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TMI Blog1969 (2) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... rson who supplies window-leaves. The "fixing" of windows in the manner stipulated required special technical skill. If the windows were not properly "fixed" the contract would not be complete, and the respondent could not claim the amount agreed to be paid to it. We agree with the High Court that it was only upon the "fixing" of the window-leaves, and when the window-leaves had become a part of the building construction that the property in the goods passed under the terms of the contract. X X X X Extracts X X X X X X X X Extracts X X X X ..... Class II of the conditions of contract and with such materials as are provided for, by and in all other respects in accordance with such conditions so far as applicable." This recital was followed by a memorandum setting out the "general description" of the building in respect of which the window-leaves were to be supplied, the estimated cost of the contract and the description and the number of items of work offered to be done. The items of work offered to be done were "providing and fixing" four different types of windows. The relevant conditions were: "1. The work shall be executed as per the specifications attached. 2.. The work is to be completed in 6 months from the date of award of works.......... 4.. The windows are to be fitted with rawl plugs in cut stone-works. 5.. Work will be executed either by plain glass or ground glass as may be decided by the Engineer in Charge. "Note: ............. 2.. We are offering windows which will be glazed with plain glass only. If at a later date it is desired to have windows glazed with ground glass, the difference in cost of glass will have to be paid by you...... 5.. The quotation is based on the current prices of mild steel bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rule applicable to all transactions may be evolved. As observed in Halsbury's Laws of England, Third Edition, Volume 34, Article 3 at page 6: "A contract of sale of goods must be distinguished from a contract for work and labour. 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." What did the respondent agree to do when it offered its tender. Did the respondent agree to sell the window-leaves as described in the tender or did it, as part of a works contract, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k; or it may be a contract for work and use or supply of materials, though not accessory to the execution of the contract, is voluntary or gratuitous. In the last class there is no sale because though property passes it does not pass for a price. Whether a contract is of the first or the second class must depend upon the circumstances; if it is of the first, it is a composite contract for work and sale of goods; where it is of the second category, it is a contract for execution of work not involving sale of goods." The contract in question in this case is of the second variety. Counsel relied upon Patnaik & Co. v. State of Orissa [1965] 16 S.T.C. 364 (S.C.), and McKenzies Ltd. v. State of Maharashtra [1965] 16 S.T.C. 518 (S.C.). But in both these cases the court held on a consideration of the terms of the contract and the circumstances that the assessees had agreed to and did supply "motor-bus bodies" and the contract, being one for sale of chattels, they were liable to pay sales tax. Our attention was also invited to Commissioner of Sales Tax, Maharashtra State v. Arun Electrics [1965] 16 S.T.C. 385.. In that case a firm of electrical contractors undertook the job of installing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory before actual completion of the erection work; there the contract did not contemplate dissecting the value of the goods supplied and the value of work and labour bestowed in the execution of the work; and the predominant idea underlying the contract was the bestowing of special skill and labour by the experienced engineers and mechanics of the assessees. This court agreed with the High Court and held that the contract was a works contract and not a contract for sale. Our attention was invited to a judgment of the Court of Appeal in Love v. Norman Wright (Builders) Ltd. [1944] 1 K.B. 484. In that case the respondents contracted with the Secretary of State for War to do the work and supply the material mentioned in the Schedules to the contract, including the supply of black-out curtains, curtain rails and battens and their erection at a number of police stations. It was held by the Court of Appeal that the respondents were liable to pay purchase tax. Reliance was placed upon the observations made by Goddard, L.J., at page 482: "If one orders another to make and fix curtains at his house the contract is one of sale though work and labour are involved in the making and fixi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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