S.T. Desai, J.
1. This reference raised a rather interesting question under the Sales Tax Act. The necessary facts are these : The opponents submitted two questions to the Collector of Sales Tax under section 27 for determination. Those questions were : (1) Whether the opponents were dealers within the meaning of the Act and (2) Whether the transactions mentioned in their application were sales To their application, they attached two exhibits in which were mentioned transactions relating to two of their customers. That was for the purpose of showing the modus operandi followed by the opponents. The transactions relating to the customers were inter-related and the accounts constituted an integrated account. The way the opponents maintained their books of account was this. In a book described as their sonavahi, there were entries containing the accounts of gold brought by customers or gold supplied to the customers out of their own stock. The other book contained what was called the majuri account and it shows the amount received for the job work done by the opponents. They also maintained another book, viz., a rojmel. The rojmel or cash book shows the majuri or labour charges received and the expenses incurred by the opponents from day to day. The case which the opponents intended to make out in that application was set out in some detail. According to the opponents, there are well-known firms of jewellers and goldsmiths in Bombay who give majuri or labour work to the opponents for manufacture of gold ornaments from gold supplied by those merchants. In certain cases, the opponents advanced their own gold to their clients and gold of an equivalent weight was received subsequently from the clients, i.e., after the work of preparing the ornaments was done. In some cases, the gold was given before the ornaments were made and in some cases after the ornaments were made. The opponents did maintain certain quantity of gold in their own shop in order to meet with this situation. In S.Y. 2012 the opponents did not purchase any gold at all nor did they stock any ready-made ornaments for sale; nor did they sell any bullion. The accounts with their customers were settled by them from time to time and it is to be noticed that no price of the ornaments prepared was agreed upon in the case of any of those dealings. In the sonavahi, the opponents' balance was struck from time to time in the account of the customers in respect of only the weight of gold. No entries were made in that account book which would show that the price of gold was charged or given credit for. Nor was any bill submitted by the opponents to their customers in respect of the gold. Another feature of the dealings was that the majuri or labour charges did not vary with the price of gold. This practice, it has been found by the Tribunal, has been followed in the whole of the trade since 'time immemorial'. These facts were not challenged before the Tribunal and presumably they could not be challenged because such, it appears, was the modus operandi followed by the opponents for a long time.
2. Now, the contention of the Department was that these transactions really amount to sale of gold ornaments by the opponents and the opponents were liable to pay sales tax on the same. The opponents contested that position and it was in those circumstances that the application to the Collector under section 27 was presented by the opponents. The Tribunal has found the facts in favour of the opponents and has also stated that there were no accounts of any of the alleged sales in the books of the opponents and the position reflected in the books was that the opponents were only charging for majuri, i.e., labour in respect of the ornaments prepared by them. The questions submitted to us are these :-
'(1) Whether on the facts and in the circumstances of the case the transactions sought to be taxed amounted to sales within the meaning of section 2(13) of the Bombay Sales Tax Act, 1953
(2) If question (1) be answered in the affirmative, whether the respondents are 'dealers' within the meaning of section 2(6) of the Bombay Sales Tax Act, 1953 ?'
3. It has been strenuously urged before us by Mr. Banaji, learned counsel for the Sales Tax Department, that if the facts of the case are properly analysed, these transactions of the opponents were not different from sale within the meaning of that expression in section 2(13) of the Sales Tax Act, 1953. The suggestion is that though ostensibly transactions relating to majuri in respect of gold ornaments, in reality and in substance they were transactions of sales and a merchant should not be permitted to avoid payment of sales tax by resorting to any device of the nature submitted by learned counsel. Now, the initial difficulty of Mr. Banaji is that at no time does it appear to have been the case of the Department that the transactions were any different from what they ostensibly purported to be. There was no suggestion whatever that the transactions were simply intended to disguise what in reality were sales of gold ornaments. That being the position taken up by the Sales Tax Department before the taxing authorities as well as the Tribunal, it is extremely difficult to see how Mr. Banaji can hope that we can accept his line of reasoning and argument. The questions must be answered on the facts and findings on the same recorded by the Tribunal and set out in the statement of the case, and the facts and findings as they appear on the record of the case do not permit of any such contention.
4. Learned counsel has also argued that the definition of sale in the Act is very wide and includes a sale of goods for cash as well as other valuable consideration and the argument has been that in a case when gold was returned by the customer or constituent after the ornaments were manufactured and delivered, the transaction in law would be one of sale, although part of the consideration was in cash in respect of the labour work and part of the consideration was in the form of gold. In support of his argument, learned counsel drew our attention to a decision of Mr. Justice Govinda Menon (as he then was) in the case of Jayarama Chettiar In re  1 S.T.C. 168. The facts of that case are clearly distinguishable though that case does relate to a dealer in silver who delivered finished articles to his customers and there was an exchange of silver. The salient feature of that case was - and it was something which was accepted by the assessee himself - that it was the assessee's practice to sell articles of silver not for proper money consideration but only after getting back the equivalent weight of silver from the customers for the precise quantity of the silver utilised in the manufacture of the articles. Evidently, these were sales, and admitted sales, wherein the consideration was partly in cash and partly valuable consideration in the form of silver. There is nothing in the facts of that case or in the decision of the learned Judge which can lend any support to the argument of Mr. Banaji. In the case before us, it is clear from the facts which we have recapitulated that the entire modus operandi of the opponents was that they charged only for work and labour done. There was no dealing of any kind of a sale in gold nor was there anything which could bring in within the definition of sale in section 2(13) of the Bombay Sales Tax Act, 1953.
5. In the result, the first question will be answered in the negative.
6. The second question is consequential upon the first question. That also will be answered in the negative.
7. Petitioner to pay the costs.
8. There will be no order on the notice of motion.
9. Reference answered in the negative.