1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Hindustan Lever Ltd. & Anr. VS. The State of Raj. & Ors. D.B. CIVIL WRIT PETITION NO.2213/2005 under Article 226 and 227 of the Constitution of India. Date of order : 6th Dec., 2006 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Rajendra Mehta for the petitioners. Mr. Sangeet Lodha for the respondents. ________ BY THE COURT: (PER HON'BLE RAJESH BALIA, J.) Heard learned counsel for the parties. This petition is directed against the notification dated 24th March, 2005 by prescribing the rate of sales tax to be levied on maximum retail price printed on the package notwithstanding that the subject matter of levy was not the last point sale but was the first point sale to which MRP is not 2 related. The validity of Section 4(A) of Rajasthan Sales Tax Act had also been challenged. The issues raised in this petition were similar to one raised in D.B. Civil Writ Petition No.3407/2004 - Rajasthan Chemists Association Vs. State of Rajasthan and others which was decided on 29th March, 2005. The Division Bench has opined that levy of tax on sale of goods is on the event of sale and one taxing event cannot be subjected to tax by providing measure of tax with reference to another taxing event, which has not even taken place. It was further held that every transaction of sale is independent and can be subjected to levy of tax and the measure of tax must have nexus with the components of taxable events. The aforesaid judgment of this Court has since been affirmed by the Supreme Court in appeal against the aforesaid order, in State of Rajasthan and another Vs. Rajasthan Chemists Assn. (2006) 6 SCC 773. The Apex Court has held that :- 3 “44. In the context of the meaning assigned to the expression “sale of goods” or price or consideration element of such “sale of goods” as taxable event, the conclusion that can fairly be reached is that for the taxing event of sale, if the price is to be the basis for measuring tax, it must relate to actual transaction of sale that becomes the subject of tax and not to a different transaction that may take place in future at a price. 45. Accepting the contention of the Revenue that the retail sale price likely to be received when such transaction takes place is taken only as a basis to provide measure of levying tax on a completed transaction between wholesalers and the retailer would make it suffer from basic fallacy of importing the composition (sic component) of sale which has not come into existence to determine tax which is fixed as soon as the taxable sale is completed. The Court further concluded that :- “Every transaction of sale is independent and can be subject to levy of tax and the components and the measure which can make the tax levy effective 4 must have nexus with the taxable event.” The Court further opined that :- “If Section 4-A is designed to bring a levy into existence which is divorced from the “sale” subjected to tax under the Act, it is beyond legisiative competence under Entry 54 of List II of the Seventh Schedule. The notification to the extent it intends to levy tax on first point sale with reference to price which could be charged in respect of a subsequent sale which has not come into existence at the time liability to tax arises and is determined ex hypothesis is unsustainable on that basis.” In view of the aforesaid, following the decision of the Supreme Court in Rajasthan Chemist Association's case, this petition is allowed. The impugned notification is quashed. It is clarified that if the tax component has been received by the petitioner and passed on to the subsequent purchasers, claim for refund shall not be entertained. But where it has not been so passed on and has been deposited with the authorities, the same shall be adjusted against future demands, if any. 5 No order as to costs. [GOPAL KRISHAN VYAS], J. [ RAJESH BALIA ], J. babulal/