(1) SPECIAL leave is granted.

(2) THESE appeals are by the Revenue and are directed against the order dated 20/05/1983 of the division bench of the High court of Punjab and Haryana in L.P.A. Nos. 444 and 445 of 1982 dismissing the appeal preferred by the appellant against and affirming the orders dated 13/01/1983 of the learned Single Judge in Civil Writ Petition Nos. 2054 and 2170 of 1982. By those writ petitions, the respondents assailed orders of assessment to sales tax under the Haryana General Sales Tax Act, 1973 bringing to tax a turnover of sales of articles of food said to have been sold by the respondents in their restaurants.

(3) AGAINST the respective orders of assessment the respondents filed appeals provided for in the statute. Section 39(5) of the Act contemplates that no appeal shall be entertained unless it is filed within sixty days from the date of the order appealed against and the appellate authority is satisfied that the amount of tax assessed has been paid. The proviso to that sub-section, however, invests the appellate authority with the discretion to waive the requirement of the payment of tax as a precondition to the entertainability of the appeal and to proceed to consider it on the merits subject to the appellant furnishing a bank guarantee or adequate security for the tax. In the present cases, appeals envisaged and permitted by the statute had been lodged. However, respondents were aggrieved by the order of the appellate authority declining to exercise the discretion under proviso to Section 39(5) in favour of respondents and calling upon them to deposit the tax due as a condition for the appeals being heard on the merits. Respondents appear to have assailed the order declining to exempt them from payment of the tax in further appeals; but without any success.

(4) RESPONDENTS thereafter approached the High court under Article 226 of the Constitution. From the order of the learned Single Judge, which has come to be affirmed by the Division bench, it would appear that the appellants did not confine their challenge to the legality of the order of the appellate authorities declining relief under proviso to subsection (5) of Section 39, but the respondents raised and the High court permitted a challenge to the merits of the assessment itself on the ground that the transactions assessed to sales tax were in fact services rendered by the respondent restaurants to their customers and did not constitute sale of articles of food. The High court entertained the writ petition and upon a re-appreciation of the facts proceeded to hold that the transactions did not constitute sales but were mere transactions of service. In these appeals the permissibility of such a re-assessment of the evidence by the High court at a stage where appeals were the appropriate remedy and where in fact such appeals had been filed is assailed. Learned counsel for the Revenue urged that the question whether supply of articles of food and drinks to a customer in a hotel constitute sale of goods invoking a transfer of the property in the goods to the customer or whether the transactions are essentially and predominantly one of merely the rendering of service the supply of food and drinks being merely incidental - is a complex and difficult question to be decided on a number of criteria and dependent on primary facts to be found by the fact-finding authority under the statute. This, indeed, is so. In the Northern India Caterers (India) Ltd. case the complexities of the exercise were indicated by this court:

"WE have no hesitation in saying that where food is supplied in an eating house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly be exigible to sales tax. In every case it will be for the taxing authority to ascertain the fact