Judgment :- Radhakrishnan, J. The question that arises for consideration in these cases is whether Cochin Port Trust, governed by the Major Port Trust Act, 1963 is a dealer under the Kerala General Sales Tax Act and liable to pay sales tax. 2. STR.321 of 2005 and STR. 326 of 2005 arise out of a common order passed in TA.No.1 of 2000 and TA.No.143 of 2003 of the Kerala Sales Tax Appellate Tribunal, Addl. Bench – II, Ernakulam. TA 1 of 2000 and TA. 143 of 2003 were disposed of along with TA. No.162 of 2000 filed by the State. State has not filed any revision petition against the order in TA. 162 of 2000 and hence we need only examine the correctness or otherwise of the common order passed in TA. 1 of 2000 and TA.143 of 2003. TA. 1 of 2000 relates to the assessment year 1994-95 and TA. 143 of 2003 relates to the assessment year 1997-98. TRC. 412 of 2002 was filed by the Cochin Port Trust against the order in TA. 479 of 1998 relating to the assessment year 1990-91. In all these cases the main issue arising for consideration is the question posed by us. 3. Cochin Port Trust is an assessee on the rolls of Asst. Commissioner (Assmt.), Commercial Taxes, Special Circle, Mattancherry, Assessment for the year 1994-95 was completed by the assessing authority vide proceedings dt. 31-3-1999 fixing the taxable turnover of Rs.2,02,58,33,660/- as against the conceded taxable turnover of Rs.1,65,36,244/-. Port Trust challenged that order in appeal before the Deputy Commissioner (Appeals) Ernakulam contending that Port Trust is not a dealer within the meaning of KGST Act in view of the decision of the Apex Court in State of Tamil Nadu and another v. Boaard of Trustees of the Post of Madras (1999) 114 STC 520. Contention was also raised against the addition made to turnover under works contract and hire charges and forfeiture of excess tax etc. Appellate Authority disposed of the appeal with certain directions to the assessing authority on the levy of tax on works contract and turnover of right to use and also confirming the forfeiture of tax made by the assessing authority and confirmed levy of tax @ 15% as sale of Tug. Appellate Authority rejected the plea of the Port Trust that it is not dealer under KGST Act. Appellate Authority rejected the plea of the Port Trust that it is not dealer under KGST Act. Assessee had also filed appeal against the finding of the assessing authority with regard to the assessment year 1997-98. Apart from the contention that the Port Trust is not a dealer, the levy of tax on the turnover to the tune of Rs.61,95,79,834/- as turnover under works contract was also questioned. Various other contentions were also raised. Tribunal disposed of both TA.1 of 2000 and TA. 143 of 2003 along with TA.162 of 2000 upholding various directions given by the appellate authority. 4. The question as to whether Port Trust is a dealer under the KGST Act was the cardinal issue which was dealt with by the Tribunal and that is the main issue urged before us by counsel on either side. Contentions on either side centred round the question as to whether Madras Port Trust’s case (supra) decided in the light of the Tamil Nadu General Sales Tax Act, 1959 would apply to the Cochin Port Trust which is governed by the Kerala General Sales Tax Act, 1963. Counsel appearing for the Cochin Port Trust Sri. Anil D. Nair contended that the provisions of the Tamil Nadu General Sales Tax Act are pari materia to that of the KGST Act and that the dictum laid down by the Apex Court in Madras Port Trust’s case would squarely apply to cochin Port Trust also. Special Government Pleader (Taxes) Sri. Raju Joseph on the other hand, contended that the provisions of the Madras General Sales Tax Act and Kerala General Sales Tax Act are not pari materia and the claim of the Port Trust has to be examined in the context of the KGST Act and not on the basis of the provisions of TNGST Act and consequently the reasoning of the apex court in Madras Port Trust’s case is not applicable so far as Cochin Port Trust is concerned. Counsel on either side has also cited a few other decisions which we will deal with in the later part of the judgment. We will first deal with the relevant constitutional provisions. Constitutional Provisions 5. Article 246 of the Constitution of India confers power on the appropriate legislatures to legislate on the various entries enumerated in List I, List II and the concurrent List in the Seventh Schedule. We will first deal with the relevant constitutional provisions. Constitutional Provisions 5. Article 246 of the Constitution of India confers power on the appropriate legislatures to legislate on the various entries enumerated in List I, List II and the concurrent List in the Seventh Schedule. The entries in the Lists of the Seventh Schedule are designed to define and delimit the respective areas of Legislative competence of the Union and the State Legislatures. In the Constitution there is separation of legislative powers between Parliament and the State Legislatures. Entry 54 of List II of Seventh Schedule enables the State Legislature to enact laws in respect of tax on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92 A of List I. Entry 92A of List I confers power on the Union to tax on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce. It is in exercise of powers conferred under Entry 54 of List II of Seventh Schedule the State of Tamil Nadu has framed TNGST Act and the State of Kerala has framed KGST Act. Reference may be made to Article 366 of the Constitution of India which is the definition clause. It is settled principle of law that if a term stands defined in the Act, the said term is to be given the same meaning wherever it is used in the Act, unless a contrary intention is expressed. When the Constitution itself provides a dictionary for the words used, we must look into that dictionary first for an interpretation of the words used in the statute, and if that word is defined, then it will ordinarily have that meaning assigned to it in the definition clause. We may examine the provisions of the KGST Act with reference to clause 29A of Article 366 of the Constitution (Forty-sixth Amendment) Act 1982. Tamil Nadu General Sales Tax Act, 1959. 6. Definition clauses contained in the TNGST Act under Section 2(g) and 2 (d) have already been dealt with by the apex court in Madras Port Trust’s case. However, we may refer to section 2(g) and 2(d) of the TNGST Act as unamended for easy reference. Tamil Nadu General Sales Tax Act, 1959. 6. Definition clauses contained in the TNGST Act under Section 2(g) and 2 (d) have already been dealt with by the apex court in Madras Port Trust’s case. However, we may refer to section 2(g) and 2(d) of the TNGST Act as unamended for easy reference. “Section 2(g): ‘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— (i) a local authority ….. which caries on such business; (ii) ….. ……… (iii) a factor …. Or an auctioneer, or any other mercantile agent by whatever name called, … who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal, or through whom the goods are bought, sold, supplied or distributed; (iv) to (ix) …………….. Explanation (1) ……….. (Explanation (2) – The Central Government or any State Government which, whether or not in the course of business, buy, well, supply or course of business, buy, well, supply or distribute goods, directly or otherwise, for cash, or for deferred payment, or for commission, remuneration or other valuable consideration, shall be deemed to be a dealer for the purposes of this Act; Section 2 (d) : ‘business’ includes,-- (i) any trade, or commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain of profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and (ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern." Madras Port Trust’s case was decided by the apex court on 26-3-1999. TNGST Act was later amended by Act 22 of 2002, which came into force on 3-6-2002. We may extract the relevant portions of the same for easy reference. “THE TAMIL NADU GENERAL SALES TAX (SEVENTH AMENDMENT) ACT, 2002. Act.No.22 of 2002 (Received the assent of the governor on the 26th May, 2002) An Act further to amend the Tamil Nadu General Sales Tax Act, 1959. We may extract the relevant portions of the same for easy reference. “THE TAMIL NADU GENERAL SALES TAX (SEVENTH AMENDMENT) ACT, 2002. Act.No.22 of 2002 (Received the assent of the governor on the 26th May, 2002) An Act further to amend the Tamil Nadu General Sales Tax Act, 1959. Be it enacted by the Legislative Assembly of the State of Tamil Nadu in the Fifty-third Year of the Republic of India as follows:- 1. Short title and commencement—(1) This Act may be called the Tamil Nadu General Sales Tax (Seventh Amendment) Act, 2002. (2) It shall coming to force on such date as the State Government may, by notification, appoint. 2. Amendment of section 2—In the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as the principal Act), in section 2, -- (1) in clause (g), after the Explanation (2), the following Explanation shall be added, namely:-“Explanation (3) – Each of the following persons or bodies who dispose of any goods including unclaimed or confiscated or unserviceable or scrap surplus, old or obsolete goods or discarded material or waste products whether by auction or otherwise directly or through an agent for cash or for deferred payment or for any other valuable consideration, notwithstanding anything contained in this Act, shall be deemed to be a dealer for the purposes of this Act to the extent of such disposals, namely— (a) Port trust; xx xx xx (4) in clause (n), after Explanation (1-B), the following Explanation shall be inserted, namely:- “Explanation (1-C) – Every transfer of property in goods including goods as unclaimed or confiscated or as unserviceable or as scrap surplus, old, obsolete or discarded materials or as waste products, by the persons or bodies referred to in Explanation (3) in clause (g) of section 2 of this Act, for cash or for deferred payment or for any other valuable consideration whether or not in the course of business shall be deemed to be a sale for the purposes of this Act.� Madras Port Trust’s case: 7. The apex court in Madras Port Trust’s case has elaborately considered various provisions of the TNGST Act in the context of Major Port Trusts Act, 1963. The apex court in Madras Port Trust’s case has elaborately considered various provisions of the TNGST Act in the context of Major Port Trusts Act, 1963. In view of the fact that Port Trusts are not established for carrying on business and referring to the various activities of the Madras Port Trust apex court took the view that the long list of its activities and services only show how infinitesimal are the sales of unserviceable or unclaimed goods as compared to the very large range of the activities and services it is supposed to render. The court concluded, Port Trust is not involved in any activity of “carrying on business� as has been clearly held in Aminchand Pyarelal’s case (1976) 1 SCR 721 and that unclaimed and unserviceable goods are sold in discharge of various statutory charges, items etc. and the sales of these items are also an infinitesimal part of the port Trust’s main activities or services. Court noticed that the sales of goods are in connection with, or incidental or ancillary to the main “non-business� activities, but they cannot be treated as “business� without any plea by the State of Tamil Nadu that the Port Trust had an independent intention to carry on business in the sale of unserviceable/unclaimed goods. Referring to the counter affidavit apex court pointed out that it is not the case of the State that there is any separate intention on the part of the Port Trust, to carry on business in the unserviceable and unclaimed goods. Apex Court finally concluded that the Madras Port Trust does not carry on business and the sale by auction of unclaimed and unserviceable goods, is only infinitesimal part of duties of Port Trust and therefore Port Trust is not a dealer within the meaning of section 2(g) of the TNGST Act. 8. The TNGST Act was amended by Act 22 of 2002. Explanation (3) was added stating that if Port Trust disposes of any goods including unclaimed or confiscated or unserviceable or scrap surplus, old or obsolete goods or discarded material or waste products whether by auction or otherwise directly or through an agent for cash or for deferred payment or for any other valuable consideration, notwithstanding anything contained in the TNGST Act, shall be deemed to be a dealer for the purpose of the Act. Therefore by Act 22 of 2002 TNGST Act has specifically brought in Port Trust also within the definition of dealer under section 2(g) of the Act by which the substratum of judgment in Madras Port Trust’s case has been lost. 9. We may now examine the provisions of the KGST Act vis-à -vis unamended TNGST Act and decide as to whether Cochin Port Trust would fall within the expression dealer the KGST Act. Kerala General Sales Tax Act. 10. Section 2 (viii) of the KGST Act defines the word “dealer� which is extracted below: “dealer� means any person who carries on the business of buying, selling, supplying or distributing goods, (executing works contract, transferring the right to use any goods or supplying by way of or as part of any service, any goods) directly or otherwise, whether for cash or for deferred payment or for commission, remuneration or other valuable consideration and includes. (a) to (d) …. ……. ……. …… (e) a person who, whether in the course of business or not, sells (i) goods produced by him by manufacture, agriculture, horticulture or otherwise or (ii) Trees which grow spontaneously and which are agreed to be severed before sale or under the contract of sale; (f) a person who, whether in the course of business or not; (1) transfers any goods, including controlled gods, whether in pursuance of a contract or not, for cash or deferred payment or other valuable consideration. (2) transfers property in goods (whether as goods or in some other form) involved in the execution of a works contract; (3) delivers any goods on hire purchase or any system of payment by installments; (4) transfers the right to use any goods for any purpose (whether or not for a specified period) for cash deferred payment or other valuable consideration. (5) supplies, by way of or as part of any service or in any other manner whatsoever, 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; Explanation: (1) & (2) …….. …………… ………………. (g) A Bank or a financing institution, which whether in the course of its business or not sells any gold or other valuable article cleared for the realization of the loan amount. Explanation: I & II ………….. ……….. …………… ………………. (g) A Bank or a financing institution, which whether in the course of its business or not sells any gold or other valuable article cleared for the realization of the loan amount. Explanation: I & II ………….. ……….. …………..� In the earlier part of the judgment we have already extracted the definition clause 2(g) and 2(d) of the TNGST Act. A comparison of the above mentioned definition clauses in KGST Act and TNGST Act would show that the requirement of “carrying on business� by buying, selling, supplying or distributing goods directly or otherwise whether for cash or deferred payment or for commission, remuneration or other valuable consideration was a necessary ingredient of a dealer under the TNGST Act, but clauses like (e), (f) and (g) of Section 2 of the KGST Act were absent in the TNGST Act. We have already indicated, in Madras Port Trust’s case Supreme Court was emphasizing the expression “carrying on business� in the context of the TNGST Act. And it is in that context the Supreme Court held in Madras Port Trust’s Case that the Madras Port Trust is not carrying on any business which is not a necessary prerequisite so far as KGST Act is concerned. In any view by Act 22 of 2002 the TNGST Act has been amended and explanation (3) was added to definition clause 2(g) of the TNGST Act as well. By the said amendment Madras Port Trust is now dealer under the TNGST Act. 11. The Madras Port Trust’s case was later followed by the Andhra Pradesh High Court in Visakhapatnam Port Trust v. Commercial Tax Officer, Intelligence and another, (2002) 125 STC 294. Referring to the provisions of the Major Port Trusts Act, 1963 the Division Bench of the Andhra Pradesh High Court took the view that selling of water to the ships is only an incidental function of the port trust and not its dominant or primary activity and such activity cannot be treated as “business� within the meaning of that term occurring in the definition of the term “dealer� in section 2(e) of the Andhra Pradesh General Sales Tax Act. 1957. In the Madras Port Trust’s case applications were preferred by the Port Trusts of Cochin, Kandla and Calcutta before the apex court for intervention. 1957. In the Madras Port Trust’s case applications were preferred by the Port Trusts of Cochin, Kandla and Calcutta before the apex court for intervention. However, in paragraph of the judgment the apex court stated that the court is not examining the leviability of sales tax under the respective State enactments. The court has only permitted them to support the submissions of the Madras Port Trust in the context of the Tamil Nadu statute. Apex court therefore did not examine the scope of the KGST Act in the Madras Port Trust’s case. We are also informed that later the definition clause of dealer in the Andhra Pradesh General Sales Tax Act has also been amended. 12. We have already compared the various provisions of the KGST Act with reference to TNGST Act and we notice that the provisions are not pari material. The activities of the Port Trust buying, selling supplying or distributing goods, executing works contract, transferring the right to use any goods or supplying by way of or as part of any service, any goods directly or otherwise, whether for cash or for deferred payment or for commission, remuneration or other valuable consideration would fall within the purview of section 2(viii) of the KGST Act. Further as per subclause (d) of clause 29A of Article 366 of the Constitution of India transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration will include “tax on the sale or purchase of goods�. Following the above mentioned constitutional provisions the KGST Act has included an explanation 3B in the definition of sale which is as follows: “a transfer of right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration shall be deemed to be a sale.� Section 5 of the KGST Act, which is the charging section, was also amended by incorporating subclause (iii) to subsection (1) of Section, as per Act 17 of 1984 with effect from 1-4-1984 in line with the constitutional amendment. Subclause is extracted below for easy reference: “In the case of transfer of right to use any goods for any purpose (whether or not for a specified period) at the rate of 8 at all point of such transfer.� Reference may also be made to the definition of “business� contained in the Kerala General Sales Tax Act. Subsection (vi) of Section 2 defines “business�. As per subclause (b) thereof any transaction in connection with, incidental or ancillary to such trade, commerce, manufacture, adventure or concern are also included in the definition of business. Above mentioned provision would positively show that the Cochin Port Trust would fall within the expression “dealer� in the KGST Act since he activity of Port Trust in transfer of right to use goods is a routine affair and intrinsically connected with the activities of the Port Trust. Further, the transfer of right to use goods will come within the definition of turnover and exigible to tax under section 5(1) (iii) of the KGST Act. The requirement of “carrying on business� by buying, selling, supplying or distributing of goods directly or otherwise whether for cash or deferred payment or for commission, remuneration or other valuable consideration was a necessary ingredient of the TNGST Act when the Madras Port Trust’s case was decided unlike the KGST Act. The principle laid down in the Madras Port Trust’s case is therefore not applicable to Cochin Port Trust governed by the KGST Act. 13. We may now examine the activities indulged by the Cochin Port Trust so far as the assessment years in question. In respect of TRC 412 of 2002, the books of accounts of the Cochin Port Trust for the year 1990-91 were called for and verified, which disclosed interstate sales for Rs.7,38,888/-. Assessing authority pointed out that the tax collected under the KGST Act had to be forfeited and CST be demanded. Appeal filed against the same was rejected by the appellate authority. Matter was carried on in appeal before the Tribunal. Contention was raised by the Port Trust that the sale agreement by the Port Trust was interstate sale and they would not come within the expression of dealer under the KGST Act was repelled by the Tribunal and the assessing authority was directed to issue necessary orders to adjust the tax collection towards the demand of the tax under CST for the year 1990-91. In STR. In STR. 321 of 2005 we notice that the appellate authority set aside the addition to turnover, amount of Rs.50,41,95,859/- as turnover under section 5 (1) (iii) and levy of tax thereon. Matter was remitted back to the assessing authority for reexamining the assessability of receipt under crainage Rs.11,41,238/-, hire on equipment for container handling Rs.5,79,58,320/- and miscellaneous income Rs.3,24,82,656/-. In STR. 326 of 2005 also appellate authority examined the contention as to whether the assessing authority had committed error in assessing Rs.61,95,79,934/- as works contract turnover as against the correct figure of Rs.8,23,57,483/-. It was noticed that the figure adopted for the purpose of assessment shows no specific details and consequently appellate authority cancelled the same and directed the assessing authority to reexamine the issue and dispose of the same in accordance with law. With regard to levy of tax on Rs.16,93,05,949/- treating it as turnover of transfer of right to use goods assessing authority was directed to reconsider the matter afresh. Directions given by the appellate authority were not interfered by the Tribunal. We also find no illegality in the finding of the Tribunal. 14. We therefore hold that the Cochin Port Trust would fall within the meaning of “dealer� under section 2(g) of the KGST Act and consequently assessable to tax. It is so declared. Tax Revision case and S.T. Revision cases would stand dismissed.