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STATE OF GUJARAT (COMMISSIONER OF SALES TAX,

AHMEDABAD)

M/S. VARIETY BODY BUILDERS

April 26, 1976

(H. R. KHANNA AND P. K. GOSWAMI, JJ.]

Bon1bay Sales Tax Act-Contracts for sale of goods and works conrracts- J'ests for decidin!l works contracts.

The respondents entered into three written contracts with the Raihvays for the construction of railway coaches according to the design provided by them,

On the under-frames supplied by the Railways. The contractor was required C to make security deposit for the due fulfilment and completion of the contract which, in the event of breach, was liable to be forfeited and confiscated. Supply including n1anufacture, assembly, fitting, fixing and finishing of all constructional n1aterials and fittings including timber was by the contractor. The Railways were required to supply electric fitting~ Railway staff would work in association with the contractor's staff for installation of electrical equipment; Railway site was provided for the work and for no other purpose.

The_ Railways had the right of inspection at all times and of maintenance of control over standard D of workmanship requiring rectification of '\Vork and replacement of materials when ordered.

The Sales Tax Officer, holding that the transactions were salCs, charged the1n to tax. The respondents' appeal to the Assistant Commi3sioncr of Sales Tax. as also a revision application before the Deputy Cornmisioner of Sales Tax :-ind the Tribunal were unsuccessful. On reference, the High Court held that the contracts were works contracts. ,

Dismissing the appeals,

JJELD : (1) From the totality of the material terms and conditions in the agreement it is not possible to hold that the parties intended that the -contractor transferred the property in the railway coaches to the Railways after its coinpletion.

The essence of the contract or the reality of the transaction as a whole indicates that the contract was a contract for work and labour.

[139FJ

(2) The predominant element in the contract was the work and labour aspect and supply of materials was only accessory although the lnaterials \Vere definitely necessary for the execution of the work. The term that if the con- tractor died, his legal representatives would have no interest whatsoever in the agreement save in respect of a claim for the money due nnd for the r return of the security deposit, clearly showed that the contract was n works contract. The unfinished work became the property of the Raih~'ays and the legal representatives were entitled only to claim for the value of the \''Ork done.

Jn the event of the death of the contractor, there was no provision for the handing over of the unfinished coaches by the legal representatives to the Railways. In such an event the Railways automatically becaine the ov.ner

, of the unfinished property. (140 E-G)

T. Y. Sundaram Iyengar & Sons v. The State of Madras (1975) 35 STC 24 nd Patnoik and Company v. The State, of Orissa, (1965) 16 STC 364, di•ti1>. :uished.

Conimissioner of Con1mercial Taxes, Mysore v. Hindustan Aeronautics Ltd.,

(1972) 29 STC 438; State of Gujarat v. Kaila1h Engineerin~ Co, (1967) 1'.

STC 13; State of Madra,~ v.r Richardson & Cruddas Ltd., (1968) 21 STC 245: Go.emment of Andhra Pradesh v. Guntur Tobaccos Ltd., (1965) 16 240 and

Commissioner of &les Tax, M.P. v. Purshottani Premji, ( 1970) 16 STC 38, followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1492 and 1493 of 1971.

Appeals by Special Leave from the Judgment and Order dated the 7th and 9th November, 1970 of the Gujarat High Court at Ahrnedabad in Sales Tax Reference No. 5 of 1969.

S. T. Desai and M. N. Shroff; for the Appellants.

V. S. Desai!, Vimal Dave, Ram Phal, Ganpat Rai, (Mrs.) S/uif Sethi and (Miss) Kai/ash Mehta; for Respondent.

C The Judgment of the Court was delivered by

GOSWAMI, J.-This judgment will govern both the appeals.

These two apeals by special leave ar~ directed &gainst the common judgment of the Gujarat High Court in Sales Tax Reference No. 5 of J 969 relating to two periods, namely, (l) from 24th October, 1955 to 31st March, 1956 and (2) from 1st April, 1956 to 31st March, 1957.

The Tribunal had earlier delivered a common judgment in two revision applications No. 121 and No. 122 of 1961 and made a composite reference to the High Court under the Bombay Sales Tax Act stating the following question for answer :-

"Whether on the facts 1and in the circumstances of the case the three contracts for constmction of coaches on the under-frames supplied by the Railway Administration, the contracts containing similar terms were contracts for sale of goods and not works contracts?"

The facts appearing from the statement of case are .as follows

The respondent, M/s: Variety Body Builders, Baroda, entered int•> three contracts with the Western Railway Administration for construction of railway coaches on the umler .. frames supplied by fl~ said rarlway Administration.

The three comracts were reduced into writing ancl contained the terms ancl conditim1s under which the eontracts were to be performed. The first agreement dated September 17, 1954 was for construction of 25 N.G. coaches.

The second agreement dated July 11, 1955, was in respet of construction of 6 T.L.R. coaches. The third agreement dated January 14, 1956, was for coos· truction of 25 N.G. coaches.

The Sales Tax Officer held that the transactions relating to the construction of the said coaches were transactions of sales of these coaches by the respondent.

On that basis the respondent was assessed at Rs. 2,72,803/8/- for the first period and at Rs. 3,82,820/- for the second period. The respondent's

appeals to the Assistant Commissioner of Sales Tax were unsuccessful.

The re\1sion applications of the respondent before the Deputy Commissioner of Sales Tax and later before the Tribunal met with the

... '

• " '

oSame fate.

The Tribunal, however, referred the question of law as A

et out earlier to the High Court and the High Court answered the same in favour of the respondent and hence these appeals by special -leave.

The only question with which we are concerned in these appeals is whether the contracts entered into by the respondent with the Railway Administration for construction of railway coaches are contracts- B

for sak of goods or works contracts.

Since the three contracts are substantially similar the High Court .and the authorities below took note of the recitals of the third contract dated Jarman 14, 1956, and we will also take the same into consideration. "' ·

Mr. S. T. Desai appearing on behalf of the appellant and Mr.

Ram Phal appearing on behalf of the respondent took us through all the clauses of the agreement and pressed their rival viewpoints. Mr.

Desai submits that from the totality of the conditions laid down in 1he agreement the contract is one for sale, being transfer of property

in the railway bogies as a unit of goods and, therefore, the transaction is liable to Sales Tax. Mr. Ram Phal, on the other hand, relying on the same terms and conditions in the contract, submits that it is a pure 8nd simple worh contract and not a contract for sale of goods.

It is well-settled that when there is a written contract it will be 11ecessary for the Court to find out therefrom the intention of the parties executing the particular contract.

That intention has to be primarily gathered from the terms and conditiom which are agreed E upon by the parties. We will, therefore, immediately tum our attention to the agreement in question.

The preamble of the agreement shows that it is an agreement enterrd into between the Railway Administration and the respondent described as "the contractor''.

The first clause describes the "natu!'ll of work". It states "the contrnctor hereby agrees to undertake the building of 25 Nos. Narrow Gauge Third Class Bogie Coaches .... on I.R.S. under-frames to be provided by the Western Railway to the design indicated ...... at the rate of .... : . Rs. 19141/- only.

The said work of building bodies will be carried out by the contractor in the area of premises of the Western Railway Workshop at Pratapnagar, Baroda or at such other location as may be mutually agreed upon". It also appears in the second part of clause (1) that each employee working under the contractor "for this work" will have a gate pass issued in his favour Qn a deposit of Rs. 5 /- for each gate pass. It is also stated in the -second part of clause ( 1) that "all gate passes issued to the contractor are returnable within a week of termination of the contract".

Clause (3) provides for security deposit "for the due fulfllment and H -completion of this contract".

Gause (3) further says that the security deposit will be retained by the Administration "for the due performance of and observance of the terms and conditions of this contract"

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SUPREME COURT REPORTS [1976] SUPPLl!MllNTARY

A and the same is liable to forfeiture "in !he event of any breach on the part of the contractor of the terms and conditions of this contract".

Clause ( 4) provides for deduction of 10 per cent from each pro- . .,,- gressive bill submitted by the contractor and the security deposit shalt be refunded to the contractor "only on successful completion or termi- 1rntion of this contract". ' B- Clame (9) provides that constructionai material and fittings must be supplied by the contractor whkh should be ordinarily as per the

Rilway'o standard. "The provision of the hand-brake arrangement~ in the Guard's compartment will be done by the Railway",

(Jame (11) says that the contractor is required to supply carpentry labour for equipping coaches with electric lights, fans switches ancl regulators.

The appropriate Railway stalf will work in association with the contractor's staff to an extent required for the installation of electrical equipment and all .electrical fittings will be supplied by the Railw"y.

Clause ( 13) provides for removal of rubbish, debris or temporary structure at contractor's own cost on the expiration of the contract fir in tltc event of earlier termination of the contract.

Cfausc (14) says that the contractor shall provide all essential oquipment, tools and plant for satisfactory execution of the work.

By clause (15) "The contractor is required to deliver a minimum

numer of two coaches per month starting from the expiry of six E month:-: fro1n the date of signing this agreen1ent".

Claus" (16) says that "in the event of the contractor failing to carry out and complete the work within the period stipulated as herein before provided the contractor shall be liable to pay to the Administration by way of ascertained and liquidated damages a sum equivalent tc on= per cent of the value of the work in arrears for each and every month or part of a month by which the contractor shall be in default upio <: maximum of 20% of the va!toc 0f the contract but the contractrr shall not by reason of the reco1cry by any means by the Administration of such damages be relieved from his other obligations and ii abilities under the contract. ..... The recoveries may be made from the security deposit or running bills or any sums due to the contractor".

Clause (17) may be set out :

"The contractor shall be responsible for the safe custody o! carrias under construction as well as of the material supplied by the Administration for the purpose till the materiai or the carriages are taken over by the Administration.

DaJes of completion of the building work will be deemed to be the respective dates on which the Chief Mechanical Engineer or his authorised representative certifies each coach as ha\ing been built to his satisfaction".

I , J

Ciausc (18) provides that the Railway authorities are free to A inspect the work. "The Chief Mechamcal Engineer or his authorised representative will be the sole judge t:> determine whether the standard of workmanship is according to the Railway's requirement and whether any part or parts of the carriage require replacement due to bad or indifferent workmanship."

Clause (19) provides that "the contractor shall not under any cir- B cums1anccs sub-lS"t this contract either in part or in full without the previous consent in writing of the Chief Mechanical Engineer .... "

Clause (20) provides for termination of the contract by giving one month's notice to the contractor "in the event of the contractor failing to execute the contractual dntie.s with diligence, competence and ex; iedition".

Clause (21) provides for the duration of the contract which in the normal course be in force for a period of 16 months from the date of signing of the same. There is also provision therein for allowing such additional time as the Administration may consider to be justified by the circumstances of the case.

(:J2usc (22) provide~ for contractor's liability for damages in the event of failure to execute the work with diligence and expedition or in complying with any orders given by the Chief Mechanical Engineer or his authorised representative from time to time.

Clause (23) provides that "the contractor will present bill through District Mechanical Engineer, Partapnagar for payment on the basis of ce:tified completion in terms of coaches completed and handed over

f<_1 hirri".

C!use (25) states that "if during the continuance of this agreement the contractor shall die or be adjudicated insolvent or if the contractor being a company shall enter into liquidation whether rnluntary or compulsory. . . . this agreement ; hall absolutely cease and determine and the legal represntative of the contractor or.lhis assignee in insolvency or (in the case of a company) the liquidators shall liave no interest whatsoever under this agreement other than in respect of a claim for the money due for the work done under this contract und for the return of the security deposit subject to the provisions herein contained . ..... "

Ciausc ( 30) makes provision for fair wage~ to the labourers engaged G by tl1e contractor.

C!ause (31) says that the contractor shall have to abide by safety rules. ·

Clause (32) provides that the contractor shall not employ children under 15 years of age.

Clause (33) says that the contractor shall complv with the pro- H visions of the Payment of Wages Act and the rules made thereunder.

Clause (34) provides that "the contractor shall pay a nominal rent of Re. 1 /- per mensem for the area which may be allotted to him for the purposes of building the coaches".

Clo.use (35) provides for water and conservancy charges to be paid by the contractor.

Clame (36) provides for supply of electrical energy to the contractor on payment

Clause (38) says that certain conditions of Tender shall be deemed to l:>e incorporated in the agreement. These tenders are. however, not before us.

Before we proceed further we may. observe that for the meaning of the expression "sale of goods" we will have to deriv~ assistance for the legal connotation of those words from the prov1s10ns of the.

Sale •)f Goods Act, 1930. As has been held by a Constitution Bench of this Court in the Stat' of Madras v.

Gannon Dunkerley & Co. (Madri.uj Ltd.(') "that, both under the common law and the statute ; aw relating to sale of goods in England and in India, to constitute a transaction of sale there should be an agreement, expres. or implied, relating to goods to be comploted by passing of title in those good~.

It is of the essence of this concept that both the agreement and the sale soould relate to the same subject matter ..... On the true interpretation of the expression 'sale of gooos' there must be an agreement between the parties for the ale of the very goods in which eventually property passes". , 1 ·-c.,,,.., ..... ~-_,;,; r .-;_.'"_. ,.,,...,.,,;.. ,.,,.

Bearing in mind the above legal concept of the sale of goods we will have to consider whether the terms oc the contract, which we have set out earlier, can be construed in favour of a contract for sale of the railway coaches which were constructed by the respondent.

l\k Desai is right when he submits that the word contractor appearing in the preamble is not decisive on the question. As we have stated earlier, the entire document with all the relevant and material clauses throwing light upon the real intention of the parties and the F real nature of the transaction must be given due weight in coming to a

conclusion one way or the other.

The following material features in the agreement immediately draw our attention so far as may be releJant in considering whether the contract is one of sale or contract of work and labour :

( 1) Undertaking by the Contractor work of building bodies on under-frames supplied by Railway according to design provided by a Railway (Cl. l (a).

( 2) Security deposit by contractor for due fulfilment and completion of the contract (Clause 3).

( 3) Confiscation or forfeiture of security deposit in the event of any breach by the contractor of termi and conditions of the contract (Clause 3).

(I) 9 S.T.C. 353.

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( 4) Deduction of 10% from each progressive bill of contractor to cover any likely loss, damage etc. (Clause

4) .

(5) Import licence and foreign exchange arrangements by contractor (Clause 6).

( 6) Supply, including manufacture, assembly, fitting, fixing and finishing, of all constructional materials and fittings including timber by the contractor (Clause 9).

I ( 7) Provision of hand-brake arrangements in the Guard's compartment by Railway (Claus~ 9). ( S) Supply of electrical fittings by Railway (Cl. 11).

(9) Railway staff working in association with contractor's staff for installation of ek; trical equipment. (Clause 11).

(10) Use of Railway site provided for the work and for

no other purpose. (Clause 12).

(11) Removal of rubbish, debris, or temporary structure

at contractor's O\VIl cost. (Claus~ 13). •

(12) Earlier termination of contract also envisaged. (Clause 1-3). (l 3) Essential equipment to be provided by contractor for execution of the work:. (Clause 14).

(14) At least two coa_ches to be delivered per month after expiry of six months from the signing of the contract. (Clause 15).

O 5) Contractor's liability to pay liquidated damages in the event of failure to carry out and complete the work within stipulated perlod. (Clause 16).

(16) Provision for running bills. (Clause 16). ( 17) Re_sponsibility of contractor for safe custody of carriages under construction as well as of the materials supplied by Railway till they are taken over by Railway. (Clause 17). .

(18) Date of completion of b'lilding work on the date of certification by Railway's representative to his satisfaction. (Clause 17). (! 9) Right of inspection of the work by Railway at all times and of maintenance of control over standard of workmanship requiring rectification of work: and replacement of materials whea ordered. (Clause 18).

(20) No subletting of contract whoily or in part without

the previous written consent of Chief Mechanical Engineer. (Clause 19).

(2i) Authority to terminate comract by one month's notice in the event of the contractnrs Jack of diligence, competence and expedit1on in executing contractual duties. (Clause 20).

(22j Any losses incurred by Railway and occasioned through failure of coutractor to comply with con tractual obligations will be deducted from security deposit. (Clause 20).

(23) Co11tract to be iu force [or 16 months unless extended

on reasonable ground subject to waiver of Joss or damage by Railway. (Cla.w; e 21).

(24) Contractor's liability for damages for failure to execute the work with diligence an, J expedition or to comply with orders of Railway Administratio11. (Clause 22).

(25) Bills to be submitted by contractor ow the basis of certified completion in terms of coaches completed and handed over to the District Mechanical Engineer. (Clause 23).

(26) Contractor, his heirs, :xccut<Jrs or administrators to indemnify Railway Administration from and against all claims including claims under the Workmen's Compensation Act, Payment of Wages Act, Factory Act, etc. (Clause 24).

( 2 7) In case of contractor's insolvcnc y or death, Rgreement

shall absolutely cease and determine and the iegal representatives of the contractor or the liquidators shall have no interest whatsoever under the agreement other than in respeGt of a claim for the money due for the work done under the contract and for the return of the security deposit subject to the provisions of the agreement. (Clause 25).

(28) Arbitration clause in the vent of any dispute in connection with the contract. (Clause 28).

(29) Contractor to pay fair wages to labourers mployed.

(Clause 30).

(30) Contractor to abide by safety rules. (Clause 31).

( 31) No employment of children under 15 year; by contractor. (Clause 32).

(32) Responsibility of contractor under Payment of Wages

Act. (Clause 33).

(33) Norn~] rent of Re. 1/- per month for occupation of the Railway area for the purpc•se of building the coaches. (Clause 34).

( 34) Contractor to pay to the llailwa y conservancy charges and for supply of electrical energy. (Clauses 35 and 36).

Reading the agreement as a whole and bearing in mind the above features, is it possible to conclude that what is contracted is to sell the railway coa.ch constructed by the contractor to the Railway ? In that event the railway coach when constructed must b~ as a unit the 1t property o( the contractor. But has the assessee alone contributed to the result? There were materials supplied by railway. There was labour supplied by Railway. It is differeut from the case of a bus-body fitted into the chassis with all materials supplied by the contrmtor and

all skill and labour contributed by the contractor.

A contricts to sell a certain article to B.

A must be the owner C of the article and B must be at the re,:eiviH~ end having nn interest in the article prior to passing of the property therein. Is the contractor owner of the railway coach when it was completeJ'? The answer must be in the negative. Apart from the fact th"t the under-frame is not of the contractor (which may in a given case be a neutral factor) not all his materials nor all his labour and skill contributed to the coach.

The Railway supplied men and material; although the substantial D portion is of the contractor. This goes to bring out the intention of the patties in that they were intent upon performance of the work, the manner of the work, the quality of the materials used in the work and upcn completion of the work in the most efficient way resulting ultimately in a completed coach.

The intention of the parties at the time of entering upon the contract was not to transfer any completed railway conch by the contractor \o the Railway.

The cud-product, E being the railway coach, is the result of work, labour and materials of the contractor as well as of the Railway as also of the latter's constant supervision and control.

From llte totality of the material terms aud conditions in the agreement set out above, it is not possible to hold that the parties intend that the contractor transfers the property in the railway coach to the Railway after its completion.

The essence o" the contract or the reality of thr transaction as a whole indicates that the contract is a contract for work and labour.

Mr. Demi submits that clauses 15, 17 and 23 in particular make it absolutely clear that the property in a 1111it, in the shape of a completed railway coach, passes only on handing over of the same to the District Mechanical Engineer after the same has been completed and the specified authority certifies the coach as having been built to his satisfaction. He particularly draws our attention to the word ''deliver"

in clause 15 and the words "taken over'' in clause 17 and "handed over" in clause 23. According to Mr. Desai these three clauses clearly disclose the intention o! the parties that a railway coach as a unit, after its compkt'tcn, is contracted to be han<led over by the respondent to the Administration.

The contract, therefore, that is entered in terms of the ngre.ement is one of contract of sale of goods and not a works contract, &ays Mr. Desai.

; Jl

Although the submission on the !irst blush is attracttve and appears to be of s0me force, it will not bear close scrutiny. Perusal of clause 17 itself upon which great reliance has been placed by Mr. Desai shows that "dates of completion of the buiidi ng work will be deemed to be the respective dates on which the Chief Mechanical Engineer or his authrnised representative certifies et>ch coach as having been built to his satisfaction".

It is also apparent from the contract that the contractor .has to complete two coaches each month after the expiry of the fiist six months of the contract. It is also clear that the contractor has to get payment by submitting running bills on completion of the coaches eyery month.

In the above context when clause 17 refers to a fictional completion of the building work on the date of certtfkate by the Chief Mechanical Engineer or his authorised representatl.vc there is no requirement for a further ritual of delivery or handing over to which reference is made in clauses 15 and 23 respectively.

The work is undertaken in the RailY'av premises.

Materials are brought to the Railway premises.

People are admitted on gate passes for building the railway c.x1ches on the under.frames supplied by the Administration. Some materials, such as electrical goods, were supplied by the Railway.

B0sidcs; there is cooperation of Railway's labour with the contractor's labour in construction of the coach The hand-brake arrangements in the Guard's compartment are also agreed to be done by the Railway.

Regular inspection of the coutractcr's work is carried out at all times and instructions to rectify c1efects leave to be carried out immediately. Unless a close in; pection

of the work is carried out from day to day, it may be ditlicult to rectify defects after the work progressc>.

All this would go to show that the predominant element in the contract is the work and labour aspe.; t and supply of materials is onlv accessory although the materials 'f"erc definitely. necessary for execntion of the work.

There is yet another important clause which thr<iws a flood of light on this issue.

Clause 25 deals with the contractor's insolvency or death. Jt is agreed between the parties, as per clause 25, that if the contractor dies, his legal representatives shall have no interest whatsoever in this agreement save in respect of a claim for the money due for the work already done under the contract and for the return of the security deposit subject to other provisions.

This would also clearly show that the contract is a works contract and unfinished work would become the property of the Railway and the legal representatives will be entitled only to claim for the value of the work done. There is no provision in the a!!feement in that event for handing over of the unfinished railwny conch by the resppndent or hi~ JegaJ representatives or assignees to the Railway Administrntion. The Railway Admiliistration automatically becomes the owner of the unfinished property 'f"hich was lying in its premises. This is another reason whv no exaggerated importanc can be assigned to the \Vonis "delivery" and "handed over'' in clauses 15 and 23 respectively ns urged by Mr. Desai.

This is. therefore, not a contract where it can be said that there is an ogreerncnt to supply a completed railway coach which when prodt•ced will be the propertv of the contraclor. Along with those of the i:ontractor's. materials and labour of R.aihvay are also required to be

GUJARAT STATE v. VARIETY BODY BUILDINGS (Goswami, I.) 141

pnt in for production of the completed railway coach. It is contract primarily for work and labour and that clement predommantly runs through the entire document from the preamble to the end as seen

abov~.

Mr. Desai very strenuously relies upon a recent decision of this Court in T. V. Sundaram Iyengar & Sons v. The State ofMadras( 1) B. to which my learned brother was a party.

That was a case relating to the contract for supply of bus bodies constructed and fitted to the chassis provided by the customer. This Court held that the rule laid down in Patnaik and Company v. The State of Orissa( 2) was applicable to the facts of the two cases that came up for consideration in the above decision. This Court held that the property in the material• used by the assessees in constructing the bus bodies never passed to C their customers during the course of construction and that it was only when the complete bus with the body fitted to the chassis was deli- ., vered to the customer that the property in the bus body passed to the customer. This Court, therefore, held that the supply of bodies consituted a sale and the assessees were liable to sales tax. The conclusion of this Court in T. V. Sundaram /yengar's case (supra) is brought out clearly in the following passage : D

"The salient features of the deaiirn'.s between the two assessees

wir!t whom we are concerned and their customers as they emerge from the facts given a ove are that the property in tile material used by the assessees in constructing the bus {Jo, Ees never passed to their 'ustomcrs during the course of constrnction. It was only when the complete bus with _the body fitted to the chassis was delivere-0 to the cu; tomer that the property in the bus body passed to the customer. There \vas nothing to prevent the assessees fron1 removing a piank,

or other material after fixin1t it to a chassis, and using it for a different purpose or for a different bus body".

Thts Cnmt in several decisions quoted with approval the followin~ I' passage from Halsbury's Laws of England, Third Edition, Volume 34, at page 6. with regard to the distincti•.m between a contract of sale and a contract for work and labour :

"A contract of sale of goods must be distinguished from a contract for work and labour.

The distinction is often a fine cne. A contract of sale is a contrat whose main object is the transfer of the property in, and t11e deliverv of the rosse'Sion of, a chattel as a chattel to the buyer.· Where the niain object of work undertaken by the payee of the price is not tl1e transfer of a chattel qua chattel. the contract is one f0f work and labour. The test is whether or not the work

and labour bestowed end in anything that can properly bec:-mc the subject of sale; nei.ther the <'Wnership of the mate· m I; nor the value of the skill anu labour as compared with

(1) (!q75) 35 S. T. C. 24.

(2) (1965) 16 S. T. C. 364.

the value of the materials, ,, conch1sive, although such matters may be taken into considernti.on in determining, iu the circumstance of a particular case, whether the contract is i11 ml>stance one for work and labour or one for the sale of. a chatel".

It can be treated as well-settled that there is no standard formula by which one can distinguish a contract of sale from a contract for work and labour.

There may be many common features in beth the contracts. some neutral in particular context, antl yet certain clinching tenns .in a given case may fortify a conclusio11 one way or the other.

It will depend upon the facts and circumstance' of each case.

The question is not always easy and has for all time vexed jurists ali over.

In Commissioner of Commercial Taxes, klysore v.

Hi11dusta11 Aeronautical Ltd.( 1) a bench of five Judges of this Court, to which my learned brother was a party, had to deal with a works contract with regard t,, manufacture and supply of railway coaches.

This Court after consideration of all the facts ill that case and the salient features 0f the contract came to the conclusion that it was a pure works contract.

The Court further held lhat the case was in line with the decision in State of Gujarat v.

K,1i/ash Engineering Co.(').

Indeed Kai/ash Engineering's case (supra) was relied upon by the respondent before us. It was held in that case that as the termr. 0f the contract indicated that the respondent was not to be the owner of tloe ready railway coaches and that the property in those bodies vested in the Rail\'Vay eveu during the process of conslrL:ction, the transactior~ \vas clearly a .works contract and did not involve any sale.

Mr. Desai. strenuously contends that clause (291 of the contract in Kailash Engineering's case (supra) distinguishes that case from the case at l; and.

Clause 29 was a specific provision for certain contingencies in case of loss, theft or destruction of the materials or plant.

This sperial provision was to the effect that the liability of the contractor was not to be diminished in any way notwithstanding the fact that the materials and plant became the property of the Raiiway as soon as they were brought to the Railway premises.

We, however, do no1 see much point in this sHbmi3sion. In that case since the piant an<l 111aterials were brought on the site , x, herc the coache3 "·"ere to be conmucted the ownership is said to h:ive vesterl in the Railway.

In the present case also substantially the same resnlt follows. The aree ment here shows that when the contractor dies, his Ieal representatives or assignees have no interest in the contract which terminates anct they will bt only paid for the value of the work done.

This would mean the property constructed uoto that point was impliedly agreed upon to be vested in the Railway as and when materials were worked into the chassis. This is the implication of the agreement and not merely on the theory of accretion. At ; my rate the passing of property in this case is ancillary to the primary contract for execution of the work.

(I) (1972) 29 S. T. C. 438.

(2) (1967) 19 S. T. C 13

GUJARAT STATE v: VARIETY BODY BUILDINGS (Goswami, /.) 143

In the State of Madras v. Richardson & Cruddas L"1.( 1) this Court was dealing with a contract for fabrication and installation of "> steel structure for sugar factory in the State of Mysore. In the course of the judgment this Court obser\'ed as follows :--

"lt had, therefore, to be estabEsheJ that the consideration was received under a contract to sell specific goods for a price, and property in the goods contracted to be sold passed to the society, when the goods were delivered in pursuance of the contract. If the contract was for completing the stipulated work and for that purpose to use materials belonging to the respondents in the performance or executi<ln ol the

contn1ct as accessory to 'work and labour' the contract must be regarded as a works contract, and not <l contract for sale, even if the property in the goods ultuuately J .. asses as a result of the .contract".

The Comt further observed at page 252 as follows :

"The contract _being one for supplying for an inclusive price " specially designed fabricated unit to be assembled and installed by specially trained technicians in the premises of the customer, it was not a contract for sale of a unit or differem parts of the unit as specific goods, but works cuntract".

In the Government of Andhra Pradesh. v.

Guntur Tobaccos Ltd. (2) this Court dealing with an identical issue observed as follows , 'at page 255 :

"The fact that in the execution of a contract for work s0me materials are used and property in the goods so used passes to the other party, the comrcctor undertaking to do the work will not necessarily he deemed on that account to sen the materials".

Again at page 258 :

"Whether a contract for service or for executioa of work, involves a taxable sale of goods must he decided on the facts and circumstances of the case, The burden in such a case lies upon the taxing authorities to show that there was a taxable sale, and that burden is not discharged by merely showing that property in goods which belonged to the party performing service or executing the contract stands transferred to the other party".

This Court in Commissioner uf Sales Tax, M.P. v. Purshottam Premji(') dealt with the difference between a contract of work or senke and a contract for sale of goods in the fo!iowing passage :

''The primary difference between a contract for work or service and a contract for sale of goods in that in the former

(!) (1968) 21 S. T. C. 245.

(2) (1965) 16 S. T. C. 240.

(3) (1970) 26 S. T. C. 38.

there is in the person performing work or rendering service no property in the thing produced as a whoi.e notwithstanding that a part or even the whole of the materials used by him may have been his property. In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it, at some time before delivery, and the property therein passes only under the contract relating thereto to the other party for prke. Mere transfer of property in goods used in the performanC'c of a contract is not sufficient; to constitute a sal• there must be an agreement express or implied relating to the sale of goods and completion of the agreement by passing of title in !_he very goods contracted to be sold. Ultimately the true effect of an accertion made pursuance to a contract has to be judged, not by an artitkial rule that the accretion may be presumed to have become by 'irtue o'. affixing to a chattel, part of that chattel, but from the intention of the partir;; to the c0ntract". ·

We are fortified by all the above decisions of this Court in our conclusi.on in favour of the assessee.

D We are, therefore, clearly of opinion that the contract in the pre1ent case is one of works contract and the High Court is right in answering • the question in favour of the assessee.

The appeals, therefore, fail and are dismissd with costs.

One hearing fee for counsel.

P.B.R.