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44. The argument of Mr. Chinoy is premised on the law laid down in the decision of the Supreme Court in the case of BSNL (supra). We would carefully peruse the said decision. In BSNL case (supra), the three Judge Bench of the Hon'ble Supreme Court was called upon to decide as to whether services which have been rendered by the BSNL could be brought within the purview of a tax and envisaged by entry No.54, list II of the Seventh Schedule to the Constitution. The argument was that the Deshmane, (P.S.) 32 of 53

47. We are afraid that this controversy and dealt with by the Hon'ble Supreme Court is not the subject matter before us. The observations and conclusions of the Hon'ble Supreme Court cannot be seen dehors this essential controversy and arising from the services rendered by the BSNL. The Hon'ble Supreme Court in the light of the constitutional challenge has applied the dominant nature test. That is how it eventually concluded and in favour of BSNL that the goods do not include electromagnetic waves or radio frequencies for the purpose of Deshmane, (P.S.) 35 of 53

(D) The issue is left unanswered.
(E) The aspect theory would not apply to enable the value of the services to be included in the sale of goods or the price of goods in the value of the service."

49. It is with this conclusion that the His Lordship Justice Dr AR Lakshmanan (as His Lordship then was) agreed. He agreed and concurred with this conclusion but added his few paragraphs. The focus never shifted from the principle issue, namely, imposition of sales tax in the light of Article 326 (29A clause d) on different activities carried on by the telecommunication service provider. In para-96, the case of BSNL was referred. In para-97 the factual aspect, namely, the entire infrastructure / instruments / appliances and exchange being in physical control and possession of the petitioner BSNL at all times and there is neither any physical transfer of such goods nor any transfer of right to use such equipment or apparatuses has been referred and set out. Then Deshmane, (P.S.) 37 of 53

52. We are in agreement with Mr. Kumbhakoni that the judgment of this Court in the case of Commissioner of Sales Tax Vs. Duke and Sons Pvt. Ltd., reported in 1999 (1) Mh.L.J. 26 cannot said to be no longer good law in the light of the judgment of the Hon'ble Supreme Court in BSNL's case. That was the argument canvased by Mr. Chinoy and his further submission is that relying upon BSNL (supra), the Tribunal rendered its decisions in favour of the franchisees, namely, M/s.