ORDER : (Sameer Jain, J.) Present revision petitions were admitted on following question of law:- "(i) Whether the Tax Board was justified in law in holding that Artificially Created Light Energy (ACLE) is not a "Good" and hence is no taxable under RVAT Act? (ii) Whether the Tax Board was justified in law in holding that sale of Data Transmission through OFC using ACLE is not a "Deemed Sale" under RVAT Act?" 2. It is the case of the revenue-petitioner that light carrier/ACLE, used by telecommunication companies like the present assessee-respondent, is a movable property capable of being guided from point to point, having all the stipulated attributes of goods like abstraction, possession, transfer, use, delivery, etc., and works very much like 'electric energy' and therefore is liable to be treated as 'goods' as defined under Section 2(15) of the Rajasthan Value Added Tax Act, 2003 (in short "RVAT Act") and taxed accordingly. 3. On previous occasions, learned counsel for the assessee-respondent had submitted that the lis in question is squarely covered by the judgment of Karnataka High Court in the assessee's own case reported in (2011) 44 VST 486 (Karnataka) titled as Bharti Airtel Ltd. and Ors. v. The State of Karnataka and Ors. decided on 25.02.2011. Learned counsel for the revenue-petitioner had accordingly sought time to analyze the Karnataka High Court judgment of Bharti Airtel Ltd (supra) and Apex Court judgment of Tata Consultancy Services v. State of Andhra Pradesh.: (2001) 4 SCC 629 . 4. In this background, the matter was listed today for final disposal. 5. Learned counsel for the revenue-petitioner submitted that ACLE is abstracted from electrical energy and that ACLE is the heart, soul and life-blood of the contemporary telecommunication. Learned counsel for the revenue-petitioner contended that ACLE is possess able in the same sense as in the case of electricity. Further, ACLE is intentionally and exclusively created by the assessee-respondent for the sole purpose of enabling the customer to transmit data in the network. Learned counsel has relied upon Hon'ble Apex Court judgments of Commissioner of Sales Tax, Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur: (1969) 1 SCC 200 and State of A.P. and Ors. v. National Thermal Power Corporation Ltd. and Ors.: (2002) 5 SCC 203 to submit that the Apex Court has declared 'electricity' as 'goods', leviable to VAT. Learned counsel has relied upon Hon'ble Apex Court judgments of Commissioner of Sales Tax, Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur: (1969) 1 SCC 200 and State of A.P. and Ors. v. National Thermal Power Corporation Ltd. and Ors.: (2002) 5 SCC 203 to submit that the Apex Court has declared 'electricity' as 'goods', leviable to VAT. Learned counsel submitted that, in simple terms, electrical energy is a flow of electrons whereas ACLE is flow of photons and hence it is a good, just like electricity. It was argued that looking to the pith and substance of contract in question, it is unambiguous that the said transaction of data transmission using ACLE and OFC technology falls under Entry 54, Lisy -II of Seventh Schedule of the Constitution of India, which is the exclusive jurisdiction of the State. It was further argued that the intent of the State Legislature was to levy VAT @ 12.5% on such composite contract of sale and therefore the telecom contracts for data transmission attracts 12.5% VAT under RVAT Act, of the full contract value as composite cum indivisible contracts of sale. Learned counsel further submit that the Hon'ble Apex Court verdict in the case of BSNL and Ors. v. Union of India and Ors.: (2006) 3 SCC 1 is open ended as there were no arguments on the scientific properties of 'radio frequencies' and the empirical evidences available in the public domain in the above proceedings. Learned counsel has also relied upon Karnataka High Court judgment of Antrix Corporation Ltd. v. Assistant Commissioner of Commercial Taxes and Ors.: (2010) 29 VST 308 (Karnataka). 6. Learned counsel for the revenue-petitioner however could not refute the dictum of Karnataka High Court judgment of Bharti Airtel Ltd (supra), but submitted that against the judgment of Karnataka High Court in the case of Bharti Airtel Ltd (supra), the State of Karnataka has preferred an appeal and the same is pending adjudication before the Apex Court. 7. Per contra, learned counsel for the assessee-respondent submitted that the controversy involved is squarely covered by Karnataka High Court judgment of Bharti Airtel Ltd (supra), and even though an appeal has been filed, no stay has been granted and therefore the judgment of Bharti Airtel Ltd (supra) still holds the field. 7. Per contra, learned counsel for the assessee-respondent submitted that the controversy involved is squarely covered by Karnataka High Court judgment of Bharti Airtel Ltd (supra), and even though an appeal has been filed, no stay has been granted and therefore the judgment of Bharti Airtel Ltd (supra) still holds the field. Learned counsel further submitted that the learned Tax Board has passed the order dated 27.08.2021 after considering the Hon'ble Apex Court judgment of BSNL (supra) and Karnataka High Court judgment of Bharti Airtel Ltd (supra). It was further submitted that the contentions of the revenue-petitioner in the instant case are similar to contentions raised by State of Karnataka in the review petition filed against the judgment of BSNL (supra). However, the Hon'ble Supreme Court, vide order dated 01.12.2009 in Review Petition (Civil) No. 33523/2007, dismissed the review against BSNL (supra) both on merits and on account of delay. 8. Heard the arguments advanced by both the sides, scanned the record and considered the judgments cited at Bar. 9. In the case in hand, the assessing officer, as per his own wisdom, has declared that ACLE are very much like electrical energy and held the same to be 'goods' liable to be taxed under the RVAT Act. The analogy adopted by the revenue-petitioner was duly considered by the Tax Board, in the light of judgments of BSNL (supra), Tata Consultancy Services (supra) and Bharti Airtel (supra). The viewpoint of learned Tax Board is supported by Karnataka High Court judgment of Bharti Airtel (supra), the relevant part of which is extracted below: "41. From the aforesaid facts and rival contentions, the points that arise for our consideration are as under: 1. Whether the activity of transmission of data/ messages would fall under Entry 97 of List J or would fall under Entry 54 of List 2 of VII Schedule to the Constitution of India? 2. When Finance Act, 1994, in particular, Section 65(109-a) specifically deals with Telecommunication Services, which includes data transmission services including provision of access to wired or wireless facilities and services which is carried on by the service provider after obtaining a licence wider Section 4 of the Telegraphic Act, whether the State Legislature can levy tax on any portion or aspect of the activity carried on by such service provider? 3. 3. Whether the artificially created light energy used in transmitting the data or message through Optic Fibre Cable is 'goods' as defined under Article 366(12) of the Constitution of India and in the transmission of data, is there a sale of said 'goods'? 4. Whether the contract between the subscriber and the service provider is a composite contract or indivisible contract or a composite contract which is indivisible? 5. Whether the issue involved in this case is covered by the judgment of the Apex Court in B.S.N.L. case? 6. Whether these Writ Appeals/Writ Petitions are not maintainable on the ground of availability of alternative remedy? 111. A perusal of the aforesaid issues makes it clear that it was not the mobile connection alone which was under consideration by the Apex Court. The question for consideration was, (a) what are goods in telecommunication?, (b) is there any transfer of any right to use such goods? (c) what is the nature of transaction involved in providing of telephone connection? (d) is it a composite contract of service and sale? 112. In deciding the aforesaid issues, the Hon'ble Supreme Court has categorically held that in telecommunication, the electromagnetic waves are used for transmission of data generated by the subscriber to the desired destination. The electromagnetic waves travel through free space from one point to another but can be channelled through wave guise which can be transmitted through optic fibres or even simple tubes. These electromagnetic waves are neither abstracted nor are they consumed in the sense that they are not extinguished by the user, they are not delivered or sent or transferred nor are they marketable. They are only a medium of transmission. What is transmitted is not an electromagnetic wave but the signal through such means. In telecommunication, what is transmitted is the message by means of a telegraph. No pair of the telegraph itself is transferable or deliverable to the subscribers. Therefore, they categorically declared that the electromagnetic waves are not goods within the meaning of the word, either in Article 366(12) or in the State Legislation. 113. Further, it is held therein there are no deliverable goods in existence, there is no transfer of user at all. No pair of the telegraph itself is transferable or deliverable to the subscribers. Therefore, they categorically declared that the electromagnetic waves are not goods within the meaning of the word, either in Article 366(12) or in the State Legislation. 113. Further, it is held therein there are no deliverable goods in existence, there is no transfer of user at all. Providing access or telephone connection does not put the subscriber in possession of the electromagnetic waves any more than a toll collector puts a road into the possession of toll payer by lifting the toll gate. Therefore the Supreme Court has ultimately held that whether goods are corporeal or incorporeal, tangible or intangible, they must be deliverable. To the extent, the decision of the State of U.P. held otherwise, it was in their humble opinion, erroneous. They also held a telephone service is nothing but a service. There is no sale element apart from the obvious one relating to the hand set, if any. Therefore, they summed up their findings by saying that goods do not include electromagnetic waves or radio frequencies for the purpose of Article 366(29- A)(d). The goods in telecommunication, are limited to the hand sets supplied by the service provider. 149... All the writ appeals and writ petitions are allowed to the following extent: (a) The light energy which is used as a carrier in telecommunication service for rendering service is covered by the Parliamentary Legislation i.e. the Finance Act, 1994 read with Section 65(109-a). It does not fall within the Entry 54 of List-II of VII Schedule. (b) The contract in question is not a composite contract. It is an indivisible contract and a contract of service simplicitor. There is no element of sale at all to any extent. It is not a contract of sales simplicitor as contended by the State. (c) It is declared that the light energy (Artificially Created Light Energy -ACLE) is one form of electromagnetic waves. It is not 'goods' as defined in Article 366(12) of the Constitution of India or under Section 2(m) of the Karnataka Sales Tax Act, 1957 or Section 2(15) of the Karnataka Value Added Tax, 2003. Consequently, there is no sale of goods as held by the Assessing Authority. Therefore they have no power to levy tax. (d) The judgment of BSNL and other us. Union of India and Ors. Consequently, there is no sale of goods as held by the Assessing Authority. Therefore they have no power to levy tax. (d) The judgment of BSNL and other us. Union of India and Ors. reported in: 2006 (3) SCC 1 squarely applies to the facts of these cases. (e) ... (f) The impugned re-assessment orders and Assessment orders passed by the Assessing Authority levying tax on light energy are set aside. (g) ..." In the opinion of this Court, the above quoted judgment of Karnataka High Court in the case of Bharti Airtel (supra) is squarely applicable. Further, the contention raised by the learned counsel for the revenue-petitioner that ACLE is like electrical energy has already been negated by the Hon'ble Supreme Court when the review petition against the BSNL (supra) judgment was dismissed, both on delay and on merits, vide order dated 01.12.2009. 10. It is also an admitted and undisputed fact that the assessee-respondent paid service tax on the provisions of telecommunication services, and it is settled position of law that service tax and VAT are mutually exclusive. Reliance in this regard can be placed on Hon'ble Apex Court judgment of Imagic Creative Pvt. Ltd. v. The Commissioner of Commercial Taxes and Ors.: (2008) 2 SCC 614 . Further, the license granted to the assessee-respondent by the Central Government under the Telegraph Act, 1985 is also for providing telecommunication services. 11. In view of the above, relying upon the judgments of Bharti Airtel (supra) and BSNL (supra), and following principles of judicial discipline, the questions of law framed herein are answered in favour of the assessee-respondent and against the revenue-petitioner. 12. Accordingly, all these Sales Tax Revisions/References are dismissed. Pending applications, if any, stands disposed of.