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 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 howe