Dominant object test for restaurant supplies: food sales remained taxable where service was merely incidental.

Food and drink supplied in an eating house or restaurant were held taxable as sales where the dominant object was sale of food and the service element was merely incidental. The assessing authority's undisturbed factual finding that the dealer's transactions were predominantly counter-sales with negligible service was decisive. The Forty-sixth Amendment and validation provisions applied only where the supply was by way of service and could not displace a factual finding of sale with minimal service content. The assessment period being prior to 2 February 1983 did not alter that legal position, and the assessment order was restored in favour of the Revenue.

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Issues: Whether the supply of food and drink by the dealer was a sale exigible to tax or a supply by way of service, and whether the blanket reliance on the Forty-sixth Amendment could displace the finding that the service element was negligible.

Analysis: The assessment related to a period prior to 2 February 1983. The assessing authority had, after remand, recorded a factual finding that the dealer's transactions were predominantly counter-sales and that the element of service was negligible. That finding remained undisturbed. On the law, the dominant object test governed such transactions: where food is supplied in an eating house or restaurant and the substance of the transaction is a sale of food while the rendering of service is merely incidental, the transaction is taxable. The Forty-sixth Amendment and the validation provisions became relevant only where the supply was by way of service; they did not assist a case where the facts showed a sale with negligible service element.

Conclusion: The transactions were exigible to sales tax and the impugned order could not govern the case; the assessing authority's order was restored, in favour of the Revenue.

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