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3) It so happened that within one year of the judgment in Rainbow Colour Lab's case, three Judges Bench of this Court rendered another judgment in the case of ACC Ltd. v. Commissioner of Customs[3], wherein it expressed its doubts about the correctness of the law laid down in Rainbow. We may point out at this stage itself that during the course of hearing of the present appeal, there was a hot debate on the question as to whether judgment in Rainbow Colour Lab's case was over-ruled in the case of ACC Ltd. case or not. This aspect will be gone into by us at the appropriate stage.

4) After the judgment in ACC Ltd. case, a circular instruction was issued by the Commissioner of Commercial Taxes to the assessing authorities to proceed with the assessments as per Entry 25. This became the subject matter of challenge before the High Court of Karnataka in the case of M/s Golden Colour Labs and Studio and others v. The Commissioner of Commercial Taxes[4]. The High Court allowed the writ petition vide judgment dated 30.07.2003 holding that a provision once declared unconstitutional could not be brought to life by mere administrative instructions. However, at the same time, the Court observed that Entry 25, Schedule VI to the Act, declared ultra vires the Constitution in Keshoram's case, cannot be revived automatically, unless there is re-enactment made by the State Legislature to that effect.

6) As was expected, this amendment was again challenged before the Karnataka High Court by the respondent herein as well as many others. Vide impugned judgment dated 19.08.2005, the High Court has again declared the said amendment as unconstitutional. It would be pertinent to mention that the High Court has not taken into consideration the events that followed after Rainbow Colour Lab's case, namely, over-ruling of the said judgment in ACC Ltd. Since the basis of Keshoram's case decided in the first calm by the High Court was same as given in Rainbow Colour Lab, obviously Keshoram also no longer remains a good law. However, the reason given by the High Court, this time, is that the ratio laid down in Keshoram's case continues to be binding on the State of Karnataka. As per the High Court, "the re-enactment of the said provision is possible in the event of a subsequent declaration made by the Hon'ble Supreme Court re-considering or pronouncing a similar question in terms of the findings in para 23 of the Golden Colour Lab's case. This is, thus, the chequered history of the litigation amply demonstrating as to how the State of Karnataka is making desperate attempts to ensure that provision in the form of Entry 25 in the said Act survives, empowering the State Government to levy sales tax for processing and supply of photographs, photo prints and photo negatives.

19) In view of the above, the argument of the respondent assessees that ACC Ltd. case did not over-rule Rainbow Colour Lab's case is, therefore, clearly misconceived. In fact, we are not saying so for the first time as a three member Bench of this Court in M/s Larsen and Toubro has already stated that ACC Ltd. had expressly over-ruled Rainbow Colour Lab while holding that dominant intention test was no longer good test after 46th Constitutional Amendment. We may point out that learned counsel for the respondent assessees took courage to advance such an argument emboldened by certain observations made by two member Bench in the case of C.K. Jidheesh v. Union of India[8], wherein the Court has remarked that the observations in ACC Ltd. were merely obiter. In Jidheesh, however, the Court did not notice that this very argument had been rejected earlier in Bharat Sanchar Nigam Ltd. v. Union of India[9]. Following discussion in Bharat Sanchar is amply demonstrative of the same: