Judgment

GROVER, J.: This judgment will dispose of two sets of cross appeals Nos. 1153-1160 and 1161-1168/68 which are from a common judgment of the Madhya Pradesh High Court and have been entertained by special leave.

2. The relevant assessment years for the purpose of levy of sales tax are from April 1, 1957 to March 31, 1958 and April 1, 1964 to March 31, 1965. For the assessment years prior to April 1, 1959 the enactment in force was the C. P. and Berar Sales Tax Act, 1947 (No. XXI of 194) and for the subsequent two years it is the Madhya Pradesh General Sales Tax Act (Act. No. 2 of 1959), which would be applicable. The material facts may be shortly stated. The assessee- Madhya Pradesh Electricity Board-hereinafter called the "Electricity Board" is a body constituted under Section 5 of the electricity Supply Act 1948. Under Sec. 18 of that Act it was the general duty of the Electricity Board to promote co-ordinated development of the generation, supply and distribution of electric energy within the State of Madhya Pradesh in the most efficient and economical manner. In the assessment years in question the Electricity Board sold, supplied and distributed electric energy to various consumers. It also sold coal-ash-a waste product and supplied steam to Nepa Mills of Burhanpur . It further supplied specification and tender forms on payment to persons desirous of submitting tenders for the works undertaken by the Electricity Board. It purchased articles like Gitti, Murran, sand etc., from unregistered dealers. It is common ground that under the provisions of Act XXI of 1947 and II of 1959 read with the Schedules contained therein sale of electricity is exempt from sales tax. For the purpose of determining the gross turnover, however, the sale of electric energy is to be taken into account.

3. The Assistant Commissioner of Sales Tax assessed the Electricity Board to tax on its turnover of sale of coal-ash and specification and tender forms and the supply of steam to Nepa Mills. The Board was further assessed to purchase tax on Gitti, Murran etc., purchased from unregistered dealers. In appeal the Deputy Commissioner, Sales Tax, upheld the assessment orders. On second appeal the Sales Tax, Tribunal which was the Board of Revenue, Madhya Pradesh, held that the Electricity Board was not a "dealer" within the meaning of that term as defined in the two Acts and that the coal-ash was not produced for the purpose of sale with the result that sales of coal-ash could not be subjected to tax. As regards the supply of steam to Nepa Mills the Tribunal, on examining the terms of the agreement under which the Electricity Board supplied the steam, came to the conclusion that such supply was an isolated transaction and that such activity had been undertaken on no profit no loss basis could not be assessed to sales tax. The specification and tender forms were held not to be marketable goods involving any profit element and for that reasons could not be taxed. As regards the purchase tax the tribunal held that as the Electricity Board was not a dealer in respect of the sale and supply of electric energy no purchase tax could be imposed on goods purchased by it and consumed "in furtherance of and in aid of the business activity of generating, Supplying and distributing electricity."

4. Both the Electricity Board and the Commissioner of Sales Tax, Madhya Pradesh, filed applications requiring the Tribunal to refer to the High Court certain questions of law arising out of its common order. The tribunal drew up a common statement of case and referred five questions of law. On the first question the High Court held that the Electricity Board could not be held to be a "dealer" as defined in Section 2 (c) of Act XXI of 1947 or Section 2 (d) of Act II of 1959 in respect of its activity of generation, distribution, sale and supply of electric energy. On the second question it was held that as the Electricity Board regularly and continuously produced coal-ash a