J.S. Verma, J.
1. This judgment shall also govern the disposal of Misc. Civil Case No. 120 of 1973 (Commissioner of Sales Tax, M. P. v. Kansari Udyog Sahakari Samiti, Navapara).
2. In both these references made under Section 44 of the M. P. General Sales Tax Act, 1958, a common question of law, arising out of the Tribunal's common order dated 23rd March, 1971, has been referred for decision of this Court. The question is as under :
Whether, under the facts and in the circumstances of the case, the transaction in which the dealer obtained 'kansa' (raw material) from his customers and supplied utensils of the same weight and charged only labour charges will be a sale liable to sales tax under the M. P. General Sales Tax Act, 1958.
3. The relevant period of assessment in these two references is 1st July, 1964, to 30th June, 1965, and 1st July, 1965, to 30th June, 1966. The assessee is a co-operative society registered under the M. P. Co-operative Societies Act, 1960. It is a registered dealer under the M. P. General Sales Tax Act, 1958. The assessee manufactures utensils made of 'kansa' (an alloy). The transactions in question are those in which the society sold 'kansa' utensils, after receiving from the customer raw material in the shape of old 'kansa' goods. It is not as if the customer supplies old 'kansa' goods and that very material is melted and converted into new utensils, which are then delivered to the customer. But for a certain quantity of old 'kansa' given by the customer to the assessee, ready-made 'kansa' utensils of equal weight are given by the assessee and the money paid in addition is only an amount which may be considered to be labour charges including profit. In short, for the 'kansa' utensils transferred by the assessee to the customer, the consideration given by the customer is an equal weight of 'kansa' in the shape of old goods plus some money which is considered to be labour charges, including profit. Thus a substantial consideration is an equal amount of 'kansa' in the shape of old goods, the money part representing only the labour charges of the assessee in making the utensils. These are the facts found by the Tribunal and the question is whether such a transaction amounts to 'sale' under the M. P. General Sales Tax Act, 1958, and is, for that reason, exigible to sales tax.
4. The Sales Tax Officer as well as the Appellate Assistant Commissioner of Sales Tax, Raipur, took the view that these transactions amounted to 'sale' as defined in Section 2(n) of the M. P. General Sales Tax Act, 1958, and were accordingly taxable. The assessee's appeal to the Tribunal, however, succeeded. The Tribunal has taken the view that these transactions do not amount to sales on account of which they are not taxable under the Act. At the instance of the Commissioner of Sales Tax, the aforesaid question has been referred by the Tribunal for the decision of this Court.
5. The findings recorded by the Tribunal as well as the question referred show that the transaction in question is one in which equal weight of 'kansa' (raw material) of which the utensils are made, is supplied by the customer to the assessee and that is the substantial consideration for transfer of property in the utensils by the assessee to the purchaser and that the money paid as consideration only represents the labour charges of making the utensils. The question is whether a transaction of this kind amounts to 'sale'.
6. It is settled that the definition of 'sale' contained in the M. P. General Sales Tax Act cannot be construed to include within its ambit those transactions which do not fall within the definition of 'sale' contained in the Sale of Goods Act and the definition in the Sales Tax Act must, therefore, be construed accordingly. See State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.  9 S.T.C. 353 (S.C.) Section 4 of the Sale of Goods Act defines 'sale' as a transaction whereby there is transfer of property in goods to the buyer for a 'price'. Section 2(10) of the Sale of Goods Act defines 'price' as 'money consideration for a sale of goods'. Thus, in order that a transaction may amount to a 'sale' in accordance with the Sale of Goods Act, the consideration has to be money. A transaction like the one with which we are concerned, wherein the substantial consideration is supply of an equal amount of raw material and money part represents only the labour charges, cannot be treated as amounting to a sale within the meaning of the Sale of Goods Act. The definition of 'sale' given in Section 2(n) of the M.P. General Sales Tax Act, 1958, should also, therefore, be construed similarly. The relevant words in the definition of 'sale' are 'for cash or deferred payment or for other valuable consideration'. The words 'other valuable consideration' in the context have to be construed as equated with 'money', the word 'money' being wider than 'cash'. This was the view taken in similar circumstances by a Division Bench of the Allahabad High Court in Sales Tax Commissioner, U.P. v. Ram Kumar Agarwal  19 S.T.C. 400, with which we are in respectful agreement. The transaction in that case was one where ready-made ornaments of gold manufactured by a goldsmith were transferred in consideration of equal quantity of gold given by the customer in addition to the labour charges for making the ornaments. The ornaments were prepared by the goldsmith out of gold purchased in the market by him and an equal quantity of gold was supplied by the purchaser only at the time of purchase of the gold ornaments. It was not as if the goldsmith prepared ornaments only out of the gold supplied earlier by the purchaser. Such transactions were held to be not 'sales' under the U.P. Sales Tax Act, which defines 'sale' substantially in the same words as is done under the M.P. Act. In separate, though concurring judgments, the learned Judges of the Allahabad High Court held as follows :
It cannot be denied that if a person has gold lying at home and he gives it to the goldsmith to convert it into ornaments, no sale of gold takes place. Then again, if the assessee in the present case, had given to the goldsmith the requisite quantity of gold lying with him before the ornaments were prepared, the transaction would not have amounted to a sale. Merely because gold ornaments when ready were brought to the assessee for purchase and he replaced the gold content thereof from his stock-in-trade will not alter the true nature or character of the transaction...the character and nature of the transaction, whether the gold was given prior or after the manufacture of the ornaments, remained the same.
M.H. Beg, J.
(as he then was)-'The transactions with which we are concerned here are mere barters of bullion for bullion together with the payment of wages for the work done by the goldsmiths. Neither in form nor in substance can such a transaction be looked upon as a 'sale' in the legal sense of that term. There are no specific words used in Section 2(h) of the Act which may lead to the inference that such transactions which are beyond the purview of a 'sale', as it is ordinarily understood in law, must be meant to be included here...
The term 'money' has also a legal meaning as well as a popular sense both of which bar the inclusion of bullion or metal of any kind as such in the concept of 'money'. After all, we are not concerned with what may pass for money in exceptional conditions or under the special usages and customs of a peculiar or commercially backward or primitive society. Legally speaking, 'money' is just what is 'legal tender', or what a tradesman is legally bound to accept under the law of the country. The term 'money' is explained in the Shorter Oxford English Dictionary as follows:
In modern use applied indifferently to coin and to such promissory documents representing coin (esp. bank notes) as are currently accepted as a medium of exchange...
The term 'cash' is narrower than 'money'. The words 'deferred payment or other valuable consideration' used in Section 2(h) of the Act, merely enlarge the ambit of the consideration beyond 'cash', but they do not, in my opinion, carry it outside the scope of the term 'money'. The words 'other valuable consideration' are general as compared with the two preceding more specific terms 'cash' and 'deferred payment'. 'Cash' and 'deferred payment' are also considerations. Hence, all the conditions for the applicability of the 'ejusdem generis' rule are satisfied and the expression 'other valuable consideration' can and must be interpreted restrictively here. It seems intended to cover cheques and promissory notes or negotiable instruments which serve the purpose of 'money' in modern commercial practice and usage and which can be included in the concept of 'money'.
This decision of the Allahabad High Court, with which we are in respectful agreement, was rightly relied on by the Tribunal for reaching the conclusion that the transactions in question in the present case do not amount to 'sale' in order to be taxable under the M. P. General Sales Tax Act, 1958.
7. The decision of this Court in Dauram v. State of M.P.  13 S.T.C. 562, 180 is clearly distinguishable on facts. There, the entire consideration was paid as money and no gold was given against the gold ornaments purchased from the goldsmith who had manufactured those ornaments. It is true that gold had been purchased by the goldsmith from the market for making the ornaments, but that purchase of gold was entirely for himself with which the customer was not concerned. The customer paid the whole consideration in money as price of the ornaments purchased by him. The facts of that case were, therefore, different from the abovesaid Allahabad High Court case  19 S.T.C. 400, in which the customer had supplied the requisite quantity of gold used for making the ornaments and money was paid only towards labour charges for making the ornaments, as in the transactions before us. However, this Court, while deciding that case, laid down the test to be applied for deciding whether the transaction amounts to 'sale' for the purposes of the State Sales Tax Act, as under :
In other words, it has to be seen whether it was the intention of the customer to have the ornaments prepared by the petitioner and to pay him only wages for his labour, or whether he intended to pay for the finished product. On the findings of the sales tax authorities there can be no doubt that in those cases where the petitioner manufactured ornaments out of gold purchased by him from the sarafs, the intention was to sell the finished product and the gold contained in the ornaments was thus also sold along with the ornaments. The petitioner was, therefore, liable to pay sales tax on the value of the ornaments.
The contention that the petitioner was not making any profit on the gold which he was using for the ornaments does not help the petitioner. In the case of a manufacturer, who sells goods prepared out of raw materials purchased by him from the market, it cannot be said that he is not liable for the price of the raw materials as he never intended to make any profit on them as such. The transaction has to be considered as a whole and the factors which entered into bringing the finished product in existence cannot be separated.
8. Applying the aforesaid test indicated in the above-mentioned decision  13 S.T.C. 562, the result is the same as reached by us on the facts of the present case. The intention of the customer in the transaction, with which we are concerned, was clearly to pay only the wages for the labour in making the utensils, while supplying the raw material in kind, and not to pay the price of the finished product.
9. In Chalmer's Sale of Goods (16th Edition), for distinguishing a transaction of sale from that of work and materials, the test to be applied is indicated as under :
If the real substance of the contract is the performance of work by A for B, it is a contract for work and materials notwithstanding that the performance of the work necessitates the use of certain materials and that the property in those materials passes from A to B under the contract.
However, in the present case, it is not necessary for us to decide whether the transaction amounted to a works contract or a transaction of barter or exchange and the only thing necessary to decide is whether it amounts to a 'sale' or not. Unless a transaction amounts to 'sale', it is not taxable under the M. P. General Sales Tax Act, 1958, whether it be a works contract or a transaction of barter or exchange. Accordingly, we express no opinion whether the transactions in the present case amounted to works contract, as held by the Tribunal, or they were transactions of barter or exchange. In either case, they do not amount to sales and are, therefore, not exigible to sales tax under the M. P. General Sales Tax Act, 1958.
10. The question referred to us is answered as follows :
On the facts and in the circumstances of case, the transaction in which the dealer obtained 'kansa' (raw material) from his customers and supplied utensils of the same weight and charged only labour charges, does not amount to a 'sale' and is, therefore, not liable to sales tax under the M. P. General Sales Tax Act, 1958.
11. The reference is answered accordingly. There shall be no order as to costs.