9911796707
TMI Blog1999 (3) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... arried on only contracts for repairs of ships calling at the port of Madras. The petitioners are having a ship repair section styled as Goodwill Engineers reported a total and taxable turnover of Rs. 4,31,88,438 and Rs. 68,19,269 respectively before the Assistant Commissioner (CT), Central Assessment Circle for the assessment year 1980-81, and the assessing authority determined the total and taxable turnover of Rs. 4,44,39,220 and Rs. 80,59,505 respectively. Out of this taxable turnover determined the petitioners preferred an appeal before the Deputy Commissioner disputing Rs. 9,42,522 representing the value of the materials utilised in the course of execution of ship repair work, i.e., by claiming that it was not a sale and it was only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying on plumbing works, etc. So it is claimed that the materials were used for the repairing of ships as works contract. So it is claimed that the value of the goods supplied could not be treated a sale of goods and thereby it could not be exigible to tax. 4.. Now the point for consideration is whether the order of the Appellate Tribunal by levying tax on various rates in respect of the turnover of Rs. 9,42,522 is in accordance with law. 5.. It is admitted fact that the petitioners have an exclusive division called Goodwill Engineering Works and engaged in ship repairs as well as supply of goods for the ships calling at Madras Port upon the orders placed by the masters of the ships. In such circumstance it is the case of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lued Rs. 22,963, sanitary fittings valued Rs. 21,515 and other goods were supplied and these had been separately mentioned in the bills apart from the service charges. So in the absence of the tenders by contractors and accepted by the other party and written contract or written orders placed by the buyers the invoices had to be treated as evidencing an agreement of sale and further it had to be taken that there was a sale of goods separate from the work. In this case as already stated above due to the fact that the mention of the value of the materials supplied separately and the service charges separately in the invoices, it is obvious that the contract was only divisible or separable and hence the value of the goods supplied alone had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such circumstance for the purpose of determining the question whether the value of the materials consumed was a transaction for sale or not it was held that it was obligatory for the Commissioner to gather some other materials in the absence of written agreement as well as due to the non-availability of required materials in the invoices. So in the cited decision the burden of proof was not at all an issue before the Commissioner under section 52 of the Bombay Sales Tax Act. On the other hand it was the statutory obligation for the Commissioner to determine the question whether the particular transaction was a sale or purchase on the petition filed by the petitioner under section 52 of the Bombay Sales Tax Act. Such statutory obligation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons already stated above the decision in Arun Electrics reported in [1966] 17 STC 576 (SC) is applicable neither in law nor on facts to the facts of this case. If really the materials supplied were consumed in the execution of the works contract and the substantial value was only the works rendered by the assessee, the assessee could as well place materials to show that the value of the supply of goods was lesser than the value or charge made for repairing the ships. In this case, it is the concurrent finding of the lower authorities that the contract is a divisible one as per the materials available in the bill produced and the sale of goods was primary one and the repairing of the ships was only incidental thereto. In this case also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls by way of machineries, wooden furnitures, steel furnitures, electrical goods, glass, sanitary fittings, timber, pumpsets, etc., would all go to show that only the value of the said goods alone taken into consideration in determine the taxable turnover on the basis that this contract was severable and the contract was primarily for the supply of goods which passed as chattel to the buyer and supply of goods was never incidental to the service rendered by way of repairing charges. So the lower authorities rightly rejected the contention of the petitioners that the contract was primarily for repairing of the ships and further they have taken into consideration only the value of the goods supplied and not towards any charge for the services ..... X X X X Extracts X X X X X X X X Extracts X X X X
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