Judgment: S.A. Bobde, J. Heard Shri Manohar, learned counsel for the petitioners and Smt. Dangre, learned Additional Government Pleader for the respondent. 2. The petitioner has challenged the Constitutional validity of the explanation added to the definition of “Sale Price” under Section 2 (29) of the Bombay Sales Tax Act, 1959. That explanation reads as under: “For the purposes of this clause, the amount of duties levied or leviable on goods under the Central Excise and Salt Act, 1944 (Act 1 of 1944) or the Customs Act, 1962 (Act 52 of 1962) or the Bombay Prohibition Act, 1949 (Bom. 25 of 1949) shall be deemed to be part of the Sale Price of such goods whether such duties are paid or payable by or on behalf of the seller or the purchaser or any other person.” By virtue of this explanation, the petitioners are required to include the amount of excise duty levied under the provisions of the Bombay Prohibition Act, 1949, in the sale price of their goods and to pay the Sales Tax on the price arrived at after addition. According to the petitioner only such excise duty which came to the till of the assessee and turned over in his hands can be added to the sale price that is to say excise duty paid by the purchaser cannot be so added. The explanation is arbitrary and discriminatory because it fails to distinguish between the two. In support of the challenge the petitioners have relied upon the judgment of the Hon’ble Apex Court in the case of McDowell Company Limited vs. Commercial Tax Officer, reported at 1977 SCC 151 and the judgment of this Court in Writ Petition No. 2483 of 1980 decided on 2nd April 1981. 3. Smt. Dangre, learned Additional Government Pleader appearing for the respondents submits that the decision in McDowell’s case (supra) has been reversed by the Hon’ble Apex Court by the judgment of the Constitutional Bench in the case of M/s. McDowell & Company vs. Commercial Tax Officer, reported at AIR 1986 SC 649 . 3. Smt. Dangre, learned Additional Government Pleader appearing for the respondents submits that the decision in McDowell’s case (supra) has been reversed by the Hon’ble Apex Court by the judgment of the Constitutional Bench in the case of M/s. McDowell & Company vs. Commercial Tax Officer, reported at AIR 1986 SC 649 . In this judgment, their Lordships observed as follows: “We are of the view that the conclusion reached in the appellant’s case in (1977) 1 SCR 914 ; ( AIR 1977 SC 1459 ) on the second aspect of the matter, namely, when the excise duty does not go into the common till of the assessee and it does not become a part of the circulating capital, it does not constitute turnover, is not the decisive test for determining whether such duty would constitute turnover.” 4. That judgment has been subsequently followed in the case of Mohan Breweries & Distilleries Ltd. vs. Commercial Tax Officer, reported at AIR 1997 SC 3497 where the Supreme Court observed as follows: “We cannot agree with learned counsel for the appellants that the second Mc Dowell case was based only upon the provisions of the Andhra Pradesh Rules that were under consideration. It is amply clear from the citation of the authorities of this Court in that judgment that it elaborated upon the concept of excise duty and concluded that “the incidence of excise duty is directly relatable to manufacture but its collection can be deferred to a later stage as a measure of convenience or expediency”. The Andhra Pradesh Rules, it was held, “did not detract from the position that payment of excise duty is the primary and exclusive obligation of the manufacturer and if payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more”. Note was taken of the argument that excise duty had never come into the hands of the appellant and that the appellant had no opportunity to turn it over his hands and, therefore, the same could not be considered to be a part of its turnover. Note was taken of the argument that excise duty had never come into the hands of the appellant and that the appellant had no opportunity to turn it over his hands and, therefore, the same could not be considered to be a part of its turnover. It was held that the argument that “when the excise duty does not go into the common till of the assessee and it does not become a part of the circulating capital, it does not constitute turn over, is not the decisive test for determining whether such duty would constitute turnover.” 5. We, therefore, find nothing discriminatory, arbitrary or unconstitutional in the impugned explanation added to Section 2 (29) of the Bombay Sales Tax Act, since it makes no difference whether excise duty came to the common till of the assessee and was turned over in his hands. There is no challenge to the competence of the Legislature. In this view of the matter, there is no merit in the present writ petition. It is hereby dismissed. Rule discharged. Petition dismissed.