SATYESHWAR ROY, J.

1. In all these cases, besides other reliefs, prayer was made for declaring the Constitution (Forty-sixth Amendment) Act, 1982 by which clause (29a) was introduced in article 366 of the Constitution, as illegal, unconstitutional and void. Consequential prayer was made for declaring that the amendment in the Bihar Finance Act, 1981 in so far as it seeks to impose sales tax on works contract was illegal and void. In view of the judgment of the Supreme Court in Builders Association of India V/s. Union of India [1989] 78 STC 370; 1989 BLT 151 these points were no more available.

2. The points which survived were the validity of rule 13-A which was introduced in the Bihar Sales Tax Rules, 1983, by notification dated 8th October, 1986 and how far the petitioners were liable to pay sales tax on works contract entered into by and between them and the persons in whose benefit building, factory, etc. , were being constructed (hereinafter to be referred to as "the employer" ).

3. The petitioners are the association of contractors, its members and other contractors. The contractors entered into contracts known as works contract with different employers for execution of various jobs. Consequent to the amendment in the Bihar Finance Act, 1981 ("the Act") and the Bihar Sales Tax Rules, 1983, the contractors whose annual gross turnover was Rs.25,000 or above were directed to get themselves registered under the Act. Direction was issued by the State Government to deduct sales tax at source from the bills of the contractors on the total value of the contract.

4. The submissions made on behalf of the petitioners are as follows :

5. In view of the judgment of the Supreme Court in Builders Association [1989] 73 STC 370, the contractors shall be liable to pay tax only in case there was sale of goods while executing a works contract and no tax was payable on the value of the labour involved in its execution. Rule 13-A was ultra vires as it provides for deduction of a certain percentage of cost incurred on labour and not the whole of the amount so incurred. The respondents were bound to give effect to the provisions of the Central Sales Tax Act, 1956 if the goods used in execution of the job were declared articles and also if the sale took place during the course of inter-State trade. In works contract, the contractors shall be liable to pay tax if the goods for execution of the works contract, viz. , cement, bricks, iron and steel are supplied by them, but no tax shall be payable if these goods are supplied by the employer and are used for execution of the job.

6. These submissions were met on behalf of the State as follows :

7. It was conceded that in view of the judgment of the Supreme Court in Builders Association [1989] 73 STC 370, no sales tax was payable on labour. But rule 13-A did not speak about labour alone and, therefore, it cannot be struck down as a whole. The contractors are liable to pay sales tax on such goods which are supplied for value by the employers, viz. , cement, bricks, iron and steel, etc. , and used in execution of the works contract. Reliance was placed on N. M. Goel and Co. V/s. Sales Tax Officer, Rajnandgaon [1989] 72 STC 368 (SC); AIR 1989 SC 285.

8. These were replied on behalf of the petitioners by submitting that rule 13-A speaks about labour alone. The ratio decidendi in Goel & Co. [1989] 72 STC 368 (SC) has no application to these cases as in that case it was question of payment of entry tax. Further, ratio in Goel & Co. [1989] 72 STC 368 (SC) was not applicable to these cases, because it was conceded on behalf of the States in Builders Association [1989] 73 STC 370 (SC) that if goods had been supplied by the person for whose benefit, building, factory, etc. , were being constructed, for the purpose of such construction the value of those goods would not be included in the taxable turnover and the Supreme Court in that case did not adjudicate on this question.

9. It is settled law that S