S.C Mohapatra, J.:— Assessee is a registered dealer under the Orissa Sales Tax Act, 1947 (hereinafter referred to as “the Act”). It was assessed for the years 1968-69 and 1971-72 to tax in respect of sales in the canteen maintained by it and of unserviceable materials like empty drums, scraps, waste materials, etc. In appeal, the Assistant Commissioner confirmed the assessment for the year 1968-69 in respect of unserviceable materials relieving the assessee from tax liability in respect of the sales in the canteen. The appeal in respect of the year 1971-72 was, however, dismissed and the assessment order was confirmed. The assessee preferred two appeals before the Tribunal in respect of the years 1968-69 and 1971-72 and the department preferred an appeal in respect of the assessment for the year 1968-69 so far as the sales in canteen are concerned. Assessee's two appeals having been dismissed and the appeal by the department having been allowed, the three reference applications were filed by the dealer.

2. In respect of the year 1968-69 only, the following question was referred by the Tribunal under section 24(1) of the Act to this Court:

“Whether, on the facts and in the circumstances of the case, sales in the workers' canteen were liable to be included in the gross and taxable turnovers of the assessee during the year 1968-69 for the purpose of assessment of sales tax?”

3. Two other questions having been refused, two applications were filed under section 24(2) of the Act for reference of the other questions and this Court called for a statement of case on the following question:

“Whether, in view of the facts and circumstances of the case, sale by the Assistant Controller (Accounts), Stores, is to be included in the gross and taxable turnovers?”

4. The assessee filed O.J.C No. 1934 of 1980 challenging the vires of the amendment of the Act in the Orissa Act 18 of 1974. All the three reference cases and the writ application were heard together and disposed of by this common judgment.

5. So far as the question referred by the Tribunal is concerned a Division Bench of this Court in the decision reported in [1975] 35 STC 195 (Tata Iron & Steel Co. Ltd. v. State of Orissa) while dealing with, the liability to tax on the sales in the canteen maintained, under the Factories Act held that maintenance and sale in a canteen constitutes an integral part of the commercial activity of mining quarries and that the sale proceeds are to be included in the turnover. The Tribunal while holding that he would be bound by the aforesaid decision of this Court referred the question in view of the decision of the Calcutta High Court reported in [1970] 26 STC 141 (Fort Gloster Industries Ltd. v. Member, Board of Revenue, West Bengal) and of the Delhi High Court reported in [1976] 38 STC 403 (Delhi Cloth & General Mills Company Limited v. Union of India). In view of the aforesaid Division Bench decision, no question of law arises out of the order. Persuasive decisions of other High Courts in the face of the binding decision of this Court would not give rise to a question of law arising out of the order. Accordingly, in view of the decision of the Division Bench the question referred to by the Tribunal is answered against the assessee.

6. The question of law on which statement of case was called for by this Court relates to the tax liability of the petitioner on the sale of unserviceable materials. It is true that the decision of the Supreme Court reported in [1976] 37 STC 423 (District Controller of Stores, Northern Railway, Jodhpur v. Assistant Commercial Taxation Officer) is in favour of the assessee. The decision of the Supreme Court was, however, considered by a Division Bench of this Court in the decision reported in [1983] 53 STC 329 (State Of Orissa v. Orissa Road Transport Company Ltd.) along with a later decision of the Supreme Court of larger Bench reported in [1976] 38 STC 577 (Board of Revenue v. A.M Ansari). It was held that the later decision of the larger Bench is to be preferred. It was held:

“The assessee's main business is running of buses and providing transport facilities to the travelling public. Though one of the objects related to disposal of its own discarded parts, that certainly was not its business. The disposal was an annual event. The assessee did not devote its time and attention for the purpose of having the transactions of disposal of spares and scraps. There was no frequency or repetition of the dealing. There is some force in the submission of the learned Standing Counsel that no general guideline can be laid down to deal with cases of every type. Yet, on the facts of the case, we are inclined to agree with the Additional Tribunal that the transactions which have been taken as sales on the footing that they constituted the assessee's business did not really constitute its business and with reference to that the assessee could not be treated as a dealer under the Act”

7. Ultimately, it was held:

“…………… On looking at the matter from a broad perspective, we are inclined to agree with the Additional Tribunal that the transactions relating to disposal of scrap and new parts which were no more necessary for the business of the assessee did not constitute business and the assessee could not be treated as a dealer in respect of such transactions.”

8. In view of the fact that the unserviceable materials were sold by the petitioner, the decision of this Court reported in [1983] 53 STC 329 (State Of Orissa v. Orissa Road Transport Company Ltd.) directly applies. The question, therefore, is to be answered in favour of the assessee.

9. In view of the answer of this question in favour of the assessee, the dispute raised in the writ application becomes academic and is not required to be examined. Accordingly, the writ application is dismissed. The parties shall bear their own costs in the three proceedings.

H.L Agrawal, C.J:— I agree.

10. Order accordingly.