Contract Act are not attracted. In addition to the above, the Tribunal further held, that from the Contractual relations of the parties, it is evident that the Contractee is not interested in transfer of the materials used in dyeing a printing, either as goods or in any form and hence tax is not leviable on those materials. On a Reference Application filed by the Commissioner, the Tribunal has referred the aforesaid questions for the opinion of this Court. 6. Mr. Bharucha, learned Senior Counsel appearing on behalf of the applicant submitted that on a true and correct interpretation of the provisions of the Works Contract Act, it is evidence that in the process of dyeing a printing, there is transfer of property in goods within the meaning of section 2(1) of the Works Contract Act. That under the Works Contract Act, neither the intention of the parties to transfer the goods is relevant nor the quantity of the property in goods which passes is relevant. That once the property in goods either as goods or in any form passes, then, there is a deemed sale and the provisions of Works Contract Act are attracted. That in the present case the dispute is restricted to dyeing and printing only. That in the process of dyeing and printing, the chemical property of the colours, dyes and chemicals are transferred to the fabrics supplied by the customers in the form of coloured shade/print. According to Mr. Bharucha, the fact that the solution of colours, dyes and chemicals used in dyeing and printing, on completion of the process are thrown out is wholly irrelevant. Once the property of the colours, dyes and chemicals are passed on to the fabrics, then what is thrown out is only a waste. 7. Mr. According to Mr. Bharucha, the fact that the solution of colours, dyes and chemicals used in dyeing and printing, on completion of the process are thrown out is wholly irrelevant. Once the property of the colours, dyes and chemicals are passed on to the fabrics, then what is thrown out is only a waste. 7. Mr. Bharucha submitted that the coloured shade on the fabrics is due to the chemical reaction of dyes and chemicals and that, even if it is held that in the process of dyeing and printing, the dyes and chemicals have ceased to exist as goods, in view of their property passing on to the fabrics, there is deemed sale of the dyes, chemical and colours used in the process of dyeing and printing. That, having held that in the process of dyeing and printing there is transfer of property in goods, the Tribunal could not have held that the provisions of Works Contract Act are not attracted on the ground that the quantity of the property in goods that passes is too insignificant. That under the Works Contract Act, it is not relevant as to how much quantify of the property in goods passes but what is relevant is, passing of property in goods either as goods or in any other form. Once, a finding of fact is recorded that in dyeing and printing, the property of colours, dyes and chemicals passes, then the Works Contract Act squarely applies and it is not at all relevant to consider as to how much property in the goods passes. Mr. Bharucha submitted that how much tax is leviable or how to determine the taxable turnover is not an issue raised in this reference. 8. Relying upon the decision of the Apex Court in the case of Associated Cement Company Limited vs. Commissioner of Customs, reported in 124 STC 59 (SC). Mr. Mr. Bharucha submitted that how much tax is leviable or how to determine the taxable turnover is not an issue raised in this reference. 8. Relying upon the decision of the Apex Court in the case of Associated Cement Company Limited vs. Commissioner of Customs, reported in 124 STC 59 (SC). Mr. Bharucha submitted that by virtue of 46th amendment to the Constitution, the States have been empowered to levy tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of Works Contract Act and, therefore, notwithstanding the fact that there is no agreement to transfer the material or goods used in the execution of the Works Contract, if there is transfer of goods, either as goods or in some other form, then the provisions of the Works Contract Act are attracted. He submitted that in the aforesaid 3 Judges Bench decision of the Apex Court, most of the decisions relied upon by the respondents have been considered. He submitted that as per the said 3 Judges Bench decision, in a works contract, neither the dominant intention of the parties is relevant nor the percentage value of the property in goods that passes is relevant and even if the dominant intention is to render service, so long as the property in goods are transferred, the Work Contract Act would be applicable. 9. Mr. Bharucha relied upon the decision of the West Bengal Taxation Tribunal in the case of Bijoy Processing Industries vs. Commercial Tax Officer reported in 92 STC 503, and submitted that the accretion of coloured shade on the fabrics due to chemical reaction of the materials used in the process of dyeing and printing represents the form of the goods used in the process of dyeing and printing and, therefore, there is transfer of goods within the meaning of the Works Contract Act. He then relied upon the Full Bench decision of the Punjab and Haryana High Court in the case of East India Manufacturers Limited vs. State of Haryana reported in (1993) 90 STC 221 , and submitted that after the 46th amendment it has become possible for the states to levy Sales Tax on the property of the goods passing in a composite Works Contract in the same way in which the Sales Tax is leviable on the prince of the goods and materials supplied in a building contract which had been entered into in two distinct and separate parts. He then relied upon the decision of the Maharashtra Sales Tax Tribunal in the case of Mis Elektro Engineers vs. State of Maharashtra reported in (2000)21 Maharashtra Tax Journal 145, and submitted that in the execution of a Works Contract, if the property in goods passes in any form, then it is a sale under the Works Contract Act. Accordingly, Mr. Bharucha submitted that in the case of a Works Contract, neither the intention of the party is relevant nor the quantity of the property in goods that passes is relevant and once it is established that the property in goods is transferred, the provisions of Works Contract Act would apply. How much tax is leviable on such transfer of property in goods under the Works Contract Act is not the issue raised in the present Reference. 10. Mr. Bharucha relied upon the decision of the Apex Court in the case of Orissa State Warehousing Corporation vs. Commissioner of Income Tax reported in (1999)4 SCC 497 and submitted that the fiscal statutes have to be interpreted on the basis of the language used therein without any addition and the proper meaning and legislative intent has to be ascertained and the same cannot be substituted by the Courts own impression and ideas. He submitted that once it is established that in the process of dyeing and printing the property of the goods used therein namely, the property of colours, dues and chemicals passes, then irrespective of the quantity of the property in the goods that passes, the provisions of the Works Contract Act would apply. He accordingly submitted that the referred questions be answered in favour of the Commissioner and against the respondents. 11. Mr. He accordingly submitted that the referred questions be answered in favour of the Commissioner and against the respondents. 11. Mr. Joshi, learned Senior Counsel appearing for the respondents, on the other hand, submitted that the process of dyeing and printing does not fall within the ambit or purview of the Works Contract Act, as there is neither transfer of goods nor any passing of the property in goods is involved. He submitted that for the purpose of dyeing, the grey cloth supplied by the customer is passed through a chemical solution prepared by the petitioners for several times and on completion of dyeing, the entire solution is thrown as waste. He submitted that for preparing the chemical solution, materials such as dyes, chemicals and colours are used. The said materials are not transferred either as goods or in some other form to the customer. In other words, according to Mr. Joshi, in the process of dyeing, if on account of chemical reaction of the materials used, the fabrics get coloured shade, then, such coloured shade is transferred on the theory of accretion and not by way of transfer of the property of the materials used in dyeing. Mr. Joshi submitted that to constitute transfer of the goods, there must be intention to transfer goods, there must be price fixed for such transfer of goods and there must be actual transfer of goods which are visible and perceivable. In other words, the chattel must pass as a chattel. In the contract for dyeing, neither there is intention to transfer goods nor any intention to transfer the property in goods in any form and in fact on dyeing, neither the goods as goods or in some other form can be seen or perceived on the fabric. Therefore, there is no transfer of goods and consequently there is no sale within the meaning of the Work Contract Act 12. Mr. Joshi submitted that both the questions referred to at the instance of the Commissioner are questions of fact and not questions of law. Mr. Joshi submitted that the basis of taxability under the Works Contract Act is transfer of property in goods and unless there is transfer of property in goods, there is no liability for payment of tax. Mr. Joshi submitted that both the questions referred to at the instance of the Commissioner are questions of fact and not questions of law. Mr. Joshi submitted that the basis of taxability under the Works Contract Act is transfer of property in goods and unless there is transfer of property in goods, there is no liability for payment of tax. He submitted that the transfer of property in goods may take place by sale, or as ancillary to the service contract or by way of accession in a works contract Transfer of property in goods, except in the case of sale, are not taxable either under the sale of Goods Act or under the Works Contract Act He submitted that in the present case the Tribunal on factual appreciation of facts came to the conclusion that there is no transfer of property in goods and even assuming that too insignificant value of the materials in the form of coloured shade passes on the fabrics, then, such passing is on the theory of accretion/accession and not by way of transfer of property in goods. In any event, such insignificant passing of property in goods is not contemplated to be taxed under the Works Contract Act 13. Mr. Joshi at the cost of repetition, submitted that, in dyeing, there is fusion of chemicals and due to chemical reaction of colours, chemicals and dyes, the grey fabric gets some shade. He submitted that the solution of dyes meant for dyeing is a specifically prepared solution, for a particular job. It is not capable of being preserved for a long time in the storage tank. It loses its chemical effect if allowed to be preserved for longer periods. It has to be used for immediate purpose of dyeing the particular cloth for a particular shade only. Mr. Joshi submitted that after the process of dyeing, the said chemical solution is a mere waste and is thrown out or disposed of as an affluent The chemical solution thrown as waste is almost the entire quantity of solution prepared and the cloth takes up only a coloured shade due to chemical reaction of the solution. The quantity of the solution which goes in giving coloured shade to the fabric is too insignificant It is not like painting a wall where the entire paint solution is applied to the wall. The quantity of the solution which goes in giving coloured shade to the fabric is too insignificant It is not like painting a wall where the entire paint solution is applied to the wall. Therefore, in dyeing, the chemicals used are consumed and otherwise fused off in the process of dyeing and no property in goods passes. Mr. Joshi submitted that what is passed on to the cloth as a shade is on account of the chemical reaction of the dyes, chemicals and colours. Therefore, it is not a case of passing goods either as goods or in some other form of goods. It is not a case where the property of the entire dyes, chemicals and colours, stored as solution in the tank pass as goods. The quantity of the dyes, chemicals and colours which on fusion gives a coloured shade to the grey cloth, is too insignificant quantity of the dyes, chemicals and colours used for preparing the solution in the tank. Accordingly, Mr. Joshi submitted that there is no passing of property in goods, either as goods or in some other form and, hence the Works Contract Act is not attracted. 14. Mr. Joshi further submitted that the contention of the revenue that the materials used in the process of dyeing and printing are transferred in the form of coloured shade is not correct. In the case of dyeing, it is the solution made of dyes, chemicals and other reagents which comes in contact with the grey cloth. He submitted that the solution made of dyes, chemicals and colour can be said to be a form of the goods, but that solution itself being nor marketable it is incapable of being sold. Mr. Joshi submitted that the Apex Court in a number of cases has held that in fiscal taxation, either in sales tax or excise, the goods can be sold only if they are marketable goods. A solution prepared for use on the spot for a specific job and for a specific customer has no market, and no person would buy the same. He submitted that the term marketability has been interpreted by the Courts to mean goods which can be bought and sold in the open market. He submitted that in the instant case, the solution being not marketable, the question of transferring it to the customer does not arise at all. 15. Mr. He submitted that the term marketability has been interpreted by the Courts to mean goods which can be bought and sold in the open market. He submitted that in the instant case, the solution being not marketable, the question of transferring it to the customer does not arise at all. 15. Mr. Joshi submitted that even after the 46th Amendment to the Constitution, no sales tax can be levied under Entry 54 of list IT if the elements of sale as contemplated under the Sale of Goods Act are not involved in the transaction. According to Mr. Joshi, the ratio laid down by the Apex Court in the case of State of Madras vs. Gannon Dunkerley and Co. (Madras) Limited, (9 STC 353 SC) still holds goods even after the Amendment to the Constitution. He submitted that in a contract of service, property in goods may pass as an incident of service and in a works contract, the property in goods may pass as accretion of accession. Such transfers, which is incidental to the contract of service or by way of accretion in a works contract, are not taxable either under the Sale of Goods Act or under the Works Contract Act. In a works contract, the transfer of property in goods may pass by agreement of the parties. In the event, there being no dispute about the value and quantity of goods in which property passes, the tax will be leviable. According to Mr. Joshi, if the works contract or the service contract does not provide for transfer of goods, then, even if the goods either as goods or in any other form passes in execution of the contract either incidentally or by way of accession, there is no transfer of property in goods and hence the tax is not leviable. 16. Mr. Joshi submitted that the decision of this Court in the case of Commissioner of Sales Tax vs. R. M. D. C. Press Limited reported in (1999)112 STC 307 (Bom), is squarely applicable to the present case. In that case, it was held by this Court that ink is a tool of the printer and when consumed in the process of printing the ink losses its identity as goods. In that case, it was held by this Court that ink is a tool of the printer and when consumed in the process of printing the ink losses its identity as goods. It was held that when a customer gets some paper printed, it cannot be said that he also gets ink either as ink or ink in some other form. It was held that what is taxable under the Works Contract Act is the value of the goods (either as goods or in some other form) which gets transferred to the customer in execution of Works Contract and not the value of the goods used or consumed in the execution of the Works Contract. He submitted that in the present case dyes, colours and chemicals are used and consumed in the process of dyeing and the same are not transferred either as goods of in any other form and hence, there being no transfer, the Works Contract Act, is not applicable. 17. Mr. Joshi referred to the decision of the Apex Court in the case of State of Maharashtra vs. Sarvodaya Printing Press reported in 114 STC 242 (SC). In that case, the respondent who ran a printing press, entered in to an agreement with the Madhya Pradesh Electricity Board for the supply of revenue money receipt book at the rate of Rs. 8.88 per receipt book. It was held in that case that the paper and ink used in the process were the property of the respondent before printing but after printing, they became the property of the Board. It was held that the property in those goods i.e. the paper and ink which was passed on to the Board, was only incidental or ancillary to the contract of printing and, therefore, it was not a case of sale but a Works Contract and hence Sales tax was not leviable under the Bombay Sales Tax Act. 18. Mr. Joshi relied upon the decision of the Apex Court in the case of Everest Copiers vs. State of Tamil Nadu reported in 103 STC 360 (SC). In that case, while dealing with the Tamil Nadu General Sales Tax Act (prior to 1982) it was held that the work undertaken by the operator of a photocopier or Xerox machine is not for transfer of the paper upon which the copy is produced. In that case, while dealing with the Tamil Nadu General Sales Tax Act (prior to 1982) it was held that the work undertaken by the operator of a photocopier or Xerox machine is not for transfer of the paper upon which the copy is produced. It was held that the transfer of paper upon which the duplication takes place is only incidental to the transaction and the customer has no interest in the bare paper upon which his document is duplicated. He is interested in it only if it bears such duplication and, therefore, there was no transaction of sale but only a contract of work or labour. Mr. Joshi relied upon the decision of the Madras High Court in the case of State of Tamil Nadu vs. Vijayakumar Mills Ltd. reported in 100 STC 213 (Mad), and submitted that the dyes, chemicals and colours and consumed in the process of dyeing and the property of dyes, chemicals and colours are not transferred in the course of execution of the Works Contract and, therefore, the cost of such consumables had to be excluded from the total turn over. He also relied upon the decision of the Apex Court in the case of State of Tamil Nadu vs. Anandam Vishwanathan reported in 73 STC 1 (SC), wherein while affirming the decision of the High Court, it was held that, in view of the peculiar facts of the case, the contract was predominantly a contract for work with confidence and faith and had to be treated mainly as contract for labour and not contract for sale of any goods such as printed materials. 19. Mr. Joshi relied upon the decision of the Apex Court in the case of Rainbow Colour Lab. and another vs. State of Madhya Pradesh reported in 118 STC 9 (SC), wherein it has been held that after 46th Amendment to the Constitution, division of a composite contract is permissible only if the Works Contract involved a dominant intention to transfer the property in goods. It was held that the devising of a composite contract is not permissible where the transfer in property, takes place as an incident of contract of service. Accordingly, it was submitted that in the present case, there being no intention to transfer the property in goods, the Works Contract Act is not applicable. 20. Mr. It was held that the devising of a composite contract is not permissible where the transfer in property, takes place as an incident of contract of service. Accordingly, it was submitted that in the present case, there being no intention to transfer the property in goods, the Works Contract Act is not applicable. 20. Mr. Joshi submitted that as per the decisions of the Apex Court in the case of Hindustan Lever Limited vs. Collector of Central Exercise (49 ELT 408), Bhor Industries vs. Collector of Central Excise, 40 ELT 280, Collector vs. Ambalal Sarabhai, 43 ELT 214, and Indian Cable Company Ltd. vs. Collector of Central Excise, 97 STC 307, the burden is on the Revenue to lead evidence to show that the goods in question are marketable. He submitted that if the Revenue fails to discharge the burden, then, the case of the Revenue fails. Accordingly, Mr. Joshi submitted that in the present case, neither the revenue has proved that the solution of dyes, chemicals and colours used in dyeing were marketable, nor the revenue has proved that the chemical solution has been transferred to the customer in the execution of Works Contract and, hence there being no sale, the job worker/ Respondent is not a dealer within the meaning of the Works Contract Act and, therefore, not liable to pay sales tax. 21. Mr. Joshi relied upon the decision of the Apex Court in the case of State of Uttar Pradesh vs. Union of India and another, 130 STC 1 (SC) as well as the decision of the West Bengal Taxation Tribunal in the case of Studio Kamalalaya and another vs. Commercial Tax Officer, 89 STC 307 (WBIT) and submitted that when a finished product produced out of raw materials is delivered, at best a transfer of finished goods take place and there is no transfer of property of the raw materials used in producing that finished product. According to Mr. Joshi, in the process of dyeing, the materials used loose their identity as goods and the coloured shade accrues on the grey fabric by accession or accretion. The coloured shade is neither goods nor is it marketable. Therefore, is dyeing and printing, the materials used get consumed and are not transferred. Even the coloured shade itself is not marketable goods and hence not taxable. Thus, according to Mr. The coloured shade is neither goods nor is it marketable. Therefore, is dyeing and printing, the materials used get consumed and are not transferred. Even the coloured shade itself is not marketable goods and hence not taxable. Thus, according to Mr. Joshi, in any view of the matter tax is not leviable. 22. We have heard the Counsel on both sides and perused the papers and materials placed before us. 23. To appreciate the rival contentions, it would be necessary to briefly refer to the history of the law relating to Works Contract. 24. Entry 54 in list II of the VII Schedule to the Constitution empowers the State Governments to levy tax on the sale or purchase of goods other than news papers, subject to the provisions of entry 92A of List I. Entry 92A of List I empowers the Central Government to levy Taxes on the sale or purchase of goods other than news papers, where such sale or purchase takes place in the course of inter-state trade and commerce. Article 286 of the Constitution prohibits the State legislatures to impose tax on the sale or purchase of goods where such sale or purchase takes place outside the State or in the Court or the import of the goods into or export of the goods out of the territory of India. Thus, under the Constitution the State Governments can impose or authorise the imposition of a tax (other than news papers) on the sale or purchase of goods except where such sale or purchase takes place :- a) outside the state; or b) in the course of the import of the goods into, or export of the goods out of the goods out of the territory of India, c) in the course of inter-state trade or commerce. 25. The scope and ambit of the powers of the States to levy tax on transactions relating to contract for sale and Works Contract have been the subject matter of several judicial pronouncements. The decision of the Apex Court in State of Madras vs. Gannon Dunkerley and Co., 9 STC 353 (SC) is the leading case on the subject. In that case legislative competence of the Amendment to the Madras General Sales Tax Act, 1939, in so far as it seeks to impose tax on the materials used in the execution of Works Contracts was challenged. In that case legislative competence of the Amendment to the Madras General Sales Tax Act, 1939, in so far as it seeks to impose tax on the materials used in the execution of Works Contracts was challenged. After considering several case laws, the Apex Court held that the expression Sale of goods in Entry 48 in List II of Schedule VII to the Government of India Act, 1935 (similar to Entry 54) must be construed in the same sense it has been understood under the Sale of Goods Act and to constitute sale of goods, the essential ingredients are: a) there should be an agreement to sell movables, b) it should be for a price, and c) passing of goods pursuant to the agreement. It was further held that in a building contract where the agreement is one, entire and indivisible, for construction of a building according to the specifications contained in the agreement, then, in such a contract there is neither a transaction to sell the materials to be used in the construction, nor does the materials used in the construction pass as movables. It was held that the Provincial Legislature was not competent to impose tax on the supply of the materials used in such a contract by treating it as a sale. It is held that in a building contract the title to the materials used in the construction passes to the owner of the land as an accretion and there is no question of title to the materials passing as movables in favour of the other party to the contract. 26. In Northern India Caterers (India) Limited vs. Lt. Governor of Delhi, 42 STC 386 (SC), the Apex Court held that there was no sale when food and drink were supplied to the guests residing in a hotel and that the supply of meals was essentially in the nature of service provided to the guests and could not be identified as a transaction of sale. It was held that the Revenue was not entitled to split up the transaction into two parts, one of service and the other of sale of foodstuffs so as to tax the supply of foodstuff. Similarly, in several cases, it was held that, the spare parts and materials supplied in the course of execution of works contract would not constitute Sale. Similarly, in several cases, it was held that, the spare parts and materials supplied in the course of execution of works contract would not constitute Sale. It was held in several cases, that mere passing of property in an article or commodity during the course of performance of the contract does not render the transactions to be transactions of sale. 27. To overcome the effect of various judicial decisions, the Parliament, by the Constitution (Fourth Sixth Amendment) Act, 1982, amended the Constitution. The Constitutional Amendments relevant for the purpose herein are as follows: "366. Definitions. - In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say - (1)……. to (29A) "tax on the sale or purchase of goods" includes- (a)……… (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (c) ……… to (f) …………… 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 of supply is made; 286. Restrictions as to imposition of tax on the sale or purchase of goods. - (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place - (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India, (2) Parliament may be law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1). (3) Any law of a State shall, in so far as it imposes, or authorises the imposition of, - (a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or Commerce; or (b) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub-clause (c) or sub-clause (d) of clause (29A) of Article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify" . 28. In the light of the 46th Amendment to the Constitution, several State Governments amended their Sales Tax Laws. By such amendment, the States adopted a method of determining the taxable turnover relating to Works Contract by not merely taking the value of the materials supplied by the contractor in connection with the Works Contract, but also took into account the expenditure they had incurred in securing the services of architects and engineers who had supervised the execution of the works, as also the amount which they were entitled to receive for supervising the execution of the works. While levying Sales Tax on the price of the materials supplied for the construction of houses, factories, bridges etc, the Sales Tax authorities of the State did not take into account the conditions and restrictions imposed by article 286 of the Constitution as well as the Provisions of the Central Sales Tax Act, 1956. 29. The validity of such States legislations as well as the Constitutional validity of the 46th Amendment to the Constitution was considered by the Apex Court in Builders Association vs. Union of India, 73 STC 370 SC. 29. The validity of such States legislations as well as the Constitutional validity of the 46th Amendment to the Constitution was considered by the Apex Court in Builders Association vs. Union of India, 73 STC 370 SC. While upholding the 46th Amendment to the Constitution, the Apex Court in that case, observed that in order to overcome the effect of its decision in the case of Gannon Dunkerley and Co., 9 STC 353 the Parliament amended Articles 366 by introducing sub-clause (b) of Clause (29-A) and further held (at page 396) as follows: "The object of the new definition introduced in clause (29-A) of article 366 of the Constitution is, therefore, to enlarge the scope of "tax on sale or purchase of goods" wherever it occurs in the Constitution so that it may include within its scope the transfer, delivery of supply goods that may take place under any of the transactions referred to in sub-clauses (a) to (f) thereof wherever such transfer, delivery of supply becomes subject to levy of sales tax. So construed the expression "tax on the sale or purchase of goods" in entry 54 of the State List, therefore, includes a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract also. The tax leviable by virtue of sub-clause (b) of clause (29-A) of article 366 of the Constitution thus becomes subject to the same discipline to which any levy under entry 54 of the State List is made subject to under the Constitution." It was further held by the Apex Court that after the 46th amendment the Works Contract which was an indivisible one, is, by a legal fiction altered into a contract which is divisible into two i.e. one for sale of goods and the other for supply of labour and services. Rejecting the contention of the States, that on passing of the 46th Amendment, the Constitution had conferred on the States a larger freedom than what they had before, in regard to their power to levy Sales tax under entry 54 of the State List, it was held that the 46th Amendment does no more than making it possible for the States to levy Sales tax on the price of the goods and materials used in Works Contracts as if there was a sale of such goods and materials. Accordingly, while upholding the validity of the 46th Amendment, it was held that the Sales Tax laws passed by Legislatures of States levying taxes on the transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract shall be subject to the restrictions and conditions mentioned in each clause or sub-clause of article 286 of the Constitution. 30. The validity of 46th Amendment to the Constitution was once again considered by the Apex Court in the case of Gannon• Dunkerley vs. State of Rajasthan reported in 88 STC 204. After reviewing all the case laws it was held by the Apex Court (at page 228) as follows :- "If the legal fiction introduced by Article 366 (29-A) (b) is carried to its logical end it follows that even in a single and indivisible works contract there is a deemed sale of the goods which are involved in the execution of a works contract. Such a deemed sale has all the incidents of a sale of goods involved in the execution of a works contract where the contract is divisible into one for sale of goods and the other for supply of labour and services. It was further inter alia held (at page 237) as follows :_ "(5) In order to determine the value of the goods which are involved in the execution of works contract for the purpose of levying the tax referred to in article 366 (29-A)(b), it is permissible to take the value of the works contract as the basis and the value of the goods involved in the execution of the works contract can be arrived at by deducting expenses incurred by the contractor for providing labour and other services from the value of the works contract". 31. Now, turning to the provisions of the State legislation relevant to the present case, the Maharashtra Sales Tax on the Transfer of Property in Goods Involved in the Execution of Works Contract (Re-enacted) Act, 1989 was brought into force in the State of Maharashtra with retrospective effect from 1st October, 1986. Section 2(d), 2(1) and section 2(m) of the said Works Contract Act (as amended by Act No. 12 of 1995) are relevant for the purpose herein and the same are reproduced here in below : Definitions : "2. Section 2(d), 2(1) and section 2(m) of the said Works Contract Act (as amended by Act No. 12 of 1995) are relevant for the purpose herein and the same are reproduced here in below : Definitions : "2. In this Act, unless the context otherwise requires :_ (d) "dealer" means any person who, whether for valuable consideration commission, remuneration or otherwise, transfer property in goods involved in the execution of works contracts and includes any State Government and the Central Government which so transfers such property in goods, and any society, club, or association of persons which so transfers the property in goods to its members. "(1) "sale" means a transfer of property in goods whether as goods or in some other form) involved in the execution of a Works Contract in the State, and the word "sell" with all its grammatical variation and cognate expressions shall be construed accordingly: "(m) sale price means",- (i) the amount of purchase price of the goods or, as the case may be, the value of the goods, brought or transferred from a place outside the State where such goods are sold in the same form in which they were purchased, brought or transferred, and (ii) where the goods have been sold in the form other than the form in which they were purchased or as the case may be, brought or transferred from a place outside the State, then the purchase price of the goods or, as the case may be, the value of the goods brought or transferred from a place outside the State, and so sold." 32. In the present case, the principle question that falls for consideration is, whether the coloured shade/print passed on to the fabric in the course of dyeing and printing amounts to transfer the property of the materials used in dyeing and printing within the meaning of the Works Contract Act. There can be no dispute that in a dyeing/printing contract, the dominant intention of the parties is to transfer the requisite coloured shade/print on the fabrics supplied by the customer. How the coloured shade/print is to be passed on to the fabrics and what ingredients or materials should be used for obtaining the requisite coloured shade/print may not be specified in the contract. How the coloured shade/print is to be passed on to the fabrics and what ingredients or materials should be used for obtaining the requisite coloured shade/print may not be specified in the contract. Prior to the 46th Amendment to the Constitution, in the absence of specific contract for transfer of such materials used in the execution of works contract (either in their usual form or in some other form), it could not be said that there is sale of the materials used in the execution of a composite works contract. However, by the 46th Amendment to the Constitution, the concept of sale has been altered and by a deemed fiction, the materials used in the execution of a works contract which are passed on either in its original form or in some other form are brought within the meaning of the term sale. According to Mr. Joshi unless the materials used in dyeing and printing pass in some or the other physical form, there is no passing of property in goods. In other words, according to Mr. Joshi if the property in goods passes as a result of some chemical reaction, then such passing of the property in goods is by accretion and not by transfer of the property in goods. The arguments putforth by Mr. Joshi can be best understood by referring to the different form of water (as and by way of analogy), as stated here in below: "Water in the normal temperature is in liquid form, in high temperature it is in the vapour form and in low temperature it is in the solid form. These are all different physical forms of water. However, when the water is subjected to electrolysis and an electric current is passed through water, due to chemical rejection, the water molecules break in to two, namely, Hydrogen and oxygen. Thus, on chemical reaction the water is converted in to a chemical form or gaseous form comprising of hydrogen and oxygen. According to Mr. Joshi, property in water can be said to pass, and if, there is transfer in any physical form (i.e. either in liquid form, solid form or vapour form) and not in its chemical form or gaseous from (Le. as hydrogen and oxygen). 33. We see no merit in the contentions raised by the respondents. According to Mr. Joshi, property in water can be said to pass, and if, there is transfer in any physical form (i.e. either in liquid form, solid form or vapour form) and not in its chemical form or gaseous from (Le. as hydrogen and oxygen). 33. We see no merit in the contentions raised by the respondents. When the term sale in the work contract Act has been defined to include by a deemed fiction, the transfer of property in goods in any form, there is no reason to restrict the definition to cover only those transactions which involve transfer of goods in some physical form and not in some chemical form. In our opinion, the words "some other form" used in the definition of sale in the Works Contract Act applies to the transfer of property in goods in its every form i.e. physical form or any other form, including the chemical form. In other words, transfer of property in goods used in the execution of a works contract, either in its physical form or any other form including the chemical form constitute sale under the Works Contract Act. In the present case, the coloured shade is passed to the fabrics due to the chemical reaction of the materials used in the process of dyeing. Coloured shade may be due to the chemical reaction of one or more materials. The coloured shade represented the inherent chemical property of the materials used. Once there is passing of the chemical property of the materials used in the execution of works contract, then under the Works Contract Act, there is a deemed sale of the materials used in the execution of the works contract. Accordingly we hold that in the process of dyeing, the coloured shade passed on to the fabrics constitutes sale of the materials used in dyeing, under the Works Contract Act. 34. It is true, that to constitute sale, either under the Sale of Goods Act, or under the BST Act, the intention of the parties to transfer the goods by an agreement, determination of price of the goods to be transferred and the actual transfer of goods as per the agreement is necessary. 34. It is true, that to constitute sale, either under the Sale of Goods Act, or under the BST Act, the intention of the parties to transfer the goods by an agreement, determination of price of the goods to be transferred and the actual transfer of goods as per the agreement is necessary. However, under the Works Contract Act, the concept of deemed sale has been introduced, as a result, irrespective of the criteria laid down under the Sale of Goods Act or the BST Act, if, in the execution of a Works Contract, the property of the materials used in the execution of the Contract passes either in its original form or in some other form, then, there is deemed sale of those materials under the Works Contract Act. The definition of sale under the Sale of Goods Act and under the BST Act are materially different from the definition given under the Works Contract Act. In other words, to constitute sale under the Works Contract Act, the only criteria required to be fulfilled is the transfer of property in goods used in the execution of Works Contract either in its original form or in some other form and not the criteria laid down under the Sale of Goods Act or under the BST Act. 35. The contention of Mr. Joshi that even after the 46th Amendment to the Constitution, the ratio laid down by the Apex Court in the case of Gannon Dunkerley, 9 STC 353 still holds good and that the transfer which is incidental to the contract of service cannot be taxed, is without any merit. The very foundation of the 46th Amendment to the Constitution was to bring to tax the transfer of the materials (in any form) used in the execution of Works Contract. Therefore, once it is held that there is transfer of goods used in the execution of a works contract either in its original form or in some other form, then, even if there is a composite works contract, it is deemed to be bifurcated and the provisions of the Works Contract Act would apply to the materials used in the execution of such composite work contract. This is exactly what the 3 Judges Bench decision of the Apex Court has held in the case of Associated Cement Company Ltd., 124 STC 59. This is exactly what the 3 Judges Bench decision of the Apex Court has held in the case of Associated Cement Company Ltd., 124 STC 59. As stated hereinabove, the 3 Judges bench decision of the Apex Court in the case of A. C. C. Limited (supra) has clearly held that even if the dominant intention of the contract is the rendering of service, it will amount to works contract and after the 46th Amendment, the States would be empowered to levy Sales Tax on transfer of the materials (in any form), used in the execution of a works contract. 36. Mr. Joshi strongly contended that the transfer of property in the form of coloured shade/print is on the theory of accretion or accession which is incidental to the contract and not by way of transfer of the materials used in the execution of works contract. As pointed by the Apex Court in the case of Gannon Dunkerley, 88 STC 204 at 213, the mischief or the defect in the expression sale pointed out by judicial decision led to the 46th Amendment to the Constitution. Once the mischief or the defect is remedied by bringing in the concept of deemed sale in a works contract, then the only criteria relevant for deemed sale is the Court in the case of Sarvodaya Printing Press vs. State of Maharashtra reported in 1994(2) Mh.L.J. (FB) 1322 = 93 STC 387 wherein it is held that the paper and ink used in printing passes to the customer after printing and become the property of the customer by theory of accretion. The Full Bench decision of this Court has been upheld by the Apex Court which is reported in 114 STC 242. Therefore, the decision in R.M.D.C. Press case rendered by the Division Bench without considering the Full Bench decision of this Court in the case of Sarvodaya Printing Press, (which was binding on the Division Bench), must be held to be per incuriam. Once it is held that the property in goods used in the execution of works contract passes incidentally or by theory of accretion, such passing, though not a sale under BST Act, would be deemed sale under the Works Contract Act. Once it is held that the property in goods used in the execution of works contract passes incidentally or by theory of accretion, such passing, though not a sale under BST Act, would be deemed sale under the Works Contract Act. In the present case, as the property of the materials used in the process of dyeing and printing are passed on to the customer in the form of coloured shade and such passing amounts to sale, the provisions of the Works Contract Act are attracted. 39. Now, turning to the second question, the Tribunal has held that the coloured shade passed on to the fabrics represents very small quantity of the materials used in dyeing and hence the Works Contract Act is not applicable. As rightly contended by the Counsel for the Revenue, under the Works Contract Act, what is relevant is the passing of property in goods used in the execution of the Works Contract and not the quantity of the material that passes. It is not the case of the respondents that the chemical solution used for dyeing retains its property even after dyeing. In fact, it is the specific case of the respondents that the solution prepared for dyeing the grey fabrics of one customer, cannot be used for dyeing the grey fabrics of another customer. It is the case of the respondents that on completion of dyeing, of a particular fabric, the chemical solution becomes worthless and is thrown as a waste. Therefore, it is clear that on completion of dyeing, the entire property of the materials used in dyeing are passed on and what remains as solution is nothing but the residue or the waste. In other words, the coloured shade on the fabrics represents the entire property of the materials used in dyeing. Therefore, it was not open to the Tribunal to hold that the coloured shade represents only very small quantity of the materials used for dyeing and, therefore, the Act is not applicable. In this Reference, we are not concerned with the issue relating to the computation of tax on transfer of property in goods used in the execution of a Works Contract. We are only concerned with the applicability of Works Contract Act to the materials used in the execution of works contract. In this Reference, we are not concerned with the issue relating to the computation of tax on transfer of property in goods used in the execution of a Works Contract. We are only concerned with the applicability of Works Contract Act to the materials used in the execution of works contract. As stated hereinabove, what is relevant for the applicability of Works Contract Act is the passing of the property in goods and not the quantity of goods that passes. The decision of the Apex Court in the case of State of Uttar Pradesh, 130 STC 1 relied upon Mr. Joshi, does not in any way support the case of the respondents. Accordingly, we are of the opinion that the Tribunal was not justified in holding that the Works Contract Act is not applicable in the present case, because the coloured shade passed on to the consumer represents only a small quantity of the materials used in the process of dyeing. 40. For all the aforesaid reasons, we hold that the property of the materials such as chemicals, colours and dyes used in the process of dyeing and printing are passed on to the fabrics of the Customer and such passing of property of the passing of the property in goods (in any form) In other words, to constitute sale under the Works Contract Act, the test is, whether the materials used in the execution of a works contract pass to the contracts either in its original form or in some other form? If it passes, then there is deemed sale of the materials used in the execution of the Works Contract even if there is no specific agreement between the parties for sale of materials, even if the price for such sale is not agreed between the parties and even though the materials are not delivered as materials. In the present case, due to the chemical reaction of colours, chemicals and dyes, the inherent property in those goods are passed on to the fabrics. The fact that after the inherent property in those goods are transferred to the fabrics the remaining solution is thrown out as waste or affluent, does not in any way affect the taxability on transfer of the property in goods already effect on the fabrics. The fact that after the inherent property in those goods are transferred to the fabrics the remaining solution is thrown out as waste or affluent, does not in any way affect the taxability on transfer of the property in goods already effect on the fabrics. Admittedly, after dyeing, the solution made of colours, chemicals and dyes is thrown as waste, because, on transfer of the property in the form of coloured shade, the said solution becomes worthless. Therefore, the legislature has sought to tax the property in goods which passes and not the remnants or the affluent that remains after the passing of the inherent property in those goods. 37. It is true that the decision of the Apex Court in the case of Rainbow Colour Lab (supra) supports the contention of the respondents. However, since the ratio laid down therein has been doubted by the 3 Judges Bench decision in the case of A.C.C. Limited (supra), we are bound by the ratio laid down by the larger Bench in the case of A.C.C. Limited, which is a later decision in point of time. As stated hereinabove, the larger Bench of the Apex Court has held that after the 46th Amendment to the Constitution, even if the dominant intention of the Contract is the rendering of service, it will amount to works contract and in the execution of such contract, if the property of the materials used passes, then, it is a deemed sale and sales tax can be levied. As regards the other decisions relied upon by Mr. Joshi, the same being rendered in the context of the provisions of Sales Tax Act and not under the Works Contract Act, the ratio laid down therein are clearly distinguishable. The contention of the respondents that the revenue has failed to establish the marketability of the chemical solution used for dyeing is also without any merit. As stated hereinabove, what is relevant under the Works Contract Act is the passing of the property of goods used for dyeing. Once it is established that the property of the goods used in dyeing has passed to the consumer in any form, then under the Works Contract Act there is a deemed sale of those materials and the tests laid down (including marketability test) under the Sale of Goods Act or the BST Act cannot be imported into the Works Contract Act. 38. 38. The ratio laid down by this Court in the case of R.M.D. C Press Pvt. Ltd., 112 STC 307 has no precedential value in view of the decisions of the Apex Court in the case of Sarvodaya Printing Press (supra) and the Constitution Bench (3 Judges Bench) decision in the case of A. C. C Limited (supra). In the case of R.M.D.C Press, this Court took the view that the ink is a tool of the printer and the same is consumed in the process of printing and looses its identity as goods and, therefore, no property can be said to pass in ink used in the execution of the contract of printing. This finding is contrary to the Full Bench decision of this materials is a deemed sale and tax is leviable on such materials under the Works Contract Act. 41. Accordingly, we answer both the questions referred to us in the negative i.e. in favour of the Revenue and against the Respondents. 42. The Reference is disposed of in the above terms, with no order as to costs. Reference answered accordingly.