Sales tax on restaurant supplies turns on dominant object: sale of food or incidental service, with fresh factual inquiry required.

A plea going to the root of sales tax liability may be raised for the first time in revision, because there is no estoppel against law and a subsequent declaration of law can be relied on. In restaurant transactions, the controlling inquiry is whether the dominant object is sale of food, with service only incidental; that factual assessment must be made on the proper legal basis. Where that determination has not been properly undertaken, the matter must be reconsidered by the revising authority, and taxability decided afresh on the true facts.

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Issues: (i) Whether the assessee could raise for the first time in revision the plea that no sales tax was exigible on the turnover of cooked food, sweets, namkin, tea and cold drinks served at its premises. (ii) Whether, in light of the Supreme Court's clarification in the restaurant-caterer line of cases, the transaction required fresh factual determination as to whether the dominant object was sale of food or rendering of services.

Issue (i): The plea raised in revision went to the root of liability under the sales tax law and therefore to jurisdiction. A legal objection affecting the very existence of tax liability is not barred merely because it was not urged earlier. There can be no estoppel against law, and the assessee was entitled to rely upon the subsequent declaration of law.

Conclusion: The objection to taxability could be raised for the first time in revision and was not barred on the ground of waiver or estoppel.

Issue (ii): The earlier Supreme Court ruling on restaurant transactions was explained as turning on its facts. The decisive inquiry was whether, on the facts, the dominant object of the transaction was sale of food with services being merely incidental, in which case sales tax would be attracted. Since that factual question had not been determined on the proper legal basis, a fresh examination by the revising authority was necessary.

Conclusion: The matter required reconsideration by the revising authority to determine the true nature of the transaction and whether sales tax was leviable.

Final Conclusion: The revision succeeded and the matter was sent back for a fresh decision in accordance with law, with the taxability issue left to be determined on the proper facts.

Ratio Decidendi: A plea that goes to the root of tax liability and the dominant nature of a restaurant transaction may be raised at the revision stage, and sales tax is attracted only where the sale of food is the dominant object and the rendering of services is merely incidental.

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