Case: Union Of India Vs. Central India Machinery Manufacturing Co. Ltd. & Others

SARKARIA, J. 1. Whether, on the facts of this case, the contract dated June 15, 1968, between the Union of India and the Central India Machinery Manufacturing Company Ltd. (Wagon & Structural Division), Bharatpur (hereinafter called the company), for the manufacture and supply of wagons, was a contract of sale or a woks contract, is the principal question that falls to be determined in this appeal by certificate, filed by the Union of India against a judgment dated January 31, 1969, of the High Court of Rajasthan. It arises out of these facts : 2. The company, respondent No. 1 herein, entered into a contract No. 67/RS(I)/954/15/396 dated June 15, 1968, with the Union of India through the Railway Board for the manufacture and supply of 258 BG Bogie covered BCX type wagons and 812 MG covered wagons of MBC type to the railways. The sales tax authorities of the State (respondent No. 3 herein) under the Rajasthan Sales Tax Act, levied the sales tax treating the contract as one of sale and delivery of wagons. Under a similar past contract, the appellant reimbursed the company the amount of sales tax for the wagons supplied by it to the appellant in the months of March and April, 1967. In March, 1967, the High Court of Mysore in the case of Hindustan Aeronautics Ltd., Bangalore Division v. Commissioner of Commercial Taxes, Mysore [Sales Tax Appeal No. 8 of 1966 decided on March 1, 1967 (Mysore High Court); Affirmed by the Supreme Court in [1972] 29 S.T.C. 438 (S.C.)], held that the contract for the supply of wagons to the Railway Board by HAL was in the nature of a works contract and therefore sales tax was not payable on such supplies. In view of this decision, the Railway Board by its letter dated June 7, 1968, informed the company that the money paid by it to the company, which was not deposited with the sales tax department, should be refunded because the real nature of the transaction was that of a works contract and not a sale or purchase and, therefore, the Railway Board was not liable to reimburse the company for the amount of sales tax, if any, paid by the company to the State of Rajasthan. While in reply to the Railway Board, the company contended that the contract was for sale of wagons and not a contract for works, it took a contrary position in its representation to the Commissioner of Sales Tax, Rajasthan. Instead of giving any relief, the sales tax department informed the company that it should stop purchasing material on the strength of form C under the Central Sales Tax Act. Such stoppage would have saddled the company with a further liability to pay tax at the enhanced rate of the purchase of materials used for the manufacture of wagons.The Commercial Taxes Officer provisionally assessed the company under section 7D of the Rajasthan Sales Tax Act on the sale of wagons to the Railway Board for the month of May, 1968, and served a demand notice for payment of Rs. 1, 91, 827.79 including Rs. 1, 899.29 as penalty. Since the company was registered as a dealer under the Sales Tax Act, it had to bear, in the first instance, the charges of the tax although its incidence normally passes on to the purchaser, in the absence of a contract to the contrary under the provisions of section 64(a) of the Sale of Goods Act. 3.By its letter of August 14, 1968, the Railway Board finally informed the company that, in future, it would not reimburse the company for the sales tax if paid by it in connection with the supply of wagons. The company thereupon invoked the writ jurisdiction of the High Court by a petition under article 226 of the Constitution. In the writ petition, the Commercial Taxes Officer, Special Circle, Jaipur, the Union of India through the Railway Board and the State of Rajasthan were impleaded as respondents. 4. The relief prayed in the petition was :"(1) That an appropriate order be made determining whether the contract in question is in the nature of a contract for sale of goods, or works contract. (2) That in the event of a finding that the contract is in reality a contract for sale the respondent-Union of India be prohibited from claiming refund from the petitioner of the sum of Rs. 1, 56, 703.20 lying in its hands for payment of sales tax. (3) ...................... (4) That an appropriate writ, directive or order be made directing the respondent-Union of India through the Railway Board to reimburse the petitioners in respect of sales tax for the purchases from May, 1968, onwards from month to months."The writ petition was contested by the Union of India, inter alia, on the ground that the contract in question was a contract for works and not a contract of sale. The State of Rajasthan and the Commercial Taxes Officer in their joint reply contended that the contract was one for sale of wagons." 5. At the final hearing before the High Court all the parties requested the court to resolve the dispute in the exercise of its extraordinary jurisdiction under article 226 of the Constitution, notwithstanding the availability of an alternative remedy. The court, in consequence, proceeded to decide the dispute on merits. After examining in detail the terms and conditions of the contract as disclosed by the relevant documents on the record, the High Court took the view that the contract in question was a contract for the manufacture and sale of wagons to the Union of India by the company and, as such, sales tax was payable on these transactions. It thus decided the main issue against the Union of India and allowed the writ petition. 6. Hence this appeal by the Union of India. 7. The question, whether a contract is one for sale of goods or for executing works or rendering services, is largely one of fact, depending upon the terms of the contract, including the nature of the obligations to be discharged thereunder and the surrounding circumstances. It is, therefore, necessary to examine the terms and conditions of the contract in question. 8. There is no consolidated contract deed formally executed by the parties, on record. There are, however, several documents, including the correspondence between the parties, which embody the terms and conditions of the contract. 9. By its letter No. 67/RS(I)/954/15 dated December 23, 1967, and letter dated June 15, 1968, the Railway Board communicated to the company, the formers acceptance of the offer made by the company in its earlier letters, including the letter dated December 12, 1967, to manufacture and supply, B. G. Bogie covered wagons, BCX type and M.G. covered wagons MBC type. The number of wagons to be supplied and the price per wagon of each type were indicated in these letters.aragraph 2 of the letter dated December 23, 1967, stated :"2. Terms and conditions. - The contract shall be governed by the General Conditions of Contract A5-51 (revised) in so far as these are not inconsistent with the Special Conditions of Contract attached as per annexure A and those given in paras 3 and 7 below." Paragraphs 3 to 6 of the letter provide as under :"3. Delivery. - The delivery of the stock f.o.r. your works siding is required to be completed by 30-6-69. 4. Packing of axle-boxes. - Packing of axle-boxes (wherever necessary) will be done by Western Railway. No packing charges on account of the same will be received from you. 5. Inspecting authority. - Joint Director (I & L), R.D.S.O., Calcutta, or his representative shall constitute the Inspecting Authority for the inspection of stock built by you against this order. 6. Accounting and payments. - F.A. & C.A.O., Northern Railway, New Delhi, will maintain accounts and arrange all payments." Para 7 dealt with "material escalations", while in para 8 it was expressed that the order was being issued in the name of the President of India. Now the salient Standard Conditions referred to in paragraph 2 of this letter may be seen. Conditions 1 and 2 are as follows : "1. The purchaser means the President of India in the case of carriage underframes and goods wagons (hereinafter called vehicles) ordered for Indian Railways. 2. The work includes materials of every kind ........" Standard Condition 15 is crucial and may be extracted in full. "15. System of payment. - Payment for completed vehicles delivered by the contractor shall be made it two instalments, viz., 90 per cent on completion and 10 per cent as provided in paragraph (2) of this clause. The procedure for such payments will be as follows : (1) The contractor on receipt of a certificate signed by the Inspecting Officer (whose decision shall be final) to the effect that one or more vehicles have been completed will submit to the purchaser on account bill for 90 per cent of the value of vehicles in question, together with the completion certificate, (sic) the purchaser will pay the 90 per cent bill, and on payment of this bill the vehicles in question will become the property of the purchaser. (2) The balance of 10 per cent shall be treated as security for the due fulfilment of the contract and the contractor shall be entitled to receive payment of the balance of 10 per cent on vehicles as completed on his receiving a certificate from the purchaser to the effect that the actual delivery of the vehicles in question has been taken, that the delivery was made in due time and that the contract has been duly fulfilled in every respect in so far as it related to the completed vehicles." Condition 16 lays down that if the "defect arises from inferiority of material or workmanship, or from imperfect protection or other default on the contractors part", the Railways shall be at liberty to ask the contractor to remedy the defect and deduct from any money due to the contractor. The Special Conditions of Contract contained in annexure A to the letter dated December 23, 1967, are as under : "SPECIAL CONDITIONS 1.3. Material escalations. - Adjustments due to variations in the cost of material will be confined to the variations in the prices of steel at Col. 1 rate though Government action for controlled categories and those fixed by J.P.C. of decontrolled categories of steel. The escalation would be allowed in respect of such of the quantities of the material which were purchased and paid for the manufacture of wagons on order after the variation in price over the base date and subject to examination of the actual amounts paid for the supply of such tonnage of steel which is considered reasonable for the manufacture of the wagons on order and for which prices have varied over the base date whether supplied to the contractor or sub-contractor 3. Specifications and drawings. - The stock shall be built conforming to specifications and drawings indicated in the order which are obtainable on payment from the Research, Design and Standards Organisation, Lucknow, with such modifications as may be required or approved by the Railway Board, from time to time during the execution of this contract. The basic price shall have reference to the specification shown in the order. Any modification to specification or design shall be subject to price adjustment over and above the basic price ......" Special Condition 4 is important. A good deal of arguments was made as to whether 90 per cent advance made under this condition should be taken as payment towards the price of the material or towards the price of the wagons. This condition reads : "4. Terms of payment. - (a) On account payment up to 90 per cent of the value of steel and other raw materials procured by the firm for this order will be made against such materials, on its receipt in the firms works, on production of a certificate to that effect from the concerned officer of the Inspection and Liaison Organisation and on the firm furnishing necessary indemnity bond to the paying authority. Note : On account payment will be permissible only on steel procured according to Joint Director (Iron & Steel), Calcuttas planning after taking into consideration any steel offered from the floating stock held by the railways. If such offers are refused and steel of similar quality is obtained from other sources such quantities will be excluded from on account payment. The claim for on account payment will be accompanied by a further certificate that similar steel has not been offered from the floating stock held by the Railways and refused by the wagon builders.(b) Payment of 90 per cent of the full contact price less on account payment already made vide (a) above will be made on production of inspection certificate for each completed wagon. (c) Payment of the balance 10 per cent of the contract price will be made on the certification by the consignee-Railways that wagons have been received in complete condition and in good working order, provided that the payments so made shall be provisional and subject to adjustment and finalisation by deduction of rebate in accordance with provision of clause 1.4." The other material Special Conditions are : "5. Use of raw materials secured with the Government assistance. - Where any raw materials for the execution of the contract are procured with the assistance of Government either by issue from Government stock or purchase under arrangements made or permit(s) or licence(s) issued by Government, the contractor shall hold the said materials as trustee for Government and use such materials economically and solely for the purpose of the contract against which they are issued and not dispose of them, without the permission of the Government and return, if required by the purchaser, all surplus or unserviceable materials that may be left with him after the completion of the contract or at its termination for any reason whatsoever, on his being paid such price as Government may fix with due regard to the conditions of the materials. The freight charges for the return of the materials according to the directions of the purchaser shall be borne by the contractor, in the event of the contract being cancelled for any default on his part. The decision of Government shall be final and conclusive. 10. Sales tax. - If and when State and inter-State sales tax on the stock on order becomes payable under law such payments will be reimbursed by the Railway Board. The Railway Board will not, however, be responsible for the payments of sales tax paid under misapprehension of law. No sales tax on materials including steel or components will be reimbursed by the Railway Board."The material part of the indemnity bond, which was subsequently executed by the company in connection with the contract, provides : "Whereas under Railway Boards order No. 67/RS(I)/954/15 dated 23-12-1967, the said contractor has been given the contract for manufacture of 258 Nos. B.G. Covered Wagons BCX type with Transition type Centre Buffer couplers at both ends and 812 numbers M.G. Covered Wagons MBC type (1968-69 R.S.P.) at Bharatpur. And whereas advance payments are to be made by the Railways to the contractor against Railway Boards said order ......... That the contractor shall hold at his works at Bharatpur and/or at the works of his sub-contractor the stores and articles of the Railways in respect of which advance may be made to him against the said order. That the said stores and articles shall be such as are required for the execution of the above contract and the advance made to him by the Railways is without prejudice to the provision of the contract and is subject to inspection and rejection of the stores and any advance made against stores and articles rejected or found unsatisfactory on inspection shall be refunded immediately to the Railways. That the contractor shall be solely responsible for the safe custody and protection of the said stores and articles against all risks till they are duly delivered to the Railways or as they may direct. The said articles and materials shall at all times be open to inspection of any officer authorised by the Railways. Now these presents witnesseth that the contractor .......... hereby undertakes to indemnify the Railways, should any loss or damage or deterioration occur in respect of the said stores and articles while in his possession or in the possession of his sub-contractors or if any refund becomes due to the Railways without prejudice to any other remedies available, the Railways may also deduct such amount from any sums due, or any sum which at any time hereinafter may become due to the contractor .........."Clause (o) of section 2 of the Rajasthan Sales Tax Act, 1954, defines "sales". It says : "Sale, with all its grammatical variations and cognate expressions, means any transfer of property in goods for cash or for deferred payment or for any other valuable consideration, and includes a transfer of goods on the hire-purchase or other system of payment by instalments Thus, transfer of property in goods for a price is the linchpin of the definition. Under section 4 of the Sale of Goods Act, 1930, also, in the definition of the term "sales" stress is laid on the element of transfer of property in the goods. According to the Roman jurists, also, the purport of a contract of sale is that the seller divests himself of all proprietary right in the thing sold in favour of the buyer. It is this requisite which often distinguishes a contract of sale of goods from a contract for work and services. Even so, the difficulty of distinguishing between these two types of contracts is an age-old one. It was much debated even by the Roman jurists (see Inst. III, 24, 4, and De Zaluete, The Roman Law of Sale, pp. 15, 16). Difficulty has also been felt in England and other common law jurisdictions to the effect of a contract to make a chattel and deliver it when made. Generally, such a contract is one of sale of chattel, but not always. Jurists have differed much and striven much about the test for distinguishing between these two types of contracts. Since each contract presents its own features and imponderables it has not been possible to devise an infallible test of universal application. According to Pollock & Mulla, "the test would seem to be whether the thing to be delivered has any individual existence before delivery as the sole property of the party who is to deliver it". If the answer is in the affirmative, it is a "sale" of the thing, otherwise not. Another learned author enuciates that "the general rule deducible from the cases seems to be that if the main object of the contract is the transfer from A to B, for a price, of the property in a thing in which B had no previous property, then the contract is a contract of sale" (see Chalmers Sale of Goods, 16th Edn., page 52). The broad criteria for distinguishing between these two types of contracts have been neatly summed up in Halsburys Laws of England (3rd Edn., Vol. 34, page 6) thus :"A contract of sale of goods must be distinguished from a contract for work and labour. The distinction is often a fine one. A contract of sale is a contract whose main object is the transfer of the property, in and the delivery of the possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour. The test is whether or not the work and labour bestowed end in anything that can properly become the subject of sale; neither the ownership of the materials, nor the value of the skill and labour as compared with the value of the materials is conclusive, although such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of a chattel." 10. Let us now apply the above criteria to the contract in question. The contract is expressly one for the manufacture and supply of wagons for a price. Price has been fixed taking the wagon as a unit. Payment of the price is made for each vehicle on its completion and delivery by the contractor to the purchaser, who is described as the Union of India acting through the Railway Board. Such payment is made in two instalments, viz., 90 per cent of the value of the vehicle on completion against an "on account" bill, together with the completion certificate from the Inspecting Officer appointed by the Railway Board, and the balance of 10 per cent after delivery. If clause (1) of Standard Condition 15 is not inconsistent with anything in the Special Conditions - and as we shall presently notice it is not so - it clinches the issue inasmuch as it declares in unequivocal terms the intention of the contracting parties that on payment of the 90 per cent of the value, "the vehicles in question will become the property of the purchaser". Prima facie, the contract in question has all the essential attributes of a contract of sale of movables. That is to say, here is an agreement to sell finished goods manufactured by the seller (company) for a price, the property in the goods passing to the purchaser, on completion and delivery pursuant to the agreement.Mr. Mehta, the learned counsel for the appellant, contended that what clause (1) of Standard Condition 15 appears to convey about the transfer of the property in the completed vehicle stands inferentially negated and superseded by the terms of the Special Conditions and the indemnity bond to which the Standard Conditions are subject. It is urged that under the Special Conditions read with the indemnity bond the property in the raw material purchased by the company for the construction of the wagons, passes to the Railway Board as soon as the latter advances 90 per cent of the value of such material, which thereafter is held by the company merely as an agent or trustee for the Board. Our attention has been invited to Special Condition 4 under which "on account" payment up to 90 per cent of the value of "steel and other materials" procured by the company for this order "will be made against such materials, on production of a certificate from the officer of the Inspection and Liaison Organisation and on furnishing necessary indemnity bond to the paying authority". We are also adverted to the Note under clause (a) of that condition, according to which, "on account" payment will not be permissible against steel procured by the company from a source other than the floating stock held by the railways, except when an offer to procure it from that source is refused. Counsel has also referred to Special Condition 5 which obligates the contractor to hold "as trustee for Government" any raw materials for the execution of the contract procured with the assistance of Government either by issue from Government stock or purchase under a arrangements made or permit(s) or licence(s) and to "use such materials economically and solely for the purpose of the contract against which they are issued and not dispose of them, without the permission of the Government". Mr. Mehta further pointed out that under Special Condition 6, other essential components, viz., wheelsets for all the stock (and roller being axle-boxes and C.B. couplers wherever applicable) are supplied to the contractor free of cost f.o.r. against a proper undertaking for their safe custody. Counsel further took us through the contents of the indemnity bond and placed special emphasis on its clause :"That the contractor shall hold at his works at Bharatpur and/or at the works of his sub-contractors the stores and articles of the Railways in respect which advance may be made to him against the said order." From a conjoint reading of Special Conditions 4, 5, 7 and the indemnity bond it is sought to be spelt out that all the raw materials and components used in the manufacture of the wagons, belonged to the Railways Board; such materials were either procured under Special Condition 4 against 90 per cent "on account" payment which should be taken as a payment towards the price of the material purchased and held by the company on behalf of the Railway Board, or procured under Special Condition 6 free of cost. It is maintained that since purchases of raw material against 90 per cent "on account" payment were made by the company on behalf of and/or the Railway Board, that was why in the indemnity bond, the "stores and articles" in respect of which the advance has been made by the Railway Board, are described as "of the railways". It is further submitted that in view of the facility available to the contractor, there was little or no possibility of any materials other than those procured against 90 per cent "on account" payment, or supplied free of cost by the railways under Special Condition 6, being used in the manufacture of the wagons by the company. In sum, the proposition propounded is that since the raw materials and components used in the manufacture of a wagon under the terms of the contract belonged to the Railway Board, the wagon produced had, at the time of its completion and delivery, no individual existence as the sole property of the company.11. Although counsel has not specifically cited form Pollock & Mullas commentary on the Sale of Goods Act, the test sought to be invoked is the same which has been suggested by the learned authors. Judged by this test, proceeds the argument, the contract in question is not a contract of sale of wagons, but one for work and labour.In support of his contentions, Mr. Mehta relies on three decisions of this court :"Commissioner of Commercial Taxes, Mysore v. Hindustan Aeronautics Ltd., Bangalore Division [[1972] 29 S.T.C. 438 (S.C.); [1972] 2 S.C.R. 927]; State of Gujarat v. Kailash Engineering Co. (P.) Ltd. [[1967] 19 S.T.C. 13 (S.C.)] and the other in State of Gujarat (Commercial of Sales Tax, Ahmedabad) v. Variety Body Builders [[1976] 38 S.T.C. 176 (S.C.); A.I.R. 1976 S.C. 2108]. According to the counsel, the terms and conditions of the contract which came up for consideration in Hindustan Aeronautics [[1972] 29 S.T.C. 438 (S.C.); [1972] 2 S.C.R. 927] were substantially the same, and there it was held that the contract was one for work and not of sale of vehicles. On the other hand. Dr. L. M. Singhvi, the learned Advocate-General appearing for the State of Rajasthan, and Shri S. T. Desai, the learned counsel appearing for the company, have pointed out that there is nothing in the Special Conditions which militates against or is inconsistent with Standard Condition 15; that the Special Conditions, read as a whole, show beyond all doubt that the raw materials purchased by the company against 90 per cent advance payment do not become the property of the Railway Board or the Union of India, because under the express terms of the contract, such advance payment is made towards the "contract price" of the wagons and not towards the price of the materials purchased by the company, although to safeguard the interest of the Railway Board some restrictions have been placed with regard to the used and disposal of those materials on the company who had become owner thereof by purchase for a price. In refutation of the stand taken by the appellant, it is asserted that under the terms and conditions of the contract, it is not obligatory for the company to purchase all the materials required for the construction of the wagons from the Government stores or with the assistance of the Government against 90 per cent advance payment. It is submitted that in accord with the terms of the contract, lot of raw material against which no such advance was taken, was purchased by the company and used in the construction of the wagons. With our permission, an affidavit has been filed before us on behalf of the company to support this assertion of fact.Dr. Singhvi has further submitted that the terms of the contract in question are materially different from those which were in question in Hindustan Aeronautics case [[1972] 29 S.T.C. 438 (S.C.); [1972] 2 S.C.R. 927] and in Variety Body Builders [[1976] 38 S.T.C. 176 (S.C.); A.I.R. 1976 S.C. 2108] and consequently those decisions cannot govern the instance case. According to the counsel, the instant case is more in line with the decisions of this Court in Patnaik and Company v. State of Orissa [[1965] 16 S.T.C. 364 (S.C.)] and T. V. Sundram Iyengar & Sons v. State of Madras [[1975] 35 S.T.C. 24 (S.C.)]. The first question for consideration is : whether all the raw materials used in the construction of the wagons are those against the 90 per cent value of which advance is drawn by the company from the railways under Special Condition 4 ? In this connnection, it may be noted that there is nothing in the terms and conditions of the contract which expressly or by necessary implication binds the company to procure and use only those raw material for which advance has been drawn by it from the railways. There is positive evidence (i.e., unrebutted affidavit of Shri C. P. Gupta, Senior Accounts and Finance Officer of the company) that in execution of the contract in question, the company has used such raw material also against which no advance was drawn from the railways. The raw material used in the manufacture of the wagons may be split up into three categories : 1. Wheel sets, axle-boxes supplied by the railways free of cost (vide Special Condition 6). 2. Raw materials such as steel against which advance was drawn. 3. Raw materials against which no such advance was drawn." 12. The first category wad admittedly the property of the railways. There can be no dispute that the third category was, at all times material, the property of the company. Controversy coverages on category 2. Does such material procured by the company, against 90 per cent advance, become the property of the railways before its use in the manufacture of the wagons ? Should the "on account" payment received from the railways by the company under Special Condition 4, on 90 per cent of the value of the materials, be taken as payment towards the price of the materials ? Or, should it be taken as payment towards the price of the wagons ?Answers to these questions turn on a construction of the terms and conditions of the contract. A correct construction, in turn, depends on a reading of the Standard and Special Conditions as a whole. It would not be proper to cull out a sentence here or a sub-clause there and read the same in isolation. Again what is required is not a fragmentary examination in parts but an overall view and understanding of the whole. Again, it is the substance of the documents constituting the contract, and not merely the form which has to be looked into. 13. The real intention of the contracting parties is primarily to be sought within the four corners of the documents containing the Standard and Special Conditions of Contract. If such intention is clearly discernible from these documents, it will not be proper to seek external aid from the stereotyped indemnity bond which is not only collateral but also posterior in point of time to the contract. It will bear repetition that there is no conflict or inconsistency between Standard Condition 15 and the special Conditions. The terms and conditions of the contact, read as a whole, indubitably lead to the conclusion that the property in the materials procured or purchased by the company, against the 90 per cent value of which advance is taken from the railways, does not, before their use in the construction of the wagons, pass to the railways. Reasons for arriving at this conclusion are as under :"(i) Clause (a) of Special Condition 4 which provides for "on account" payment up to 90 per cent of the value of steel and other raw materials procured by the firm (company) is to be read with clause (b) which makes it clear that such "on account" payment is a part of the "full contract price" "for each completed wagon". (ii) Condition 5, while imposing restrictions as to the use and disposal of materials against which advance is taken, further gives a pre-emptive right to the Government to purchase all surplus or unserviceable materials from the company on its "being paid such price as Government may fix with due regard to the condition of the material". If the materials belonged to the Government or the railways, no question of purchasing the same from the company could arise. No one can be a seller and purchaser of the same property at the same time. (iii) Special Condition 10 provides in unequivocal terms that "no sales tax on materials including steel or components will be reimbursed by the Railways Board". This condition postulates two things : First, that the company becomes the owner of the materials by purchase and, therefore, in that capacity becomes liable to the charge of sales tax which it cannot, because of this covenant to the contrary, pass on to the President/Railway Board. Second, such steel and components are not the property of the railways. They are not supplied by the President/railways free of charge under Special Condition 6. (iv) There is no condition or term in the contract that the material purchased by the company after drawing "on account" payment to the extent of 90 per cent of the value of the material shall become the property of the railways. (v) Standard Condition 16 provides that if within twelve months after delivery, any "defect arises from inferiority of material or workmanship" the company shall be liable to remedy the defect, and to deduction of money due to it. This condition also presupposes that the inferior material used was not the property of the railways but of the company. (vi) The stipulation in the indemnity bond making the company responsible for safe custody and protection of the "stores and articles" against all risks till they are duly delivered to the railways, or as they may direct, nor the use of the words "of the railways", therein, in our opinion, in the face of clear conditions of the contract, is a ground to hold that the materials purchased by the company for construction of the wagons would become the property of the railways immediately on advance of an amount equal to 90 per cent of their value under Special Condition 4.As rightly pointed out by the High Court the word "of" in the expression "of the railways" used in the indemnity bound in the context of "stores and articles" appears to have been loosely used. Moreover these "stores and articles" might include the wheelsets and articles supplied by the railways free of charge from its stores under Special Condition 6. The expression "of the railways" might have been possibly used in the context of such components belonging to the railways. Furthermore under condition 5, in respect of all surplus material, the railways had been given a right of pre-emption. Even so, much capital cannot be made out of the use of this loose expression in the indemnity bond, when the conditions embodied in the contract documents, read as a whole, clearly show that the property in the materials purchased by the company with the assistance of the railways/Government does not pass to the railways." 14. The upshot of the above discussion is that with the exception of wheelsets (with axle-boxes and couplers), substantially all the raw materials required for the construction of the wagons before their use belong to the company and not to the President/Railway Board. In other words, with the exception of a relatively small proportion of the components supplied under Special Condition 6, the entire wagon including the material at the time of its completion for delivery is the property of the company. This means that the general test suggested by Pollock and Chalmers has been substantially, albeit not absolutely, satisfied so as to indicate that the contract in question was one for the sale of wagons for a price, the company being the seller and the President/Railway Board being the buyer. It is true that technically the entire wagon including all the material and components used in its construction cannot be said to be the sole property of the company before its delivery to the purchaser. But as pointed out by Lord Halsbury in the above-quoted passage from his renowned work neither the ownership of the materials nor the value of the skill and labour as compared with the value of the materials used in the manufacture is conclusive. Nevertheless, if the bulk of the material used in the construction belongs to the manufacturer who sells the end-product for a price that will be a strong pointer to the conclusion that the contract is in substance one for the sale of goods and not one for work and labour.Be that as it may clause (1) of Standard Condition 15 dispels all doubt with regard to the nature of the contract. This clause stipulates in unmistakable terms that as soon as a vehicle has been completed, the company will get it examined by the Inspecting Officer and submit to the purchaser an "on account" bill for 90 per cent of the value of the vehicle and within 14 days of the receipt of such bill together with a certificate of the Inspecting Officer, the purchaser will pay 90 per cent bill and on such payment, the vehicle in question will become the property of the purchaser. There could be no clearer expression of the intention of the contracting parties than this clause that the contract was, in substance, one for the sale of manufactured wagons by the company for a stipulated price. 15. We would therefore affirms the finding of the High Court on this point. 16. The ratio of Hindustan Aeronautics [[1972] 29 S.T.C. 438 (S.C.); [1972] 2 S.C.R. 927] is not applicable. The present case has some special features which did not figure in Hindustan Aeronautics [[1972] 29 S.T.C. 438 (S.C.); [1972] 2 S.C.R. 927]. In that case, from the terms and conditions of the contract then under consideration and the report of the Commercial Tax Officer, these facts appear to be well-established :"(i) The material used in the construction of coaches before its use was the property of the railways. (ii) There was no possibility of any other material being used excepting which belonged to the President/railways before its use in the construction. This fact was borne out from the report of the Commercial Tax Officer. (iii) Further in the contract in question in that case, there was no term corresponding to clause (1) of Standard Condition 15. This Court therefore found that the difference between the price of a coach and the cost of material could only be the cost of services rendered by the assessee. Such is not the case here. The bulk of the material used in the construction of the wagons, as already discussed above, in the instant case, belongs to the company before its use.State of Gujarat (Commissioner of Sales Tax, Ahmedabad) v. Variety Body Builders [[1976] 38 S.T.C. 176 (S.C.); A.I.R. 1976 S.C. 2108] cited by Shri Mehta, also is clearly distinguishable from the facts of the instant case. There, the bulk of the materials used in the construction of coaches was supplied by the railways. Even labour was supplied by the railways. The contractor mainly contributed his labour and skill to manufacture the end-product, being the railway coaches, under the constant supervision and control of the railways. From the totality of the material terms and conditions in the agreement, in that case, it was not possible to hold that the parties intended that the contractor transferred the property in the coach to the railways after its completion. Reality of the transaction as a whole indicated that the contract was one for work and labour, while in the instant case the coverse is true." 17. The case before us is more in line with the decision of this Court in Patnaik and Company v. State of Orissa [[1965] 16 S.T.C. 364 (S.C.)]. The appellants therein had entered into an agreement with the State of Orissa for the construction of bus bodies on the chassis supplied by the Governor. The agreement provided, inter alia, that the appellants were responsible for the safe custody of the chassis from the date of their receipt from the Governor till their delivery and they had to insure their premises against fire, theft, etc., at their own costs. The appellants had to construct the bus bodies in the most substantial and workmanlike manner, both as regards materials and otherwise in every respect in strict accordance with the specifications. They had to guarantee the durability of the body for two years from the date of delivery. It was also provided that all works under the contract should be open to inspection by the Controller or officers authorised by him and such officers had the right to stop any work which had been executed badly or with materials of inferior quality, and on receipt of a written order the appellants had to dismantle or replace such defective work or material at their own cost. The builders were entitled to 50 per cent of the cost of the body building at the time of delivery and the rest one month thereafter. The question before the Constitution Bench of this Court was whether, on these facts, the contract was one for work or a contract for sale of goods. This Court held (by majority) that the contract as a whole was a contract for sale of goods and, therefore, the appellants were liable to sales tax on the amounts received from the State of Orissa for the construction of the bus bodies. In reaching at this conclusion the Court paid due regard to the fact that under that contract the property in the bus body did not pass to the Government till the chassis with the bus body was delivered at the destination to be named by the Controller. Till the delivery was made the bus body remained the property of the builder. This clinching circumstance prominently figures in Standard Condition 15 in the instant case also. 18.

Decision:
0[ds]The real intention of the contracting parties is primarily to be sought within the four corners of the documents containing the Standard and Special Conditions of Contract. If such intention is clearly discernible from these documents, it will not be proper to seek external aid from the stereotyped indemnity bond which is not only collateral but also posterior in point of time to the contract. It will bear repetition that there is no conflict or inconsistency between Standard Condition 15 and the special Conditions. The terms and conditions of the contact, read as a whole, indubitably lead to the conclusion that the property in the materials procured or purchased by the company, against the 90 per cent value of which advance is taken from the railways, does not, before their use in the construction of the wagons, pass to the railways. Reasons for arriving at this conclusion are as under :(i) Clause (a) of Special Condition 4 which provides for "on account" payment up to 90 per cent of the value of steel and other raw materials procured by the firm (company) is to be read with clause (b) which makes it clear that such "on account" payment is a part of the "full contract price" "for each completed) Condition 5, while imposing restrictions as to the use and disposal of materials against which advance is taken, further gives a pre-emptive right to the Government to purchase all surplus or unserviceable materials from the company on its "being paid such price as Government may fix with due regard to the condition of the material". If the materials belonged to the Government or the railways, no question of purchasing the same from the company could arise. No one can be a seller and purchaser of the same property at the same time(iii) Special Condition 10 provides in unequivocal terms that "no sales tax on materials including steel or components will be reimbursed by the Railways Board". This condition postulates two things : First, that the company becomes the owner of the materials by purchase and, therefore, in that capacity becomes liable to the charge of sales tax which it cannot, because of this covenant to the contrary, pass on to the President/Railway Board. Second, such steel and components are not the property of the railways. They are not supplied by the President/railways free of charge under Special Condition 6(iv) There is no condition or term in the contract that the material purchased by the company after drawing "on account" payment to the extent of 90 per cent of the value of the material shall become the property of the railways(v) Standard Condition 16 provides that if within twelve months after delivery, any "defect arises from inferiority of material or workmanship" the company shall be liable to remedy the defect, and to deduction of money due to it. This condition also presupposes that the inferior material used was not the property of the railways but of the company(vi) The stipulation in the indemnity bond making the company responsible for safe custody and protection of the "stores and articles" against all risks till they are duly delivered to the railways, or as they may direct, nor the use of the words "of the railways", therein, in our opinion, in the face of clear conditions of the contract, is a ground to hold that the materials purchased by the company for construction of the wagons would become the property of the railways immediately on advance of an amount equal to 90 per cent of their value under Special Condition 4.As rightly pointed out by the High Court the word "of" in the expression "of the railways" used in the indemnity bound in the context of "stores and articles" appears to have been loosely used. Moreover these "stores and articles" might include the wheelsets and articles supplied by the railways free of charge from its stores under Special Condition 6. The expression "of the railways" might have been possibly used in the context of such components belonging to the railways. Furthermore under condition 5, in respect of all surplus material, the railways had been given a right of pre-emption. Even so, much capital cannot be made out of the use of this loose expression in the indemnity bond, when the conditions embodied in the contract documents, read as a whole, clearly show that the property in the materials purchased by the company with the assistance of the railways/Government does not pass to the railwaysThe upshot of the above discussion is that with the exception of wheelsets (with axle-boxes and couplers), substantially all the raw materials required for the construction of the wagons before their use belong to the company and not to the President/Railway Board. In other words, with the exception of a relatively small proportion of the components supplied under Special Condition 6, the entire wagon including the material at the time of its completion for delivery is the property of the company. This means that the general test suggested by Pollock and Chalmers has been substantially, albeit not absolutely, satisfied so as to indicate that the contract in question was one for the sale of wagons for a price, the company being the seller and the President/Railway Board being the buyer. It is true that technically the entire wagon including all the material and components used in its construction cannot be said to be the sole property of the company before its delivery to the purchaser. But as pointed out by Lord Halsbury in the above-quoted passage from his renowned work neither the ownership of the materials nor the value of the skill and labour as compared with the value of the materials used in the manufacture is conclusive. Nevertheless, if the bulk of the material used in the construction belongs to the manufacturer who sells the end-product for a price that will be a strong pointer to the conclusion that the contract is in substance one for the sale of goods and not one for work and labour.Be that as it may clause (1) of Standard Condition 15 dispels all doubt with regard to the nature of the contract. This clause stipulates in unmistakable terms that as soon as a vehicle has been completed, the company will get it examined by the Inspecting Officer and submit to the purchaser an "on account" bill for 90 per cent of the value of the vehicle and within 14 days of the receipt of such bill together with a certificate of the Inspecting Officer, the purchaser will pay 90 per cent bill and on such payment, the vehicle in question will become the property of the purchaser. There could be no clearer expression of the intention of the contracting parties than this clause that the contract was, in substance, one for the sale of manufactured wagons by the company for a stipulated priceWe would therefore affirms the finding of the High Court on this pointThe case before us is more in line with the decision of this Court in Patnaik and Company v. State of Orissa [[1965] 16 S.T.C. 364 (S.C.)]. The appellants therein had entered into an agreement with the State of Orissa for the construction of bus bodies on the chassis supplied by the Governor. The agreement provided, inter alia, that the appellants were responsible for the safe custody of the chassis from the date of their receipt from the Governor till their delivery and they had to insure their premises against fire, theft, etc., at their own costs. The appellants had to construct the bus bodies in the most substantial and workmanlike manner, both as regards materials and otherwise in every respect in strict accordance with the specifications. They had to guarantee the durability of the body for two years from the date of delivery. It was also provided that all works under the contract should be open to inspection by the Controller or officers authorised by him and such officers had the right to stop any work which had been executed badly or with materials of inferior quality, and on receipt of a written order the appellants had to dismantle or replace such defective work or material at their own cost. The builders were entitled to 50 per cent of the cost of the body building at the time of delivery and the rest one month thereafter. The question before the Constitution Bench of this Court was whether, on these facts, the contract was one for work or a contract for sale of goods. This Court held (by majority) that the contract as a whole was a contract for sale of goods and, therefore, the appellants were liable to sales tax on the amounts received from the State of Orissa for the construction of the bus bodies. In reaching at this conclusion the Court paid due regard to the fact that under that contract the property in the bus body did not pass to the Government till the chassis with the bus body was delivered at the destination to be named by the Controller. Till the delivery was made the bus body remained the property of the builder. This clinching circumstance prominently figures in Standard Condition 15 in the instant case also.