K. Sreedhar Rao, C.J. (Acting) – Heard the petitioner and the respondents. 2. The petitioner purchased petroleum products from the Indian Oil Corporation(IOC) and thereafter sold it to several dealers across Assam. The sale price collected by the petitioner from the dealers was sought to be resold to its dealers and the sale price is above 40 per cent of the sale price paid to the IOC. 3. The sales tax authorities in view of the provisions contained in section 8(1)(explanation 1) of the Assam General Sales Tax Act 1993 levied tax on the entire sale price collected by the petitioner as "a first sale", aggrieved by which an appeal was filed by the petitioner before the Assam Board of Revenue. 4. The Assam Board of Revenue held that in view of the explanation 1 of section 8(1) of the Assam General Sales Tax Act 1993 the sale made by the petitioner cannot be construed as a first sale made by the petitioner to its dealers and is not taxable. 5. The tax department subsequent to the order of the Assam Board of Revenue made an application for review of its order on the ground that the decision in appeal is contrary to the ratio laid down by the Supreme Court in civil appeal 6619/2001 between the Indian Oil Corporation v. the State of Assam and others dated 27th November, 2011. 6. It is the contention of the department that although the Assam Board of Revenue heard the appeal the judgment had been reserved for more than one year in the interregnum after hearing of appeal and the date of judgment, the Supreme Court decided the aforesaid civil appeal. In view of the ratio laid down in the said decision the decision rendered by the Assam Board of Revenue was contrary to the law laid down by the Supreme Court, hence an application for review was filed. Accordingly the Assam Board of Revenue allowed the review petition and held that the sale effected by the petitioner to its dealers amounts to a first sale, since the sale price collected by the petitioner from its dealers is above 40 per cent of the sale price paid by the petitioner to the IOC, aggrieved by which this petition was filed by the Hindustan Petroleum Corporation Ltd, the petitioner. 7. 7. At the outset it is to be noted that section 7 of the Assam Board of Revenue Act, 1962 invests the power of review in the Assam Board of Revenue of its judgment/decision. In that view it is to be held that the Assam Board of Revenue has an exercisable jurisdiction to review its own order/judgment. Consequently the question would arise whether there was any error apparent on record, either on fact or in law, to enable the Assam Board of Revenue to review its decision in appeal. 8. The facts in the civil appeal disclose that the IOC purchased petroleum products from the Bongaigaon Refinery and Petrochemicals Ltd(BRPL) and effected the sale and while collecting the sale price from dealers the IOC also collected surcharge to be payable towards the oil-pool account to the Central Government. The question arose whether the surcharge collected should form part of the sale price or should that component be excluded from assessing the sale price? The next proposition under consideration was whether the IOC would be liable to pay tax on the entire sale price collected from dealers or whether the tax is to be payable only on the difference between the sale price and the purchase price paid by the IOC to BRPL and the sale price collected from its dealers. The Supreme Court in respect of the first proposition held that the surcharge collected should form part of the sale price and should not be excluded from assessing the sale price. With regard to the second proposition the Supreme Court held that the IOC is liable to pay tax only on the difference between the purchase price and the sale price and not on the entire sale amount. 9. On close scrutiny of the said decision it discloses that the ratio laid down in the said decision does not appear to have any bearing on the question and issue involved in this petition. 10. In order to appreciate the facts and issue involved in this case it is necessary to advert to the provisions of section 8(1)(explanation 1) of the Assam General Sales Tax Act, 1993, which read as follows. "8. 10. In order to appreciate the facts and issue involved in this case it is necessary to advert to the provisions of section 8(1)(explanation 1) of the Assam General Sales Tax Act, 1993, which read as follows. "8. (1) The tax leviable under section 7 for any year shall be charged on the taxable turnover during such year - (a) in respect of goods specified in Schedule II at the first point of sale within the State, at the rate or rates specified in that Schedule. [Explanation 1] : Where a person sells a substantial part of the goods manufactured by him or imported by him to another person for sale under the brand name of such other person or for re-sale as distribution or selling agent or for re-sale after repacking or subjecting the goods to any other process not amounting to manufacture and the price charged on re-sale exceeds the sale price by more than such percentage as may be prescribed in respect of such goods or class of goods, the re-sale by such other person shall subject to rules if any, framed in this behalf, be deemed to be at the first point of sale within the State". 11. The counsel for the petitioner has strenuously contended that the second sale effected by the purchaser from the manufacturer will be subjected to tax as a first sale, if the two conditions in the explanation 1 are fulfilled, which are as follows. (i) When a person sells a substantial part of the goods manufactured by him or imported by him to another person within the state. (ii) When the sale price of the second sale exceeds 40 per cent of the purchase price then such a sale is to be construed as a first sale despite the fact that it may be a second sale in common parlance. 12. The counsel for the petitioner has strenuously contended that both the conditions are cumulative in effect and both the conditions have to be fulfilled. Even if any one of the conditions is absent, the liability to pay tax does not arise under the explanation 1 despite the fact that the sale price may exceed 40 per cent of the purchase price. Even if any one of the conditions is absent, the liability to pay tax does not arise under the explanation 1 despite the fact that the sale price may exceed 40 per cent of the purchase price. In this regard the counsel referred to the assessment order to show that the IOC had sold only 4.5 per cent of its total manufactured product to the petitioner. Therefore the quantity sold does not qualify the requisite condition "selling a substantial part of the goods manufactured", only a marginal portion is sold, therefore the first condition not being fulfilled the question of levy of tax does not arise. 13. Sri Saikia, the counsel for the department, par contra, has strenuously submitted that the proposition "a substantial part of the goods" in the explanation 1 would be with reference to the price collected and not the quantity of goods only. In that view if the purchase price forms substantial portion of the goods and the sale price collected in the second sale exceeds 40 per cent indeed it exceeded 40 per cent in the instant case, it would attract tax. The decision of the Supreme Court has no application to the facts of the case in assessing the sale price. At the time when the decision in appeal was reserved for judgment and before the judgment was pronounced the decision of the Supreme Court was rendered. It is contended that by ignoring the ratio laid down by the Supreme Court the Assam Board of Revenue rendered the decision, hence immediately the department filed a review petition, as such it cannot be said that the review petition was filed with a view to fall in line with the subsequent judgment of the Supreme Court thus stoutly resisted the writ petition. 14. Upon thorough consideration of the facts and submissions made at the bar the words "a substantial part of the goods" in explanation 1 should be understood with reference to the quantity of goods and not the sale price and in fact that was the view taken by the Assam Board of Revenue in disposing of the appeal. The view taken in the review petition that a substantial part of the goods manufactured should be with reference to the sale price is untenable. 15. The view taken in the review petition that a substantial part of the goods manufactured should be with reference to the sale price is untenable. 15. In the instant case as a fact it is on record that the quantity of goods sold to the petitioner by the IOC accounts for only 4.5 per cent of its total production, therefore the said quantity cannot be considered as a "a substantial part of the goods manufactured". When that condition does not apply despite the fact that the sale price collected by the petitioner from its dealers being in excess of the 40 per cent of the purchase price the question of levy of tax does not arise, since one of the requisite conditions viz. "the sale of a substantial part of the goods manufactured" is not fulfilled. Unless both the conditions are fulfilled the question of levy does not arise. In that view of the matter the view taken by the Assam Board of Revenue in review is untenable. That apart as stated(supra) the question and issue involved in civil appeal 6619/2001 was totally different and has no nexus with the question and issue involved in the instant case. In that view of the matter the argument that the decision of review is in consonance with the decision of the Supreme Court also is not a tenable argument. 16. Accordingly the petitions are allowed. The order dated 16th November, 2007 of the Assam Board of Revenue in 2STA(review)/2007 is quashed.