M. B. SHARMA, J. - (1.) IN the above numbered writ petitions there is challenge to rule 46 (2) of the Rajasthan Sales Tax Rules, 1955 (for short, "the Rules' ). IN some there is additional challenge to rule 29 (2) of the Rules, whereas in few others there is also challenge to section 5 (3), section 23 of the Rajasthan Sales Tax Act, 1954 (for short, "the Act) and the Notifications dated May 28, 1987, March 8, 1988 and June 28, 1989. Therefore, all the above numbered writ petitions are being disposed of by a common order. During the course of arguments none of the learned counsel for the petitioners in any of the writ petitions raised any challenge to section 23 (2) and the above referred to three notifications and therefore we will confine to the remaining challenge as aforesaid. IN the case of State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. [1958] 9 STC 353 (SC); AIR 1958 SC 560, the Supreme Court held that the expression "sale of goods" as used in entry 54 of List II (State List) of the Seventh Schedule to the Constitution of INdia or entry 48 of List II of the Seventh Schedule to the Government of INdia Act, 1935, has the same meaning as in the Sale of Goods Act, 1930. It was further held that an indivisible works contract cannot be broken up into its component parts. The aforesaid decision was followed by the Supreme Court in its later decisions and the Supreme Court held that various other transactions which resemble in substance transactions by way of sales to be not liable to sales tax. As a result of these decisions, a transaction in order to be subject to the levy of sales tax under entry 92-A of List I or entry 54 of the State List, should have the ingredients, namely parties are competent to contract, mutual assent and transfer of property in goods from one of the parties to the contract to the other party thereto for a price. As a result of the aforesaid decisions there became scope for evasion of tax in various ways and therefore the Constitution (Forty-sixth Amendment) Act, 1982, was made by the Parliament and it received the assent of the President on February 2, 1983. By the aforesaid amendment a new clause (29-A) was inserted in article 366 of the Constitution of INdia and under sub-clause (h) within the expression "tax on the sale or purchase of goods" a tax on the transfer of property in goods involved in the execution of a works contract is included. As a result of the Forty-sixth Constitution Amendment some of the States enacted separate Acts for imposing tax on works contracts and others made necessary amendment in the sales tax laws already in force. Vide Rajasthan Act No. 9 of 1988, section 4 (b), with effect from April 1, 1984, sub-section (3) was inserted in section 5 of the Act. Sub-section (3) of section 5 of the Act reads as under : " (3) Notwithstanding anything contained in this Act, in the case of a works contract, the turnover of such contract shall he subjected to tax : Provided that such deductions, as may he prescribed, may be allowed to a contractor while determining his tax liability. "
(2.) DEFINITION of "works contract" as per section 2 (u) of the Act includes any agreement for the building, construction, manufacture, processing, fabrication, erection, installation, fitting out, overhauling, repair, improvement, modification, whitewashing, painting, varnishing and other similar activities or commissioning of any movable or immovable property for cash, deferred payment or other valuable consideration but excludes a works contract purely of labour or service. Rules 29 (2) and 46 (2) of the Rules, the validity of which is under challenge, read as under : " (2 ). In case of a works contract, tax shall be computed on the turnover of the contractor after deducting - (i) The value of the goods transferred in execution of works contract, whether as goods or in some other form which have already suffered tax at the rate prescribed under section 5 or which are exempted from tax under section 4 of the Act. (ii) All sums towards labour charges, which are directly correlated with the goods, property in which has passed in the execution of works contract whether as goods or in some other form : Provided that where the labour charges are not determinable from the accounts of the contractors, or are considered unreasonably high considering the nature of the contract, the deductions towards labour charges shall be allowed by the assessing authority according to the limits prescribed in column 3 for the type of contract specified in column 2 of the Table given below : TABLe ------------------------------------------------------------------------ Sl. Type of contract Labour charges at a No. percentage of the value of the contract. 1 2 3 ------------------------------------------------------------------------ 1. Fabrication of and installation of plant and machinery. 25 2. Fabrication and creation of structural work of iron and steel including fabrication, supply and erection of iron trusses, purlins, etc. is 15 3. Fabrication and installation of cranes and joists. 15 4. Fabrication and installation of elevators (lifts) and escalators. 15 5. Fabrication and installation of rolling shutters and collapsible gates. 15 6. Civil works like construction of the buildings, bridges, roads, dams, barrages, canals and diversions. 25 7. Installation of doors, door frames, windows, frames and grills. 20 8. Supply and fixing of tiles, slabs, stones and sheets 20 9. Supply and installation of air-conditioners and air-coolers. 15 10. Supply and installation of air-conditioning equipments including deep freezers, cold storage plants, humidification plant and dehumidifier. 15 11. Supply and fitting of electrical goods, supply and installation of electrical equipments including transformers. 15 12. Supply and fitting of furniture and fixtures, partitions, including contracts for interior decorations and false ceiling. 20 13. Construction of railway coaches and wagons undercarriages supplied by railway. 20 14. Construction or mounting of bodies of motor vehicles and construction of the trailers. 20 15. Sanitary fitting for plumbing and drainage of sewerage. 25 16. Laying underground or surface pipeline, cables or conduits. 30 17. Dyeing and printing of textiles. 30 18. Supply and erection of weighing machines and weigh bridges. 15 19. Painting, polishing and white washing. 30 20. All other contracts not specified from S. Nos. 1 to 19 above. 25 ---------------------------------------------------------------------- " 46 (2) (a ).- In a works contract, the awarder in case of its being a department of any Government, a Corporation, a Government undertaking, a co-operative society, a local body, a trust or a private or public limited company, responsible for paying any sum to a contractor for carrying out any works, shall, at the time of credit of such sum to the account of the contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, deduct an amount equal to three per cent of such sum towards the tax and shall issue a certificate of deduction of tax to the contractor in form S. T. 45 : Provided that such deduction of tax shall be subject to adjustment at the time of assessment of the contractor. (b) The tax deducted under clause (a) of this sub-rule by the awarder of a contract shall be deposited by such awarder in a single challan in form S. T. 10 for all the contractors failing within the jurisdiction of one assessing authority in the account of such authority, within 15 days of the close of each month; and a monthly statement of such deposits shall he furnished by him to such authority in form S. T. 46 along with Part IV of the challan within 15 days of the date of the deposit. (c) if the tax is not deducted from the bill as provided in clause (a) above, the awarder shall he liable to pay penalty (as provided in the Act) and the contractor shall be liable to pay the said tax together with interest at the rate specified in the Act from the date of the receipt of the payment by him. " 3. The constitutionality of the Constitution (Forty-sixth Amendment) Act, 1982, came up for consideration before the Supreme Court of India in the case of Builders Association of India v. Union of India [1989] 73 STC 370; (1989) 2 SCC 645. The Supreme Court held that the aforesaid Constitution amendment was valid but did not agree with the plea put forward on behalf of the State that on the passing of the Forty-sixth Amendment the Constitution had conferred on the State a larger freedom than what they had before in regard to their power to levy sales tax under entry 54 of the State List. The court in para 40 (at pages 402-403 of STC) of the judgment said : " The 46th Amendment does no more than making it possible for the States to levy sales tax on the price of goods and materials used in works contract as if there was a sale of such goods and materials. We do not accept the argument that sub-clause (b) of article 366 (29-A) should be read as being equivalent to a separate entry in List II of the Seventh Schedule to the Constitution enabling the States to levy tax on sales and purchases independent of entry 54 thereof. As the Constitution exists today the power of the States to levy taxes on sales and purchases of goods including the 'deemed' sales and purchases of goods under clause (29-A) of article 366 is to be found only in entry 54 and not outside it. " The court in para 41 (at page 403 of STC) declared that sales tax laws passed by the Legislatures of States levying taxes on the transfer of property in goods, whether as goods or in some other form involved in the Execution of a works contract are subject to the restrictions and conditions mentioned in each clause or sub-clause of article 286 of the Constitution. perusal of the aforesaid case of Builder's Association of India [1989] 73 STC 370; (1989) 2 SCC 645 will show that the Supreme Court held as under : (i) The object of the new definition introduced in clause (29-A) of article 366 of, the Constitution by the 46th Constitution Amendment is to enlarge the scope of tax on sales or purchases of goods wherever it occurs in the Constitution. (ii) The tax leviable by virtue of sub-clause (b) of clause (29-A) of article 366 of the Constitution is subject to the same discipline to which any levy under entry 54 of the State List is made subject to under the Constitution. (iii) Under clause (29-A) (b) of article 366 of the Constitution a tax on the amount paid for the execution of a works contract is not included and it only refers to a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract. The emphasis is on the transfer of property in goods (whether as goods or in some other form ). Hence a transfer of property in goods under clause (29-A) (b) of article 366 is deemed to be a sale of goods by the person making the transfer. (iv) All transfers, deliveries and supplies of goods referred to in clauses (a) to (f) of clause (29-A) of article 366 are subject to restrictions and conditions mentioned in clause (1), clause (2) and sub-clause (a) of clause (3) of article 286 of the Constitution and the transfers and deliveries that take place under sub-clauses (b), (c) and (d) of clause (29-A) of article 366 are subject to an additional restriction mentioned in sub-clause (b) of article 286 (3) of the Constitution. As laid down in the case of Bengal Immunity Co. Ltd. v. State of Bihar [1955] 6 STC 446 (SC); AIR 1955 SC 661 each of the restrictions in article 286 are different and each has to be obeyed by the State while levying sales tax. After the Forty-sixth Amendment the works contract which was an indivisible one is by a legal fiction altered into contract which is divisible into one for sale of goods and the other for supply of labour and services. It has become possible for the States to levy sales tax on the value of goods involved in a works contract in the same way in which the sales tax was leviable on the price of the goods and materials supplied in a building contract which had been entered into in two distinct and separate parts. (v) The contractor becomes liable to pay the sales tax ordinarily when the goods or materials are used in the construction of the building and it is not necessary to wait till the final bill is prepared for the entire work. (vi) The properties that are transferred to the owner in the execution of a works contract are the goods involved in the execution of the works contract and not the conglomerate, that is, the entire building that is actually constructed. After the Forty-sixth Amendment it cannot be held that what is transferred in a works contract is the right in the immovable property. (vii) Forty-sixth Amendment has not conferred on the States a larger freedom than what they had before in regard to their power to levy sales tax under entry 54 of the State List. As the Constitution exists today the power of the States to levy taxes on sales and purchases of goods including the "deemed" sales and purchases of goods under clause (29-A) of article 366 is to he found only in entry 54 and not outside it. (viii) The value of the goods supplied by the owner for the purposes of the construction would not be included in the taxable turnover. It will be clear that the Supreme Court while dealing with clause (29-A) (b) of article 366 of the Constitution of India which as said earlier was inserted by the Forty-sixth Constitution Amendment declared that the State Legislatures were competent to levy sales tax on the price of the goods and material used in the works contract as if there was deemed sale but except to the extent aforesaid entry 54 of List II (State List) of the Seventh Schedule to the Constitution of India, did not empower the State Legislatures to impose and levy sales tax on the labour charges or service charges and any other component of the works contract, if any, incurred in the execution of the works contract. In exercise of the powers conferred under clause (2) of article 286 of the Constitution as well as entries 42 and 92-A of List I (Union List) of the Seventh Schedule to the Constitution of India the Parliament enacted the Central Sales Tax Act, 1956 (for short, "the Central Act" ). It will appear from the proviso to section 5 of the Act that no tax shall be leviable in case sale takes place in the course of inter-State trade or commerce or outside the State within the meaning of sub-section (1) of section 4 of the Central Act. It will also be clear that so far as the goods declared by section 14 of the Central Act to be of special importance in inter-State trade or commerce are concerned, the tax shall not exceed the limits laid down in clause (a) of section 15 of the Central Act. Even in respect of those goods of special importance, the tax shall not be payable if the sale takes place outside the State within the meaning of section 4 of that Act and shall not be leviable in the State at more than one stage. By the Rajasthan Act No. 9 of 1988 [sect]on 4 (b)] with effect from April 1, 1987, sub-section (3) was inserted in section 5 of the Act and the said sub-section (3) of section 5 has already been extracted in the earlier part of this order. Mr. V. K. Singhal, learned counsel for the petitioners, contended that the aforesaid provision of sub-section (3) of section 5 of the Act is against the decision of the Apex Court in the case of Builders Association [1989] 73 STC 370; (1989) 2 SCC 645. According to the learned counsel the whole turnover of the works contract has been subjected to tax under the aforesaid provision and it is not permissible because the position of law despite the Constitution of India (Forty-sixth Amendment) Act under which clause (29-A) was inserted in article 366 does not change and has not changed and the entire turnover of the works contract cannot be subjected to sales tax. There can be no dispute so far as this submission of the learned counsel for some of the petitioners is concerned. A bare perusal of ratio of the aforesaid case will show that the aforesaid Constitutional amendment does not confer a larger freedom on the State than the State had before in regard to its power to levy sales tax under entry 54 of the State List. But we have not to read sub-section (3) of section 5 of the Act in isolation but it has to he read along with other provisions of the Act and the Rules. It will be apt to quote the maxim "injostum est nisi total lege inspecta de uma aligua ejuspasticula proposita judicare vel responds". It is unjust to decide or respond to any particular part of a law without examining the whole of the law. It will appear from a bare perusal of sub-section (3) of section 5 of the Act that the words used are "turnover of such contract". "turnover" has been defined in section 2 (t) of the Act as under : " (t) 'turnover' means the aggregate amount of sale prices received or receivable for a sale, transfer, delivery or supply by a dealer in any of the ways referred to in clause (o) and Provided that the proceeds of the sale made within the State by a person of agricultural or horticultural produce, grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant, or otherwise or dairy products from animals kept by him shall he excluded from his turnover : Provided further that in the case of prescribed class of dealers, other than a manufacturer, producer, processor, or a dealer engaged in the execution of a contract, and at the option to he exercised by a dealer of such prescribed class, in such manner and subject to such terms and conditions, as may be prescribed, turnover shall mean the aggregate of the amount of purchase price paid or payable by him in respect of the goods purchased by him for sale plus an amount equal to 10 per cent of such purchase price. Explanation.- Subject to such conditions and restrictions, if any, as may he prescribed in this behalf - (i) the amount for which goods are sold or supplied shall in relation to a works contract be deemed to he the amount payable to the dealer for carrying out such contract less the cost of labour up to such extent as may he prescribed. (ii) the amount for which goods are sold or supplied shall include any sum charged for anything done by the dealer in respect of the goods sold at the time of or before the delivery thereof. (iii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included; (iv) Where for accommodating a particular customer or a purchaser a dealer obtains goods from another dealer and immediately disposes of the same to the said customer or purchaser, the sale in respect of such goods shall be included in the turnover of the latter dealer alone. " A perusal of the aforesaid extracted definition of "turnover" will show that the amount for which the goods are sold or supplied in re relation to a works contract shall he deemed to be the amount payable to the dealer for carrying out such contract less the cost of labour up to such extent, as may be prescribed. "taxable turnover" under section 2 (s) means that part of turnover which remains after deducting therefrom the aggregate amount of the proceeds of sale of goods (i) on which no tax is leviable under the Act, (ii) which have already been subjected to tax under the Act, (iii) which have been sold to persons outside the State for consumption outside the State and (iv) which are taxable at a point of sale within the State subsequent to the sale by the dealer and such sale is covered by a declaration as may be required under any provision of the Act or the Rules made thereunder. There are provisos also in the aforesaid definition with which we are not presently concerned. We will deal with the challenge to sub-rule (2) of rule 29 of the Rules at the later stage of this order, but the proviso to sub-section (3) of section 5 of the Act has already been extracted in the earlier part of this order and it clearly provides that while determining tax liability from the turnover of a works contractor, such deductions as may be prescribed could be allowed. Sub-rule (2) of rule 29 provides as to how the tax shall be computed on the turnover of a contractor and it provides for deductions' The value of the goods transferred in the execution of works contract whether as goods or in some other form which have already suffered tax at the rate prescribed under section 5 or which are exempted from tax under section 4 of the Act as well as all sums towards labour charges which are directly correlated with the goods, property in which has passed in the execution of works contract, whether as goods or in some other form, have to be deducted. It will therefore be clear that so far as "turnover" in section 5 (3) of the Act is concerned, it is to be arrived at in the aforesaid manner and it cannot be said that whole of the turnover of the works contract is to be subjected to tax. There can he no doubt that so far as works contracts are concerned, "turnover" does not include the entire cost of works contract and the whole shall not be subjected to tax under the aforesaid provision. The turnover is to be arrived at as indicated above. We are therefore of the opinion that it cannot he said that section 5 (3) of the Act is beyond the legislative competence of the State Legislature.
(3.) WE will now take up the challenge to sub-rule (2) of rule 29 of the Rules. The said sub-rule (2) has been extracted in the earlier part of this order. The contention of the learned counsel for the petitioners is that the said sub-rule (2) of rule 29 only provides for deduction of all sums towards labour charges which are directly correlated with the goods, property in which has passed in the execution of works contract, whether as goods or in some other form. Its proviso further provides that in case labour charges are not determinable from the accounts of the contractors or are considered unreasonably high considering the nature of the contract, then the deductions towards labour charges shall be allowed by the assessing authority according to the limits prescribed in column 3 for the type of contract specified in column 2 of the Table which has already been extracted in the earlier part of this order. Learned counsel for the petitioners contend that tow labour charges including service charges if any should have been allowed to have been deducted from the turnover of the works contract, but it has not been so allowed. In support of his contention that such provision is unreasonable and is against the decision of the Apex Court in the case of Builders Association [1989] 73 STC 370; (1989) 2 SCC 645, learned counsel has referred to the case of Jamshedpur Contractors' Association v. State of Bihar [1989] 75 STC 132 (Pat ). Rule 13-A was introduced in the Bihar Sales Tax Rules, 1983, vide Notification dated October 8, 1986. It provided for the deduction of labour charges at the percentage on different types of works contract. Dealing with the challenge to the aforesaid rule 13-A, the court said even if the contractor might have spent more on labour charges than the prescribed percentage stated in the rule, the contractor shall not be entitled to claim deduction beyond what has been provided. The court said that : " In other words, tax is levied on labour charge. Neither sale nor purchase of any goods is involved when a contractor spends on account of labour. 'labour' cannot be said to be a goods even within the definition of 'goods' in the Act. From the gross turnover, the total amount spent by the contractor as labour charges in execution of the works contract shall have to he excluded. Rule 13-A cannot he sustained and must be held to he ultra vires. " Learned counsel also referred to the case of Shewaram Hirwani v. State of Bihar [1990] 77 STC 55 (Pat ). There also the assessing authority was directed to make assessment ignoring the provisions of rule 13-A of the Bihar Sales Tax Rules, 1983. It will be clear that whereas in the earlier case, i. e. , the case of Jamshedpur Contractors' Association [1989] 75 STC 132 (Pat) rule 13-A was struck down, in the latter case of Shewaram Hirwani [1990] 77 STC 55 (Pat) an attempt was made to harmonise the provisions and it was said that the assessment should be made ignoring the provisions of rule 13-A. WE are of the opinion that none of the aforesaid cases can be said to be applicable so far as the present cases are concerned. It does not appear from the aforesaid two cases that in the Bihar Sales Tax Rules, 1983, there was any provision like rule 29 (2) which provides that all sums towards labour charges which are directly correlated with the goods, property in which has passed in the execution of works contract, whether as goods or in some other form, shall be deducted and what appears to have been provided in the aforesaid rule 13-A was that a specified percentage towards labour charges from the specified type of contracts was to be deducted irrespective of the fact as to whether the contractor had incurred the amount towards labour charges. In the present case, a bare reading of extracted rule 29 (2) will show that it is clearly provided that all sums towards labour charges, which are directly correlated with the goods, property in which has passed in the execution of works contract, whether as goods or in some other form, shall be deducted and only if the labour charges are not determinable from the accounts of the contractor or are considered unreasonably high considering the nature of the contract, the assessing authority has to fall on the Table given in rule 29. Therefore, if the contractor has kept proper accounts and satisfies the assessing authority that so much of the sum towards labour charges which is directly correlated with the goods, property in which has passed in the execution of works contract, whether as goods or in some other form, and we may say that labour charges will include even service charges, then the assessing authority has to allow the actual amount of labour charges and only in case the contractor does not keep proper account or the labour charges are not determinable from his accounts and if the assessing authority considers the same to be unreasonably high considering the nature of contract, the assessing authority will fall on the Table and will allow the deduction of labour charges. It was contended by the learned counsel for the petitioner that the assessing authority, may for no reason say that he considers the labour charges unreasonably high considering the nature of the contract and therefore refuse to allow complete deduction of labour charges incurred by the contractor in the execution of a works contract. But we are of the opinion that hierarchy of the authorities is provided and general presumption is that the authorities will do their acts in accordance with law and there is no reason to say that the assessing authority will unnecessarily harass a dealer despite the fact that a dealer might have maintained proper accounts on which the satisfaction of the assessing authority can he recorded, the assessing authority will harass him and disallow the complete deduction and only percentage of the labour charges will be allowed to be deducted. A Division Bench of this Court at principal seat at Jodhpur in the case of Sood Enterprises v. Union of India (D. B. Civil Writ Petition No. 1698 of 1989 decided at Jodhpur on November 30, 1990), examined the validity of sub-rule (2) of rule 29. The challenge was also raised there on similar ground. Though, the two Patna cases do not appear to have been referred before the learned court, but we have already dealt with the aforesaid two cases in the earlier part of this order and have said that they are not applicable so far as the present case of sub-rule (2) of rule 29 is concerned. The Division Bench of this Court at Jodhpur in the aforesaid case of Sood Enterprises (D. B. Civil Writ Petition No. 1698 of 1989 decided on November 30, 1990) said that : " In order to determine the labour charges when the assessee does not keep proper books of accounts or where the labour charges could not have been determined, the procedure has been provided by this notification by amending sub-rule (2) of rule 29 of the Rajasthan Sales Tax Rules. A bona fide assessee, who maintains the proper accounts and where labour charges can be determined from the accounts of the contractor then these provisions are not applicable. These provisions are merely to assist the assessing authority to provide the mode of assessing the contractor where the labour charges could not be determined or where the accounts maintained by the assessee-contractor are not proper. In this view of the matter, sub-rule (2) of rule 29 cannot be said to be in any way, discriminatory or violative of the provisions of the Act. " WE are in agreement with the learned Judges and we are of the opinion that rule 29 (2) is a valid piece of legislation and we uphold invalidity. We will now take up the challenge to sub-rule (2) of rule 46 of the Rules which has also been extracted in the earlier part of this order. It does not appear to us that rule 46 (2) of the Rules was directly under challenge in the case of Sood Enterprises (D. B. Civil Writ Petition No. 1698 of 1989 decided on November 30, 1990), though the validity of section 7 (2-C) of the Act was under challenge. In none of the writ petitions before us, there is challenge to sub-section (2-C) of section 7 of the Act. The said provision provides that in case of a works contract, the tax may he deducted in such manner and under such circumstances as may be prescribed, from every bill of payment to a contractor. This Court at Jodhpur in the aforesaid case of Sood Enterprises (D. B. Civil Writ Petition No. 1698 of 1989 decided on November 30, 1990) has upheld the validity of section 7 (2-C) of the Act. The legislative competence of section 7 (2-C) of the Act can hardly he challenged and as said earlier there is no challenge to the said provision in these writ petitions. This is a machinery provision and such a provision has been recognised as a mode of recovery of tax in almost all taxing statutes. A reference in this connection may be made to section 194 (C) of the Income-tax Act, 1961. Mr. Singhal, learned counsel for the petitioner with reference to section 194 (C) has contended that there is a sub-section in the aforesaid section which gives a jurisdiction to the assessing authority not to deduct any amount from the running bills but there is no such provision so far as section 7 (2-C) of the Act as well as sub-rule (2) of rule 46 of the Rules are concerned. He further contends that the turnover of a dealer only after certain limits is taxable, but so far as sub-rule (2) of rule 46 is concerned, it applies to all the works contract irrespective of the fact whether any tax which may or may not he due, provides the deduction of certain percentage from the running bill, which is arbitrary and should he struck down. It was further contended that the amount which is to he deducted from the running bills and besides the deemed sale which takes place of goods by virtue of clause (29-A) of article 366 of the Constitution, there are other amounts also which a contractor incurs, therefore, certain percentage cannot he deducted and should be correlated to sale price of those goods. Mr. Bafna, learned counsel for the Revenue, contends that such a provision under sub-rule (2) of rule 46 of the Rules has been incorporated in order to safeguard the interest of Revenue and he further contends that sufficient safeguards have been provided in the Act and the Rules and in this connection learned counsel refers to section 23-BB of the Act and rule 38-D of the Rules. A look at rule 38-D of the Rules will show that it was inserted by Notification No. F. 5 (76)FD/gr. IV/89-26 dated June 27, 1990. Its sub-rule (1) provides that any person or dealer claiming refund under section 23-BB of the Act, in the case of his being not a registered dealer, shall apply to the Commercial Taxes Officer of the area in whose jurisdiction he ordinarily resides, and in the case of his being a registered dealer, shall apply to the Commercial Taxes Officer in whose circle he is registered for refund and such Commercial Taxes Officer after making such enquiry as he deems proper shall allow the refund by issuing a refund voucher in form ST 13. Its sub-rule (2) provides that the application for refund under sub-rule (1) shall be made before the appropriate Commercial Taxes Officer within a period of four years from the date of payment, collection or deduction of tax, as the case may be. Section 23-BB was inserted in the statute book by the Rajasthan Sales Tax (Amendment) Act, 1990, and it deals with refund in certain other cases, and a perusal of the aforesaid section 23-BB will show that where an amount of tax is collected at any cheek-post from any person who is not registered under the Act and such tax is not found payable by him, or where any tax is deducted in any manner by an awarder from any bill of payment to a contractor who is not liable to pay tax under the Act or where an amount of set-off, which a registered dealer is entitled to, is not fully adjusted against the amount of tax payable by such dealer, the amount so collected or deducted or unadjusted shall be refundable in the prescribed manner. The "prescribed manner" is provided in section 23 and a perusal of that section will show that the amount is refunded to a dealer either by cash payment or by deduction of such excess from the amount of tax due in respect of any other period and it will carry an interest at the rate of 12 per cent per annum with effect from the date of deposit of the amount to be refunded, as per sub-section (2) of section 23. It can therefore, be said that the provisions contained in sub-rule (2) of rule 46 are machinery provisions and it prescribes a mode of recovery to cheek the evasion of tax. It will be seen that the rate of tax is much more as the various goods which are used in the execution of the works contract and only 2 per cent to 3 per cent is deducted from the running bills. The contractor becomes liable to pay tax on the goods or materials the moment they are used in the construction. In other words, tax becomes payable the moment goods are used and it is not necessary to wait till the final bill is prepared for the entire work. The said provision is reasonable. In the case of Sood Enterprises (D. B. Civil Writ Petition No. 1698 of 1989 decided on November 30, 1990) while dealing with section 7 (2-C), though not dealing with sub-rule (2) of rule 46 of the Rules, this Court at Jodhpur said that : " Section 7 (2-C) of the Rajasthan Sales Tax Act deals with the deduction of the tax at source. Thus, section 7 (2-C) of the Act is being a provision which provides the machinery how the tax is to be recovered and therefore such provision should be construed in a manner which makes it workable. Section 7 (2-C) of the Act provides only a mode of collection of tax at source and when the Legislature thought it proper to provide a particular mode for collection of the tax then it cannot he said that section 7 (2-C) of the Act is outside the legislative competence of the Legislature. The method of collection of tax or deduction of tax at source does not affect the essence of the duty but it only relates to the machinery of collection for administrative purposes,. " It will therefore be clear that the aforesaid provision is a machinery provision, meant to secure the Government revenue and to cheek the evasion of payment of tax. It is well-known that the contractors are also from outsiders of the State, and the possibility cannot be excluded that in their cases and even in cases of contractors from within the State recovery of tax after assessment may not always be smooth. In our opinion, the provisions of rule 46 (2) of the Rules are reasonable and we hold accordingly. Consequently, we find no merit in any of these writ petitions. They are hereby dismissed with no order as to costs. Stay orders, if any, shall stand vacated. Writ petitions dismissed . ;