ORDER : 1. Heard the parties. 2. This civil revision under Section 86 of the Rajasthan Sales Tax Act, 1994 (the Act) challenges order of the Rajasthan Tax Board, Ajmer dated 20.12.2002 passed in Taxation Appeal No. 400/2001. 3. The Tax Board has affirmed order dated 07.11.2000 passed by the Appellate Authority in Appeal No. 323/2001 whereby, the Appellate Authority partially set aside the order of the Commercial Tax Officer dated 15.09.2000. 4. The Commercial Tax Officer had taxed the sole respondent with liability to pay Rs.18,87,210/-. 5. A brief fact of this case is that the sole respondent-M/s Shree Ram Traders at Bhilwara was engaged in the business of mines blast to facilitate the service recipient a smooth mining exercise. For that purpose, the respondent used to enter into agreement with the service recipient. The respondent had license to purchase explosives for the purpose. The respondent had purchased explosives to the tune of Rs.80,18,829/- for performance of a work contract with the declaration in Form ‘C’. The respondent produced the books of accounts disclosing the fact that entire explosives were used to perform the contract work of explosion. 6. The Assessing Officer (Commercial Tax Officer) made assessment for the year 1997-98 and issued notice to the respondent to produce the relevant documents. 7. The respondent contended that use of material to perform contract work was not within the definition of “Sale” as defined under Section 2(38) of the Act. However, the Assessing Authority treated the use of explosives as “deemed sale” to the service recipient and imposed tax as well as interest of Rs.11,47,172/- and fine of Rs.7,42,640/- besides other nominal penalties imposed under Section 61 and 68 of the Act of 1994. 8. The respondent challenged the order of the Assessing Authority in the above referred appeal. The Appellate Authority was of the view that purchase of explosives and use of the same in performance of contractual act was not a “sale” transaction for taxation, therefore, the Authority set aside the fine amount aforesaid, as there was no case of taxation. The assessed tax was also set aside. However, other minor penalties were upheld for delayed submission of the return. 9. The Tax Board did not find any infirmity with the Appellate Court’s order, hence, dismissed the appeal before it. Thereafter, this civil revision by the aggrieved party. 10. The assessed tax was also set aside. However, other minor penalties were upheld for delayed submission of the return. 9. The Tax Board did not find any infirmity with the Appellate Court’s order, hence, dismissed the appeal before it. Thereafter, this civil revision by the aggrieved party. 10. Learned counsel for the petitioner contends that the questions of law involved in this civil revision are: (i) “whether the Tax Board has erred in law in not interfering with the Appellate Court’s order which was against the law as explosives for use of job work by the respondent comes under the definition of sale under the provisions of Section 2(38) of the Act.” (ii) Second question is “whether the First Appellate Authority as well as Rajasthan Tax Board erred in law in relying upon the judgment of the Hon’ble Supreme Court in Rainbow Colour Lab & Anr. Vs. State of M.P. (2000) 2 SCC 385 , which was already reversed by the Hon’ble Supreme Court in the case of Associated Cement Companies Limited Vs. Commissioner of Customs, (2001) 4 SCC 593 .” (iii) Thirdly “whether the Courts below have erred in setting aside order of the Assessing Authority without considering the 42nd Amendment in the Constitution of India permitting the taxing authority to impose tax and interest on the explosives used in work contract.” 11. Learned counsel for the respondent contends that the respondent had paid tax at the time of purchase of explosives, which is not disputed. The respondent was using explosives under licence as service provider to the service recipient. Without explosives, the respondent could not have performed its part of contract as the service recipient without licence could not have purchased or retained explosives nor it is a case of the plaintiff that the explosives were sold for consideration to anyone. Rather, specific case of the taxing authority is that even use of the explosives by the service provider (respondent) was a deemed sale, as such was taxable. There is no notion of deemed sale. 12. Learned counsel for the respondent relied on the judgment of a Division Bench of this Court in Shekhawat Explosives Vs. State of Rajasthan & Anr. 2003 (2) WLC (Raj.) 398. Before the Division Bench, identical issue was there. 13. Section 2(38) of the Act of 1994 defines “sale.” Unless the transaction is “sale” within the definition aforesaid, it is not taxable. State of Rajasthan & Anr. 2003 (2) WLC (Raj.) 398. Before the Division Bench, identical issue was there. 13. Section 2(38) of the Act of 1994 defines “sale.” Unless the transaction is “sale” within the definition aforesaid, it is not taxable. The said provision reads as follows: “Section 2(38) “sale” with all its grammatical variations and cognate expressions means every transfer of property in goods by one person to another for cash, deferred payment or other valuable consideration and includes: (i) a transfer, otherwise than in pursuance of a contract, of property in goods for cash, deferred payment or other valuable consideration. (ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract. (iii) Any delivery of goods on hire-purchase or other system of payment by installments. (iv) a transfer of the right to use goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration. (v) a supply of goods by an unincorporated association or body of person to a member thereof for cash, deferred payment or other valuable consideration. (vi) a supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply is for cash, deferred payment or other valuable consideration and such transfer, delivery or supply shall be deemed to be a sale and the words “purchase” or “buy” shall be construed accordingly. Explanation I: Notwithstanding anything contained in this Act, where any goods are sold in packing, the packing material in such case shall be deemed to have been sold with the goods, unless otherwise proved by the dealer. Explanation II: A sale or purchase shall be deemed to take place inside the State: (a) in a case falling under sub-clause (ii), if the goods are in the State at the time of their use, application or incorporation in the execution of a works contract, not with standing that the agreement for the works contract has been wholly or in part entered into outside the State or that the goods have been wholly or in part moved from outside the State. (b) in a case falling under sub-clause (iv), if the goods are used by the lessee within the State, whether or not for a specified period, notwithstanding that the agreement for the lease has been made outside that State or that the goods have been moved from outside the State or the goods have been delivered to the lessee outside the State. Explanation III: Where there is a single contract of sale or purchase in respect of goods stored or ascertained in the State as well as at places outside the State, the goods stored or ascertained in the State shall be deemed sold separately in or from the State. Explanation IV: Where the work under a works contract is spread over in many States including the State of Rajasthan, the part of the work done within this State shall be deemed to be the sale made in the State, irrespective of the place of agreement for works or the point of movement of goods involved in the execution of that works contract.” 14. Section 4 of the Act is also relevant, which is being reproduced below: “4. Levy of tax and its rate: (1) Subject to the other provisions of this Act and the provisions of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), the tax payable by a dealer under this Act, shall be at single point in the series of sales by successive dealers, as may be prescribed and shall be levied at such rates not exceeding fifty per cent on the taxable turnover, as may be notified by the State Government in the Official Gazette. (2) Where any goods are sold packed in some material, whether charged for separately or not, notwithstanding any thing contained in sub-section (1) the tax liability of and the rate of tax on the packing material shall be according to the tax liability of and the rate of tax on the goods packed therein.” 15. Before the Division Bench of this Court in Shekhawat Explosives case (supra), submission of the appellant was that the job work which was undertaken by the appellant was that of blasting and in that work of blasting, the explosives were used, which stood exhausted in the process of blasting itself. Before the Division Bench of this Court in Shekhawat Explosives case (supra), submission of the appellant was that the job work which was undertaken by the appellant was that of blasting and in that work of blasting, the explosives were used, which stood exhausted in the process of blasting itself. Therefore, there was no effective sale of explosives by the appellant so as to make it leviable for charging the sales tax under the provisions of the Act and therefore, the order of the Assessing Officer was bad from very inception. 16. The Division Bench considered both the provisions of Sections 2(38) and 4 of the Act and held as follows: “A conjoint reading of the provisions of sub-section 2(38) and sub-section 4(1) makes it clear that in such matters when a job of blasting is undertaken, the use of explosives in such job can neither be termed as sale within the meaning of Rajasthan Sales Tax Act nor it could be subjected to the levy of the Tax. Learned counsel Sh. Bhandari has argued before us rather he was pains to argue on the basis of Section 2(38) clause (ii) that it remains a case of sale because it involved a transfer of property in goods and he submits that the explosives had been purchased by the appellant on the basis of the form ‘C’ supplied by the department and on that basis he did avail certain concession. Even if that be so, it will not give the status of sale to such process of extention. Even if it is a case of transfer of property though the property does not stand transferred in any physical form, it stands exhausted in the process of the execution of the works contract. Unless any transaction is given the status of sale within the meaning of Section 2(38), there is no question of charging Sales Tax thereon. Even if it is a case of transfer of property though the property does not stand transferred in any physical form, it stands exhausted in the process of the execution of the works contract. Unless any transaction is given the status of sale within the meaning of Section 2(38), there is no question of charging Sales Tax thereon. In case, the appellant has made any misuse of the form ‘C’ and has wrongly availed any concession or has taken any undue benefit or unlawful gain, which otherwise could not be available to him, it is always open for the concerned authorities to make appropriate action against him in accordance with law, but that does not mean that he could be made liable to pay Sales Tax on such transaction (which does not amount to sale) on the basis of which job of blasting was undertaken and completed and in the process thereof the explosives were made use of.” 17. Since, the question raised has already been decided by a Division Bench of this Court, the order of the Tax Board or Appellate Authority cannot be faulted on the ground that the action of the respondent in using explosives for performance of its job came under the definition of sale under Section 2(38) of the Act. Point No. 1 stands decided against the appellant. 18. Coming to the next Point No. (ii) and (iii), it would be worth to mention that the provision 29-A under Article 366 of the Constitution of India was added with new definition “Tax on sale or purchase of goods” with effect from 02.02.1983 which is being reproduced below: “(29A) “tax on the sale or purchase of goods” includes: (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration. (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) a tax on the purchase or any instalments; delivery of goods on hire-system of payment. (d) a tax on the 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. (c) a tax on the purchase or any instalments; delivery of goods on hire-system of payment. (d) a tax on the 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. (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration. (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of 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, 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 or supply is made.” 19. The aforesaid provision was considered by a five-Judges Bench of the Hon’ble Supreme Court in Builders’ Association of India and Ors. Vs. Union of India and Ors. (1989) 2 SCC 645 and it was held that what has not been specifically enlarged by the Constitution 46th amendment cannot be assumed by the State for levy of tax nor can the entire work contract deemed to be a sale. The transfer of property in goods involved in the execution of a work contract alone is taxable i.e. goods that get affixed or built into the building. Cost of labour, service and consumables are not covered. 20. Evidently, the explosives used by the respondent was consumable and in fact was consumed, therefore, it was not within the definition of “sale” under the Rajasthan Sales Tax Act, as such not taxable. 21. In the result, this Court does not find any infirmity with the impugned order. 22. Accordingly, the instant revision petition stands dismissed.