9911796707
TMI Blog2014 (5) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... icance for the purpose of determining the nature of the contract. If there are two contracts, namely, purchase of the components of the lift from a dealer, it would be a contract for sale and similarly, if separate contract is entered into for installation, that would be a contract for labour and service. But, a pregnant one, once there is a composite contract for supply and installation, it has to be treated as a works contract, for it is not a sale of goods/chattel simpliciter. It is not chattel sold as chattel or, for that matter, a chattel being attached to another chattel. Therefore, it would not be appropriate to term it as a contract for sale on the bedrock that the components are brought to the site, i.e., building, and prepared for delivery. The conclusion, as has been reached in Kone Elevators [2005 (2) TMI 519 - SUPREME COURT OF INDIA], is based on the bedrock of incidental service for delivery. It would not be legally correct to make such a distinction in respect of lift, for the contract itself profoundly speaks of obligation to supply goods and materials as well as installation of the lift which obviously conveys performance of labour and service. Hence, the fundament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 167-5168 of 2014 (Arising out of SLP (C) Nos. 17236-17237/2010), Civil Appeal Nos. 5170-5172 of 2014 (Arising out of SLP (C) Nos. 23259-23261/2010), Civil Appeal No. 5174 of 2014 (Arising out of SLP (C) No. 15732/2011), Civil Appeal No. 5175 of 2014 (Arising out of SLP (C) No. 16466/2011), Civil Appeal No. 5178 of 2014 (Arising out of SLP (C) No. 16137/2011), Civil Appeal No. 5179 of 2014 (Arising out of SLP (C) No. 5503/2011), Civil Appeal No. 5180 of 2014 (Arising out of SLP (C) No. 11147/2011), Civil Appeal Nos. 5181-5192 of 2014 (Arising out of SLP (C) Nos. 11227-11238/2012), Civil Appeal No. 5193 of 2014 (Arising out of SLP (C) No. 19901/2013), Civil Appeal Nos. 5195-5206 of 2014 (Arising out of SLP (C) Nos. 36001-36012/2013) and Civil Appeal No. 6285/2010 (Under Article 32 of the Constitution of India) JUDGMENT Leave granted in all the special leave petitions. 2. By an order dated 13.2.2008 in Kone Elevator India Private Limited v. State of Tamil Nadu and others (2010) 14 SCC 788,a three-Judge Bench of this Court, while dealing with the writ petition preferred by Kone Elevator India Pvt. Ltd. along with Special Leave Petitions, noted that the question raised for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt was overturned. After the pronouncement in the said case, the State Government called upon the petitioner to submit returns treating the transaction as sale. Similarly, in some other States, proceedings were initiated proposing to reopen the assessments that had already been closed treating the transaction as sale. The said situation compelled the petitioner to prefer the petition under Article 32 of the Constitution. As far as others are concerned, they have preferred the writ petitions or appeals by special leave either challenging the show cause notices or assessment orders passed by the assessing officers or affirmation thereof or against the interim orders passed by the High Court requiring the assessee to deposit certain sum against the demanded amount. That apart, in certain cases, appeals have been preferred assailing the original assessment orders or affirmation thereof on the basis of the judgment in Kone Elevators (supra). 5. Mr. Harish Salve, learned senior counsel for the petitioners, has contended that prior to the decision of this Court in Bharat Sanchar Nigam Ltd. and another v. Union of India and others (2006) 3 SCC 1, which has been further explained in Larse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll ropes, cables, wires and plant, directly connected with the operation of the lift. He has also placed reliance on Section 4 which deals with permission to erect a lift, Section 5 that deals with licence to use a lift and Section 7 which provides a lift not to be operated without a licence. Learned senior counsel has also drawn our attention to the various rules that deal with many a technical aspect and the terms on which lift shall work and what requirements are to be carried out by a licencee under the Act. In essence, the submission is that the manufacture, supply and the installation are controlled by the statutory provisions under an enactment of the legislature and also the rules made in consonance with the Act which would reflect that immense skill is required for such installation and the separate parts of the lift are not sold like goods, but it only becomes operational after it is installed, adjusted, tested and commissioned in a building. 7. Mr. Khambatta, learned Advocate General, appearing for the State of Maharashtra, submitted that in the case of sale and installation of a lift or elevator, the contract would include the obligation to install the lift or to undert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construed as a works contract and the decision in Kone Elevators (supra) does not lay down the law correctly. 9. Mr. Rakesh Dwivedi, learned senior counsel appearing for the State of Orissa, has referred to the terms of the quotation, the confirmation letter, the letter of approval, the preparatory erection work or civil work which are to be carried out by the customer at its own cost, the specific mode of payment and the nature of supply and, on that basis, contended that the contract was for sale and supply of a lift to the customer for a monetary consideration. It is urged by him that a part of manufacture is carried out at the project site of the customer and the skill and labour deployed in the installation or the work done is merely a component of the manufacturing process and, as a matter of fact, the elevator is supplied to the customer only after its erection/installation at the site. It is further contended by him that where a manufacturer of lift first manufactures components and then completes the manufacture of the lift at the site and retains ownership in the components as property while producing the completed lift, it is a case of pure manufacture. It is contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U.P. (1979) 1 SCC 487, Man Industrial Corporation (supra) and Vanguard Rolling Shutters Steel Works (supra) were rendered prior to the amendment of the Constitution and hence, they stand on a different footing as they were fundamentally dealing with indivisible contracts. Elaborating on the nature of affixation, it is urged by him that only the guide rails and the frame of the entry/exit doors are attached to the immovable property by nuts and bolts and the motor is also placed on the beam with the help of nuts and bolts. The sheave is attached to the motor and it enables the steel rope to move. The steel rope is attached to one side of the cabin car and on the other side to the counter weight. These parts are aligned so that the cabin car and the counter weight move up and down in opposite directions. Therefore, contends the learned senior counsel, the lift is only partially attached to the building and the remaining major portions of the components are constantly mobile. In fact, people buy lifts only with the object of movability and the lifts are advertised as transport systems. The learned senior counsel would further submit that if railway engines and coaches are goods notwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not make a difference as to the nature of the contract and it cannot be regarded as a works contract. 12. Ms. Hemantika Wahi and Mr. Preetesh Kumar, learned counsel for the State of Gujarat, while adopting the submissions of the learned senior counsel for the State of Orissa, have submitted that the traditional tests for determining whether a contract is a works contract or not would continue to apply. It is urged that the sale of goods involved in the execution of a works contract is quite distinct from the works performed while executing a sale of goods contract. It is also put forth that it would come within the competence of the State legislature being a measure of tax and for that purpose, reliance has been placed on Federation of Hotel and Restaurant Association of India v. Union of India and others (1989) 3 SCC 634. Be it noted, the learned counsel for the State, while placing reliance on Bharat Sanchar (supra), have also asserted that the dominant nature test or other test approved in Larsen and Toubro (supra) are still relevant. It is apt to note here that in the written note of submission, certain lines from para 45 of Bharat Sanchar (supra) have been reproduced. Relyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the expanded definition of tax on sale, tax is leviable only on the transfer of property in goods, whether in goods or in some other form, involved in the execution of work and no sales tax is leviable on the execution of works contract. Thus, the stand of the Union of India is that supply and installation of lift is not a contract for sale but a works contract. 16. To appreciate the controversy in the backdrop of the rivalised submissions, it is necessary to delve into the genesis of the law in respect of works contract and thereafter to dwell upon how far the principles pertaining to works contract would govern the manufacture, supply and installation of lifts. In this context, it is seemly to appreciate the legal position as to how the impost of sales tax on works contract was treated prior to the insertion of Clause (29A) in Article 366 of the Constitution by the Constitution (Forty-sixth Amendment) Act, 1982 with effect from 1.3.1983 and how this court has dealt with the said facet after the constitutional amendment that changed the concept of levy of sales tax on works contract . For the aforesaid purpose, chronological recapitulation is imperative. In State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sale as regards another. The Constitution Bench further held that on the true interpretation of the expression sale of goods , there must be an agreement between the parties for the sale of the very goods in which eventually property passes and in a building contract, the agreement between the parties being to the effect that the contractor should construct a building according to the specifications contained in the agreement, and in consideration therefor receive payment as provided therein, there was neither a contract to sell the materials used in the construction nor did the property pass therein as movables and, therefore, it was impossible to maintain that there was implicit in a building contract a sale of materials as understood in law. Eventually, the Court summed up the conclusion by stating that the expression sale of goods in Entry 48 is a nomen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement and in a building contract which was one, entire and indivisible, there was no sale of goods, and it was not within the competence of the Provincial Legislature under Entry 48 to impose a tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it as a works contract. 20. In The State of Madras v. Richardson Cruddas Ltd. (1968) 21 STC 245 (SC), there was a postulate that a consolidated lump sum would be paid per ton for fabrication, supply and erection at site of all steelwork, and there was no provision under the contract for dissecting the value of the goods supplied and the value of the remuneration for the work and labour bestowed in the execution of the work and the predominant idea underlying the contract was bestowing of special skill and labour by the experienced engineers and mechanics of the respondent. Taking into consideration the said aspects and relying on the principles stated in Clark v. Bulmer (1843) 11 M W. 243, the Court held that the contract was a works contract and not a contract for sale. 21. In Man Industrial Corporation Ltd. (supra), which has been taken note of in the referral order, this Court treated the contract for providing and fixing four different types of windows of certain sizes according to specifications, designs, drawings and instructions set out in the contract as a contract for work and labour and not a contract for sale, for fixing' the windows to the building was not inciden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk and labour. There may be many common features in both the contracts, some neutral in particular context, and yet certain clinching terms in a given case may fortify a conclusion one way or the other. It will depend upon the facts and circumstances of each case. The question is not always easy and has for all time vexed jurists all over. 24. In Vanguard Rolling Shutters and Steel Works' case, the assessee manufactured rolling shutters according to specifications given by the parties and fixed the same at the premises of the customers. The assessee claimed that it was not liable to sales tax on the ground that the amount received by it represented the proceeds of works contract. When the matter travelled to the High Court, it opined that the contracts entered into by the assessee were not works contracts but contracts for supply of goods simpliciter and the assessee was, therefore, liable to pay sales tax. While reversing the decision of the High Court, this Court took note of certain aspects, namely, that the amount from the owner of the premises was in lump sum without specifying as what part was meant for the material and the fabricated part and what part was meant for serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally and primarily, whether a particular contract was one of sale or for work and labour depended upon the main object of the parties in the circumstances of the transaction. 27. The aforesaid authorities clearly show that a works contract could not have been liable to be taxed under the State sales tax laws and whether the contract was a works contract or a contract for sale of goods was dependent on the dominant intention as reflected from the terms and conditions of the contract and many other aspects. In certain cases, the court has not treated the contract to be a works contract by repelling the plea of the assessee after taking into consideration certain special circumstances. No straitjacket formula could have been stated to be made applicable for the determination of the nature of the contract, for it depended on the facts and circumstances of each case. As the works contract could not be made amenable to sales tax as the State Legislatures did not have the legislative competence to charge sales tax under Entry 48 List II of the Seventh Schedule of the Constitution on an indivisible contract of sale of goods which had component of labour and service and it was not within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of the decisions in the field pertaining to works contract and the recommendations by the Law Commission in its 61st Report recommending for certain amendments in the Constitution so as to levy sales tax on transactions of the nature which were not liable to sales tax and the purpose of the amendment to bring many of the transactions in which property in goods passed for the purpose of levy of sales tax within the scope of power of the State to levy tax. The Constitution Bench also took note of the amendments that were incorporated in clause (1) of Article 269 and clause (3) of Article 286 and eventually upheld the constitutional validity of the amendment. In that context, the court observed that sub-clause (b) of clause (29-A) states that tax on the sale or purchase of goods' includes, among other things, a tax on the transfer of property in the goods (whether as goods or in some other form) involved in the execution of a works contract, but does not say that a tax on the sale or purchase of goods included a tax on the amount paid for the execution of a works contract. It refers to a tax on the transfer of property in goods (whether as goods or in some other form) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation case wherein it has been clearly stated that the tax leviable by virtue of sub-clause (b) of clause (29A) of Article 366 of the Constitution becomes subject to the same discipline to which any levy under Entry 54 of the State List is made subject to under the Constitution. After so stating, the Court did not think it appropriate to reopen the issues which were covered under the Builders' Association case and proceeded to deal with the matter in accordance with the law laid down in that case. 31. Be it noted, the Constitution Bench, in Gannon Dunkerley-II (supra), has unequivocally restated and reaffirmed the principle that the States have legislative power to impose tax on the transfer of property in goods or in some other form in the execution of works contract and they have also the power to bifurcate the contract and levy sales tax on the value of materials used in the execution of the works contract, regard being had to the principle that the State Legislatures have been empowered under Clause (29A) of Article 366 to levy tax on the deemed sales. We may state with profit that certain principles have been laid down in the said decision to which we shall refer to at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs (2001) 4 SCC 593 and stated thus: - After the Forty-sixth Amendment, the sale element of those contracts which are covered by the six sub-clauses of clause (29-A) of Article 366 are separable and may be subjected to sales tax by the States under Entry 54 of List II and there is no question of the dominant nature test applying. Therefore when in 2005 C.K. Jidheesh v. Union of India (2005) 13 SCC 37 held that the aforesaid observations in Associated Cement were merely obiter and that Rainbow Colour Lab v. State of M.P. (2000) 2 SCC 385 was still good law, it was not correct. 35. We have referred to the aforesaid decision only to point out that the dominant nature test relating to the works contract that gets covered under Article 366(29A) of the Constitution has been held therein to be not applicable. 36. In K. Raheja Development Corporation v. State of Karnataka (2005) 5 SCC 162, the appellants were involved in carrying on business of real estate development and allied contracts and had entered into development agreement with the owners of the land. They had entered into agreement with the intended purchasers for residential apartments and/or commercial comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax on the value of the goods involved in a works contract in the same way in which the sales tax was leviable on the price of the goods supplied in a building contract, for the concept of value addition comes in. 38. Reference to the aforesaid authorities is for the purpose that post the constitutional amendment, the Court has been interpreting a contract of work, i.e., works contract in the constitutional backdrop. In certain cases, which involve transfer of property and also an element of service in the context of work rendered, it has been treated as works contract. 39. The essential characteristics have been elucidated by a three-Judge Bench in Larsen and Toubro (supra) thus: - As the very title of Article 366 shows, it is the definition clause. It starts by saying that in the Constitution unless the context otherwise requires the expressions defined in that article shall have the meanings respectively assigned to them in the article. The definition of expression tax on sale or purchase of the goods is contained in clause (29- A). If the first part of clause (29-A) is read with sub-clause (b) along with latter part of this clause, it reads like this: tax on the sale or purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract so long as the contract provides for a contract for works and satisfies the primary description of works contract. It has been further held that once the characteristics or elements of works contract are satisfied in a contract, then irrespective of additional obligations, such contract would be covered by the term works contract because nothing in Article 366(29-A)(b) limits the term works contract to contract for labour and service only. 41. In the said case, another significant aspect has been considered. That relates to the dominant nature test . We think it apt to reproduce what has been stated in Larsen and Toubro (supra):- Whether the contract involved a dominant intention to transfer the property in goods, in our view, is not at all material. It is not necessary to ascertain what is the dominant intention of the contract. Even if the dominant intention of the contract is not to transfer the property in goods and rather it is the rendering of service or the ultimate transaction is transfer of immovable property, then also it is open to the States to levy sales tax on the materials used in such contract if it otherwise has elements of works contract 42. At this juncture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the materials supplied was subject to adjustment. It was further held by the Tribunal that the intention of the parties was that there was a sale qua lifts for money consideration and there was also to be the installation of those lifts by the applicants. On a reference being made by the Tribunal, the High Court scanned the terms of the contract and took note of certain facts, namely, that detailed provisions were given regarding the dimensions and travel of the car, the load and speed of the elevator, the type of the platform and the car enclosure, and what the car was to consist of, as also of the place where the machine was to be located, viz., above the hoistway upon rolled steel joists to be provided to the elevator; that the car-frame was to be made of structural steel and equipped with suitable guides and an Otis car safety device; that the counterbalance was also to be of a suitably guided structural steel frame with appropriate filler weights which would be furnished to promote smooth and economical operation; that terminal limit switches were to be provided to slow down and stop the car automatically at the terminal landing and final limit switches were to be furnishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of installation of the elevator, regard being had to its technical facet, safety device and actual operation. That apart, the decision has taken note of the fact that upon the installation of the lift in the building, it becomes a permanent fixture in the premises and that the involvement of technical skill and experience pertain to the precision in execution for rendering satisfactory service and the obligation to maintain which are integral to the supply and installation. 45. In this backdrop, we shall now proceed to deal with the submissions advanced by the learned counsel for the respondents which we have already noted. The fundamental submission of Mr. Dwivedi is that the manufacturer of the lift retains ownership in the components as property while producing the completed lift and, hence, it would be a case of pure manufacture. A distinction has been sought to be made that if another agency is appointed to install, it does not have the ownership of the components. To bolster the basic submission, as we find, he has referred to various facets. The said proponement, as we understand, is based on the assumption that the supplier remains the owner of the components as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a special order and the transaction, in fact, related to sale of a complete article and the receipt of the price. 47. In Norman Wright (Builders) Ltd. (supra), an agreement was entered into by the appellant for fixing of black-out curtains at some London police stations. The appellant-plaintiff contended before the Court that the fixing of curtains was not a sale of goods but a contract for work and labour and the supply of material in connection therewith. Repelling the said submission, it was held that as the contract involved transferring chattels, namely, curtains to the defendants for a price, in which they had no previous right, it was a sale of goods. 48. Narne Tulaman Manufacturers Pvt. Ltd., Hyderabad v. Collector of Central Excise, Hyderabad (1989) 1 SCC 172 , Eastend Paper Industries Ltd. (supra), Aspinwall Co. Ltd. (supra), MIL India Ltd. (supra) and Sirpur Papers Mills Ltd. (supra) are the decisions under the Central Excise Act, 1944 which are really not of relevance as they relate to the concept, term and expression manufacture as used and understood under the said Act. The concept of manufacture has limited relevance and cannot be a determining factor to decide wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he submissions of Mr. Venkataramani, we find that the fundamental facet of the contention is based on the principle of deliverable state and the intention of the purchaser to obtain an identifiable product or goods and the said identified product comes into being after the components are fixed at the site to make the lift usable. As submitted, the rendering of service is only to make the lift deliverable. The aforesaid submission, on proper appreciation, really rests on the bedrock of incidental or ancillary service involved in the installation of lift. We shall deal with this aspect when we address more elaborately to the dominant nature test and the incidental service in the context of clause 29A(b) of Article 366 of the Constitution. 50. As far as the submission put forth by the learned counsel for the State of Gujarat, it is based on the edifice that the dominant nature test is still available in view of the decisions in Bharat Sanchar (supra) and Larsen and Toubro (supra). On a careful reading of the written note of submission of the learned counsel for the State of Gujarat, we find that the learned counsel have not appositely understood the ratio laid down in the aforesaid au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... labour and service can be deducted from the total contract value without treating the composite contract as a works contract is absolutely fallacious. In fact, it is an innovative subterfuge. We are inclined to think so as it would be frustrating the constitutional provision and, accordingly, we unhesitatingly repel the same. 53. As far as submissions of Mr. K.N. Bhat, learned senior counsel for the State of Karnataka, and Mr. P.P. Malhotra, learned Additional Solicitor General, are concerned, as their stand is that the decision in Kone Elevators (supra) is not correct, we have only noted that for completeness. 54. Having dealt with the submissions advanced by the learned counsel for various States and the learned Additional Solicitor General for the Union of India, we shall presently proceed to deal with the correctness of the legal position as stated in Kone Elevators case. In the said case, a three-Judge Bench took note of the submissions on behalf of the Department that the main object of the contract in question was to sell the lifts and the works done by the assessee for installation was incidental to the sale of lifts. It had also taken note of the submission that the legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale or a works contract . Therefore, this question has to be ascertained on facts of each case, on proper construction of terms and conditions of the contract between the parties. 55. After so stating, the three-Judge Bench adverted to the definitions in the State Act, referred to the decision in Gannon Dunkerley-I (supra), placed reliance on the decision in Hindustan Shipyard Ltd. (supra) and, analyzing the principle stated therein, observed thus: - 9. In the case of Hindustan Shipyard Ltd. v. State of A.P. this Court held that if the thing to be delivered has any individual existence before the delivery as the sole property of the party who is to deliver it, then it is a sale. If the bulk of material used in construction belongs to the manufacturer who sells the end product for a price, then it is a strong pointer to the conclusion that the contract is in substance one for the sale of goods and not one for labour. However, the test is not decisive. It is not the bulk of the material alone but the relative importance of the material qua the work, skill and labour of the payee which also has to be seen. If the major component of the end product is the material consumed in producing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and scenic lifts and a combined study of the above models, mentioned in the brochure, indicated that the assessee had been exhibiting various models of lifts for sale and the said lifts were being sold in various colours with various capacities and variable voltage. From the further analysis, it is manifest that the Court took into account the fact that it was open for a prospective buyer to place purchase order for supply of lifts as per his convenience and choice and ruled that the assessee, on facts, satisfied the twin requirements to attract the charge of tax under the 1957 Act, namely, that it carried on business of selling the lifts and elevators and it had sold the lifts and elevators during the relevant period in the course of its business. To strengthen the conclusion, it has been held that the major component of the end product is the material consumed in producing the lift to be delivered and the skill and labour employed for converting the main components into the end product are only incidentally used. 57. From the aforesaid decision, it is perceptible that the three-Judge Bench has drawn distinction between the contract for sale and works contract and, in that context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is deemed to be a sale of goods involved in the execution of a works contract by the person making the transfer and the purchase of those goods by the person to whom such transfer is made. For this reason, the traditional decisions which hold that the substance of the contract must be seen have lost their significance. What was viewed traditionally has to be now understood in light of the philosophy of Article 366(29-A). xxx xxx xxx 97.5. A contract may involve both a contract of work and labour and a contract for sale. In such composite contract, the distinction between contract for sale of goods and contract for work (or service) is virtually diminished. 97.6. The dominant nature test has no application and the traditional decisions which have held that the substance of the contract must be seen have lost their significance where transactions are of the nature contemplated in Article 366(29-A). Even if the dominant intention of the contract is not to transfer the property in goods and rather it is rendering of service or the ultimate transaction is transfer of immovable property, then also it is open to the States to levy sales tax on the materials used in such contract if such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct which was single and indivisible has been brought on a par with a contract containing two separate agreements. 62. It has been further observed therein as follows: - 36. If the legal fiction introduced by Article 366(29-A)(b) is carried to its logical end it follows that even in a single and indivisible works contract there is a deemed sale of the goods which are involved in the execution of a works contract. Such a deemed sale has all the incidents of a sale of goods involved in the execution of a works contract where the contract is divisible into one for sale of goods and the other for supply of labour and services. 63. Considered on the touchstone of the aforesaid two Constitution Bench decisions, we are of the convinced opinion that the principles stated in Larsen and Toubro (supra) as reproduced by us hereinabove, do correctly enunciate the legal position. Therefore, the dominant nature test or overwhelming component test or the degree of labour and service test are really not applicable. If the contract is a composite one which falls under the definition of works contracts as engrafted under clause (29A)(b) of Article 366 of the Constitution, the incidental part as regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes a permanent fixture of the building. Involvement of the skill has been elaborately dealt with by the High Court of Bombay in Otis Elevator (supra) and the factual position is undisputable and irrespective of whether installation is regulated by statutory law or not, the result would be the same. We may hasten to add that this position is stated in respect of a composite contract which requires the contractor to install a lift in a building. It is necessary to state here that if there are two contracts, namely, purchase of the components of the lift from a dealer, it would be a contract for sale and similarly, if separate contract is entered into for installation, that would be a contract for labour and service. But, a pregnant one, once there is a composite contract for supply and installation, it has to be treated as a works contract, for it is not a sale of goods/chattel simpliciter. It is not chattel sold as chattel or, for that matter, a chattel being attached to another chattel. Therefore, it would not be appropriate to term it as a contract for sale on the bedrock that the components are brought to the site, i.e., building, and prepared for delivery. The conclusion, as ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely, Whether manufacture, supply and installation of LIFTS are to be treated as a contract of 'Sale' or 'Works Contract'? 3. In the decision reported in State of Andhra Pradesh vs. Kone Elevators (India) Pvt. Ltd., (2005) 3 SCC 389, it was held that a contract for supply of LIFTS constituted a 'Sale' and did not amount to a 'Works Contract' and that the element of service provided by the vendor of the elevator was negligible. The referral order referred to the other decisions which were drawn to the attention of the Court, namely, State of Rajasthan Anr. vs. Man Industrial Corporation Ltd., [1969] 24 STC 349, State of Rajasthan vs. Nenu Ram, [1970] 26 STC 268 and M/s. Vanguard Rolling Shutters and Steel Works vs. Commissioner of Sales Tax, (1977) 2 SCC 250, wherein a contrary view was expressed than what has been taken in Kone Elevators (India) Pvt. Ltd (supra). 4. On behalf of the State of Tamil Nadu, Gujarat, Uttar Pradesh and Andhra Pradesh, it was submitted that Kone Elevator (India) Pvt. Ltd. (supra) was correctly decided and placed reliance on Hindustan Shipyard Ltd. vs. State of Andhra Pradesh, (2000) 6 SCC 579, apart from contending that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepares it separately from the thing and then fixes it on it, or does the preparation and the fixation simultaneously in one operation. It was further held that it is the essence of the transaction viz., the agreement and sale, which relates to the same subject-matter, i.e. the goods agreed to be sold and in which the property gets transferred. In another Constitution Bench decision of this Court in The Commissioner of Commercial Taxes Mysore, Bangalore vs. Hindustan Aeronautics Ltd. reported in (1972) 1 SCC 395, it was again held that the answer to the question whether it is a works contract or it is a contract of sale depends upon the construction of the terms of the contract and in the light of the surrounding circumstances. It will have to be further noted that the principles set down in the above Constitution Bench decisions were neither varied nor upset in any other judgment of equal strength, though in Larsen Toubro Ltd. (supra) it has been stated that the 'Dominant Nature Test' laid down in State of Madras vs. M/s. Gannon Dunkerley and Co. (Madras) Ltd., AIR 1958 SC 560, no longer survives. In my humble view, it will have to be stated that even after the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Petitioner's proposal for 'SUPPLY' and 'INSTALLATION' of one (1) No. OTIS Electric Traction Passenger Elevator for their building. Along with the said letter, a copy of the proposal duly approved by the Petitioner's authorized officer was also enclosed. The contract number allocated to the customer was also mentioned. The first document enclosed along with the said letter dated 23.12.2009, is a document dated 21.10.2009, containing nine pages and in the last page the signatures of the Petitioner and its customers were found affixed in proof of acceptance of the Petitioner's offer to supply and installation of its elevator. Though it is one single contract, it contains separate terms and conditions dealing with different aspects relating to the supply and erection of the elevator. 11. The first one is titled as Model Code, which contains the various details about the elevator to be supplied. Such details relate to the load and speed, the travel and rise of the LIFT, the stops and openings of the LIFT, the power supply requirement for its operation, the control aspect of the LIFT, the nature of operation of the LIFT manual or automatic, the mechanica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails, namely, (i) smooth and controlled acceleration/deceleration, (ii) better riding quality, (iii) assured leveling accuracy +/- 5 MM, (iv) improved flight time, (v) improved reliability increased efficiency, (vi) reduced power consumption about 50% and improved power factor, (vii) reduced heat release, (viii) flexibility of programme and programming of features at site, (ix) enhances the value of building, and (x) simplified maintenance. A cursory glance of the details furnished under the above 10 heads by way of benefits of the offered LIFT discloses the claim of the Petitioner as to the advantage that will be available to the customer in the event of ordering for supply of the said type of elevator. 14. The next page of the document is under the caption 'Maintenance'. Under the head of 'Maintenance' it is mentioned as to from when the free maintenance for 12 months period as per the quotation would commence, the nature of inspection and examination that would be carried out during the said period of 12 months of free maintenance and the extent to which replacement of parts could be made free of cost, as well as on chargeable basis. It also specifies the exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s requirement in the elevator hoist way, during the erection period AND FOR ITS REMOVAL thereafter and in the event of the elevator hoist way being more than 40 meter height, such scaffolding should be in steel structure by OTIS, to provide suitable weatherproof lockup storage accommodation of approximately 50 sq.mt. per elevator at the ground floor level near the hoist way, to provide and maintain adequate safety and security measures, as also retain OTIS safety infrastructure to prevent any injury to third party or damage, theft or pilferage of material during erection period till the installed LIFT is handed over, to provide hoisting beam in the machine room ceiling and rolled steel sections with bearing plates for support of the machine if required, to provide acceptable living accommodation with facilities such as light, running water, sanitary for the erection crew at or near the site and to indemnify and SAVE THE PETITIONER HARMLESS AGAINST ALL LIABILITY GROWING OUT OF THE PURCHASER'S FAILURE TO CARRY OUT ANY OF THE FOREGOING. Out of the above 21 items, the aspects for which Petitioner takes the responsibility are the provision of a ladder in a pit, provision of steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn as evidence, if required. Another very important clause stated in the said document is 'Payment Terms', which reads as under: Under this clause claim for manufactured materials shall be paid along with our material invoice and claim for installation labour shall be paid along with our final invoice. Firm prices: The prices quoted in this proposal will be firm upto 5/5/10. Thereafter for any delay in completion of installation and commissioning due to reasons attributable to your goodselves prices will be adjusted in accordance with the above clause. 17. Therefore, it is quite apparent that there is no relevance to the subtitle, namely, 'Elevator Works Contract' mentioned in the said page of the document. The only relevant aspect which is required to be noted is that in the event of price variation due to the delay attributable to the Purchaser, the labour cost and the material cost would be worked out based on the prevailing Consumer Price Index Number for Industrial Workers and Wholesale Price Index Number for Metal Products. In other words, there is no significant relevance for the subtitle and the various details mentioned in the said page of the document. 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged at the rate of 1.5% per month of the agreed price. It also entitles the Petitioner to reschedule the erection time depending upon the delay caused at the instance of the Purchaser. Condition No.6 relates to the provision to be made by the Purchaser for the stay of the employees of the Petitioner who are assigned the task of erection of the LIFT. Condition No.7 relates to the work timings and in the event of the employees of the Petitioner were to work overtime based on mutual agreement with the Purchaser, such overtime charges should be borne by the Purchaser. Condition No.8 is a mutual FORCE MAJEURE clause as between both the parties. Condition No.9 specifies that the title to each elevator would pass on to the Purchaser when payment for such elevators are fully paid to the Petitioner and in the event of default being committed by the Purchaser, the right of the Petitioner to retrieve the elevator in full or in part and also its right to recover from the Purchaser, the value of the elevator supplied, can be initiated by appropriate legal proceedings. Condition No.10 mainly uses the expression that the contract should be deemed to be an INDIVISIBLE WORKS CONTRACT though the cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.21 refers to the manner in which the apportionment over the expenses of the contract relating to the amount or advances paid by the Purchaser, which would be determined by the Petitioner and that the same cannot be questioned by the Purchaser even before the legal forums. As per Condition No.22, the proposals when accepted by the Purchaser, the same would supersede all other earlier proposals, representations etc. Condition No.23 clarifies that in order to authenticate any change in the conditions of the contract after the signing of the contract, the same can be done only by the authorized person from the Head Office of the Petitioner. Condition No.24 states that the contract could be deemed to be concluded at Mumbai/Delhi/Calcutta/Bangalore after allocation of the contract by the Petitioner. Clause 25 specifies the delivery time and erection time and that the completion of the installation would be made within 16 weeks from the date of the receipt of the order, advance payment, layout approval and settlement of all technical details, whichever is later. It however, reserves the Petitioner's right to vary the delivery and the erection schedule depending upon any delay being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) The documents found in the ultimate agreed contract, therefore, contain the details relating to the model and the mechanical details about the operation of the LIFT, which are furnished with detailed particulars. (d) The various details contained in the proposal are all mainly related to the nature of the LIFT to be supplied and as to how the technology involved in the LIFT would be advantageous to the customer when it is ultimately erected and put into operation. (e) The details of the Preparatory Work is one of the relevant aspects of the contract, which disclose that at the site, where the LIFT is to be installed, the entire Preparatory Work is to be carried out by the customer such as, the setting up of the hoist way/structure, elevator pit, fire proof machine room, hoist way door frames, provision of sill bearing area, all cutting of the walls, provision of required power supply, furnishing of light outlet points, provision of elevators electric power supply, provision of required accommodation for the work force of the Petitioner and above all, the time within which the above works have to be carried out by the customer. As part of the Preparatory Work, the only area wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry provisions relating to LIFTS, which provide for charging of duty under the provisions of the Central Excise Legislation as well as the provisions brought out by various States for charging tax on supply and installation of LIFTS construing the same as 'Works Contract' and the subsequent changes brought about after the decision of this Court in Kone Elevators (India) Pvt. Ltd. (supra), besides the Constitutional provision, namely, Article 366(29A)(b) of the Constitution. 22. Under Article 366(29A), tax on the sale or purchase of the goods is defined and the concerned sub-clause (b) of sub-Article (29A), reads as under: A tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; 23. This clause was inserted under the Constitution 46th Amendment Act of 1982. A reading of the said sub-clause (b), which is a part of various other definitions under Article 366, would enable the tax levying authorities to levy tax on the transfer of property in goods involved in the execution of a 'Works Contract'. In order to apply the said sub-clause (b), in the foremost, what is to be ascertained is whether there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approaching the concerned authorities initially for the erection of the LIFT by getting a permission and securing a licence after successful installation of the LIFT and the periodical inspection to be carried out in order to ensure that the LIFT erected does not cause any damage to men and materials due to any defect in the material used while installing the LIFT, as well as in its future operation on regular basis, as well as in the course of its maintenance. Rule 9A(5) prescribes the fee for issuing a licence to LIFT contractors for permission, while issuing the licence for prescribed number of LIFTS. Apart from the above rules, Form A is the prescribed form by which an application for permission to install a LIFT or for making any addition or alteration to the LIFTS is to be made. The details to be furnished in the said form includes the name of the owner, the name of the person who would be installing the LIFT, the place where the LIFT would be installed and some basic details about the LIFT which is to be installed. Under Form A-1, the LIFT installation contractor has to make a declaration as to the successful installation of the LIFT undertaken by it. 26. Reference to the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act is for the purposes of carrying out,- (a) erection, commissioning or installation of plant, machinery, equipment or structures, whether prefabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or (b) construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or (c) construction of a new residential complex or a part thereof; or (d) completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c) or (e) turnkey projects including engineering, procurement and construction or commissioning (EPC) projects: 28. Before referring to the details of the above provisions brought to our notice, it is relevant to mention at this juncture the specific prayers of the Petitioner in the leading case W.P.(C) No.232 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n', which was again to operate w.e.f. 10.09.2004. The above definition relating to 'commissioning and installation agency' under sub-section (29) of Section 65 continued even w.e.f. 16.06.2005. However, in sub-section 39(a) of Section 65 while defining 'erection, commissioning or installation', an elaborate definition came to be introduced as per which the expression 'erection, commissioning or installation' would mean any service provided by a commissioning or installation agency in relation to installation of among other classes of service included under sub-clause (ii)(e) LIFT and ESCALATOR, fire escape staircases or travelators or such other similar services, which came into operation w.e.f. 16.06.2005. However, the definition of Taxable Service under sub-section 105(zzd) remained unaltered. 30. Chapter V under the caption 'Service Tax' of the 'Finance Act', 1994 underwent a further change wherein a sub-clause (zzzza) to sub-section 105 came to be added, which while defining a 'taxable service' to any person by any other person in relation to the execution of 'Works Contact' excluding 'Works Contract' in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e noted while construing the definitions prior to 16.05.2008 are sub-clause (29), (39a) and (105)(zzd) of Section 65. Service Tax was levied at the rate of 12% for the value of the 'taxable services' referred to under sub-clause (zzd) of sub-section (105) of Section 65. After 16.05.2008, under the amendments introduced by Finance Bill No.2 of 2009, the charge of service tax underwent a change and the rate was brought down to 5% of the value of taxable services referred to in sub-clauses (zzd) and (zzzza) of sub-section (105) of Section 65. 33. Having noted the above statutory provisions, we are now again mandated to examine the question as to whether the manufacture, supply and installation of LIFTS by the Petitioner would fall within the expression 'Works Contract' or 'Sale'. For examining the said question, a recapitulation of the various details has to be noted based on the specimen contract that came into existence as between the Petitioner and the Purchaser. A detailed reference has been made to the salient features of the said contract and I have also highlighted the terms contained therein. There was a detailed description of the product to be supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1947, which has been extracted in the earlier part of this Judgment, submitted that the manufacture, supply and erection/installation of a LIFT squarely falls within the said definition of 'Works Contract' and, therefore, the stand of the Petitioner is well founded. In support of his submissions, the learned Senior Counsel also relied upon the Division Bench decision of the Bombay High Court in OTIS Elevators Co. (India) Ltd. vs. The State of Maharashtra reported in [1969] 24 STC 525. 35. The learned Senior Counsel then referred to the Standard Contract Form of the Petitioner, as well as the Field Installation Manual and contended that the various works to be carried out in the course of installation of a LIFT can only be held to be a 'Works Contract'. By doing so, he drew our attention to the Field Installation Manual, which is meant for its field staff at the time of erection of the LIFT to follow the various instructions and the manner in which the LIFT is to be assembled at the premises of the Purchaser. By making reference to the said manual, which contains very many details as to the various parts of the LIFT and how these parts are to be assembled and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from their respective factory would be chargeable to duty at the appropriate rates. 39. By relying on the above decision, the learned Senior Counsel also brought to our notice an order under Section 37B of the Central Board of Excise and Customs dated 15.01.2002, wherein the assessibility of plant and machinery assembled at site was explained and as regards the LIFTS and Escalators in sub-paragraph (iv) of paragraph 5, it was described that though LIFTS and Escalators are specifically mentioned in sub-heading 8428.10, those which are installed in buildings and permanently fitted into the civil structure cannot be considered to be excisable goods. The learned Senior Counsel therefore, by referring to the above orders of the Government of India and the Board of Central Excise, contended that the same reasoning would hold good while considering the case of the Petitioner. 40. As regards the question whether manufacture, supply and installation of LIFTS would fall within the expression 'Sale' or 'Works Contract', the learned Senior Counsel heavily relied upon the recent three Judge Bench decision of this Court in Larsen Toubro Ltd. (supra). The judgment was rendered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the contract as between the Petitioner and its Purchaser, going by its terms, is always one for sale of its branded LIFTS, which having regard to the nature of the product has to be necessarily erected at the site, that 90% of payment is to be made on the signing of the contract, that the LIFTS would be handed over to the Purchaser on its erection and that the contract provides for the payment of balance 10% on fulfillment of certain other conditions. The learned Senior Counsel would, therefore, contend that in the present case, there can be no doubt at all as to the nature of contract as between the parties, which is one for sale and, therefore, there is no necessity to further examine whether it is a 'Sale' or 'contract for works'. The learned Senior Counsel by drawing our attention to the judgment in Larsen and Toubro Ltd. (supra) contended that the converse position argued by the learned Senior Counsel Mr. Rohinton Nariman in the said judgment as recorded therein, would explicitly show as to how a clear distinction can be drawn as between a 'Works Contract' and a 'contracts for Sale'. The learned Senior Counsel further pointed out that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a party agreeing to carry out a work such as construction of building, erection, installation or commissioning of movable or immovable property. In other words, according to the learned Senior Counsel going by the terms of the contract between the Petitioner and the prospective Purchasers, what is agreed to between the parties is the supply of LIFTS and the act of installation is not the contract for which the parties were ad idem. Therefore, if the contract distinctly discloses that it is one for supply of a LIFT and the same is effected by erecting it in the premises of the Purchaser, it cannot be held that the act of erection alone should be taken into account and on that basis hold that the contract was one for 'Works' and not for 'Sale'. 44. The learned Senior Counsel by referring to paragraph 101 of the judgment in Larsen Toubro Ltd. (supra) contended that by installation, the LIFT in its full form is brought out and handed over to the Purchaser. In other words, according to the learned Senior Counsel by installation, the LIFT is put in a fit condition for use and submitted that the principles laid down in the case of M/s. Patnaik and Company (supra), T.V. Sun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raph 90, contended that although the decision in Hindustan Shipyard Ltd. (supra) has been distinguished, paragraph 6 of the said decision is still the correct proposition of law to be applied in all cases to find out the nature of a contract. 47 Mr. Preetesh Kumar, learned Standing Counsel for the State of Gujarat by referring to paragraphs 71 to 76 of the judgment in Larsen Toubro Ltd. (supra) and in particular the ratio laid down in paragraph 76, contended that even by applying the test stated therein, the contract of the Petitioner for supply of the LIFT could not be brought within the concept of 'Works Contract'. The learned Counsel contended that in the light of the agreement by which the Petitioner came forward to supply the LIFT and erect the same in the premises of the Petitioner, it could only be held to be a 'contract for sale' and not 'Works Contract', thereby attracting Article 366 (29-A) (b) of the Constitution. 48. Mr. Darius Khambata, learned Advocate General for Maharashtra and Mr. K.N. Bhatt, learned Senior Counsel for Karnataka actually conceded to the effect that the question posed for consideration has been fully answered in the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is manufacture and supply of LIFTS/ELEVATORS. In fact, neither Mr. Salve nor any other Counsel appearing for the Petitioners submitted before us that the business of the Petitioner included any other activity along with the manufacture and supply of LIFTS/ELEVATORS. Certainly, it is not the case of the Petitioner that mere installation/erection of LIFT/ELEVATOR simpliciter is their business activity. It cannot also be contended that the job of installation/erection of a LIFT/ELEVATOR can be done only by LIFT/ELEVATOR manufacturers. In other words, manufacture of LIFT and erection of a LIFT can be independently handled by different persons. Therefore, the best course to proceed is on the admitted position that the business of the Petitioner is manufacture and supply of LIFTS/ELEVATORS as well as its installation. Once, the said factual position relating to the business of the Petitioners is steered clear of, the next question relates to the basis of the Contract that emerged between the Petitioners and the Purchasers in regard to the supply of the LIFTS/ELEVATORS and thereby ascertaining what were the agreed terms as between the parties. It must be stated that in order to find out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated earlier and as has been set out in detail in paragraphs 8 to 19, the Petitioner while agreeing to supply an Elevator of a specific model, highlighted the details of the LIFTS, such as, its technical details, advantages of its product and other sophisticated equipments put into the product. In fact, if at all any work element is involved in the activity of supply of the LIFTS/ELEVATORS, I find that the major part of the work has been directed to be carried out by the Purchaser, in its premises, in order to enable the Petitioner to erect its LIFT/ELEVATOR in the said premises. In a very insignificant manner, the Petitioner undertakes to attend to certain aspects while erecting the LIFTS in the premises of its Purchaser, such as connecting the power supply to the LIFT after fixing it in the identified place where the Purchaser has prepared the Hoist/Well in its premises and such other aspects as mentioned in the contract. The Petitioner cannot be heard to say that it brings different parts of the LIFT and that its activity of assembling the same in the premises of the Purchaser should be construed as one of service. In view of the nature of product that the Petitioner agreed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proposed specifications submitted earlier based on the Purchaser's requirement have been enclosed. A specific Contract number is also provided. Rest of the documents consist of the details of the model, the nature of the machine that would be operating the LIFTS, the brake system, the type of parts that are used in the Machine and the peculiar features of those mechanical aspects. Thereafter, the benefits of the LIFTS are set out, namely, the smooth and controlled acceleration/deceleration, better riding quality, assured leveling accuracy of +/- 5 MM, improved flight time, improved reliability and increased efficiency, reduced power consumption, reduced heat release, flexibility of programme and programming of features at site, enhancing the value of the building where the LIFT is erected and simplified maintenance. The other terms relate to maintenance, wherein the Petitioner's offer of providing 12 months free maintenance, the time from which such maintenance would commence and the conditions upon which such maintenance offered would operate and also making it clear that during the period of maintenance the Purchaser will be the owner and also the circumstances in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk for which the contract was entered into. It is like doing some incidental work for fixing a Fan or an Air Conditioner. Providing a steel scaffolding again is not a matter which can be held to be a contract for works. On the other hand, for the purpose of grouting bolts and fixing the frames in a hoist way, which is stated to be having 30/40 metres height/depth, it has to be mandatorily arranged by someone but here again it will have to be stated that the same cannot be a decisive one for ascertaining the nature of contract, as between the parties. Therefore, on the whole, the terms under the head 'Preparatory Work' does not in anyway persuade us to hold that what was agreed between the parties in this contract was a 'Works Contract'. 61. The next set of conditions contained in the Contract is under the head 'IEEMA Price Variation Clause for Elevator Works Contracts'. As stated earlier, this is the document in which the expression 'Works Contract' has been used. When examining the details contained under the said head what all it says is that the price quoted/confirmed is based on the cost of raw materials/components and labour cost as on the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Clause under the caption 'Works Contract'. Therefore, it can be validly stated that by calling the Price Variation Clause as an 'Elevator Works Contract', the contract cannot be construed as a 'Works Contract'. On the other hand, going by the stipulations contained therein viz., that the claim for manufactured materials should be paid along with material invoice and the installation charges to be paid based on final invoice makes it clear that the contract is divisible in its nature and to call it an indivisible one, is contrary to its own terms. 63. With this, the 'Conditions of the Contract' can be referred to, which contains as many as 27 conditions. These conditions have been elaborately discussed in paragraph 18 of this judgment, to which I once again bestow my serious consideration, in order to appreciate whether, these conditions at least throw any light to state that the contract can be brought within the expression 'Works Contract'. 64. When examining these conditions, in the first instance, the most relevant and clinching condition is the one relating to the payment to be effected by the Purchaser, which is to the effect that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separately worked out in order to ensure that irrespective of the installation, the Petitioner will be able to realize the value of the material cost. This conclusion which is based on the above terms, also strengthens the reasoning that the contract is not an indivisible one and is always separable i.e., one for supply of materials and the miniscule part of the work involved. The division of 90% payment in the first instance and the balance 10% under certain other situations, fully supports the above conclusion. 65. A reference to the various other conditions in the contract also do not suggest that the consideration under the Contract to be borne by the Purchaser, has got anything to do with the installation part of the LIFT. On the other hand, the terms have downright been agreed upon between the parties only to mandate the Purchaser to pay 90% of the contracted amount on mere signing of the contract and to pay the balance 10% within 30 days of the Petitioner's offer to commission the LIFT and even if the said event of commissioning of the LIFT fails to occur due to any reason not attributable to the Petitioner or beyond its control, within 90 days of the materials made rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also states that in the event of any such statutory levy or payment of tax or otherwise faced by the Petitioner, then under such circumstances, that should be borne by the Purchaser. 68. Having considered the above terms of the contract threadbare, I am convinced that it can only be concluded that this contract is only one for the manufacture and supply of the LIFT/ELEVATOR and the installation though mentioned in the contract, has very insignificant relation to the consideration agreed upon between the parties. In any event, as I have found that the contract of supply and installation are divisible in very many aspects, it is difficult to hold that it is a 'Works Contract'. Therefore, it will have to be held that the manufacture, supply and erection of LIFT/ELEVATOR agreed upon by the Petitioner to any of its customers, would only fall within the expression 'Sale' and can never be called as 'Works Contract'. Once that is the conclusion that can be made based on the contractual terms as agreed between the Petitioner and its customers, the application of Article 366(29A)(b) cannot be made and does not in any way support the contentions raised by the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property. Significantly, the expression 'manufacture' is absent in Section 2(jj). 72. Next, as per the agreement, it should be for cash or deferred payment or other valuable consideration. In other words, it must first satisfy the definition of a 'concluded contract' as provided under that Section. In this context, it would be relevant to refer to Section 2(h) and the first part of Section 10 of the Indian Contract Act, 1872. Section 2(h) reads as under: An agreement enforceable by law is a contract. The first part of Section 10 reads as under: What Agreements are contracts All Agreements are Contracts if they are made by the free consent of parties, competent to contract, for a lawful consideration and with the lawful object and are not hereby expressly declared to be void. 73. Therefore, in order for a contract to be valid, it must be one which can be enforced by law and such agreements if made between the parties must be for a lawful consideration and with a lawful object. It is needless to state that for any contract to be valid and lawful, the basic ingredients of offer and acceptance for valuable consideration must be present. Keeping the said provisions rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T/ELEVATOR and keep it ready for dispatch in its premises. In other words, the moment the materials for a LIFT/ELEVATOR are made ready and kept for dispatch in the premises of the Petitioner, under a particular contingency within 90 days thereof, the majority of the contracted amount is to be paid to the Petitioner without any corresponding legally enforceable obligation on the Petitioner to carry out the erection or installation in the premises of the Purchaser. 75. In fact, the period actually agreed between the parties, as per which the Petitioner is to carry out the installation part of the LIFT runs to 52 weeks i.e., for one full year, whereas the whole of the consideration would become payable within 90 days from the date the materials are kept ready for dispatch in the premises of the Petitioner. Therefore, I fail to understand as to how it can be held that there was any sordid agreement as between the Petitioner and the Purchaser for any valuable consideration only for the purpose of carrying out erection/installation of the LIFT in the premises of the Purchaser. If for any reason after the full payment is effectuated by the Purchaser as per the term relating to the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Act stipulates the element of offer, acceptance and consideration for a concluded contract. In the case on hand, the offer would be for supply of the LIFT as described in the proposal made by the Petitioner. The consideration upto 90% would become payable the moment the Purchaser agrees to the proposal made by the Petitioner and the balance 10% can also be collected without any positive guarantee for completion of erection or installation of the LIFT under certain contingencies without any corresponding right in the Purchaser to seek for enforcement of the erection/installation. In fact for payment of the balance 10% under such contingencies, what all the Petitioner has to show is that the materials meant for the supply of the LIFTS are ready for dispatch in its premises, which would mandate the Purchaser to make the payment within 90 days of such readiness as reported by the Petitioner. In effect such a contract as agreed between the Petitioner and its Purchaser as per the provisions of the Indian Contract Act if were to be considered for the invocation of the definition of 'Works Contract' under Section 2(jj), it can be found that the said contract does not in any way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that these provisions are meant for getting a permit, licence, registration etc. and for the purpose of ensuring that in the course of the installation, as well as, while the LIFT is in operation or in the course of the maintenance of the LIFT, no damage is caused to men and materials. Beyond that, based on the said provisions there is no scope to reach a conclusion that a contract as between the Petitioner and the Purchaser would come within the definition of the 'Works Contract'. Therefore, the said submission of the learned Senior Counsel cannot also be accepted. 81. The learned Senior Counsel then referred to a decision of the Government of India reported in In Re: OTIS Elevator Co. (India) Ltd. (supra), which has been dealt in paragraph 38 of this judgment. I fail to see any scope to rely on the said decision, as it is only that of the Department of Government of India. Even otherwise, the said decision was for the purpose of finding out as to whether 'excise duty' was payable at the time when the manufactured parts of elevators/escalators were cleared from the premises of the Petitioner. I do not find any scope at all to apply the said conclusion of the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable to another taxing statute may not be applied to a case governed by sales tax statutes. Keeping the above fundamental principle in mind, an examination of Section 65(29), defines 'commissioning and installation agency' to mean any agency providing service in relation to erection, commissioning or installation. Section 65(39a) further defines the expression 'erection, commissioning or installation' to mean any service provided by any such agency, in relation to, inter alia installation of LIFT and escalation. Section 65(105) (zzd) defines 'Taxable Service' inter alia to mean service provided or to be provided to any person by erection, commissioning or installation agency in relation to commissioning and installation. Therefore, reading the above provisions together, what emerges is that any service provided by way of commissioning and installation of LIFT and Escalators by any agency would be a Taxable Service. Once the said position is steered clear of, the other provision referred to was Section 65(105) (zzzza), which again is one other taxable service, namely, a service to any person by any other person in relation to the execution of 'Works C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing to do with manufacture and supply which is actually the activity of the Petitioner. It is regarding the erection/commissioning/installation simpliciter, even if the LIFT or Escalator is independently carried out by an Agency. According to me, by relying upon Section 65 (29), 65 (39a) and Section 105 (zzd), the case of the Petitioner cannot be comprehensively answered and he further cannot possibly contend that the contract should be construed as a works contract. Therefore, on the ground of any liability being cast on the Petitioner under the provisions of the Service Tax Act, it will be wrong to hold that the Petitioner cannot be called upon to comply with the provisions relating to Sales Tax. The said submission of the learned Counsel is, therefore, liable to be turned down. 86. On examination of the various decisions, which were relied upon by the learned Senior Counsel, the first case was the Division Bench decision of the Bombay High Court in OTIS Elevators Co. (India) Ltd. (supra). It is true that in the said decision the Bombay High Court dealt with the very same issue, namely, whether supply, erection, installation of LIFT by the Petitioner would fall within the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermining the intention of the parties. The time-limit fixed for doing the work, the mention of and all-inclusive price for the totality of the materials and services rendered, the absence of an agreement for the sale of chattel as chattel, the point of time when, the property in the goods passed from the applicants to the opposite party, the nature of the contract undertaken by the Applicants under and the indivisibility of the contract, are all factors which would indicate what should be the proper construction of the contract entered into between the parties. 91. The Division Bench then felt it necessary to examine the terms of the contract and the surrounding circumstances and ultimately reached its conclusion as under: In this connection the mode of payment set out in clause 4 is also pertinent. Under that clause 30% of the price was to be paid within 30 days from the date of the acceptance of the proposal, 60% was to be paid on receipt of shipping documents from the factories, and the remaining 10% had to be paid, subject to adjustments required, on completion of the erection, or, in any case, within six months of the delivery of the equipment, if the erection was delayed due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasoning, which weighed with the learned Judges in the judgment rendered in Kone Elevators (India) Pvt. Ltd. (supra). In the said judgment this very question which has been referred to this Constitution Bench directly arose for consideration. The present Petitioner when submitted its returns under the provisions of the Andhra Pradesh General Sales Tax Act, 1957 for the period 1.04.1995 to 31.05.1995 and 01.06.1995 to 31.07.1995, provisional assessments were made by the Commercial Tax Officer by order dated 19.08.1995 and 05.09.1995, respectively. The claim of the Petitioner by way of deductions of labour charges for composition of Tax under Section 5G read with Section 5F of the said Act, on the ground that the nature of work undertaken by it constitutes a 'Works Contract', was rejected by the Assessing Authority holding that the same amounted to 'Sale'. The appeal preferred by the Petitioner was also rejected. The further appeal to the Tribunal was allowed in favour of the assessee holding that the activities of the Petitioner would fall within the expression 'Works Contract' and not 'Sale'. The Department's challenge in the High Court also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the brochure, it is open for a prospective buyer to place purchase order for supply of lifts as per his convenience and choice. Therefore, the assessee satisfies, on facts, the twin requirements to attract the charge of tax under the 1957 Act, namely, that it carries on business of selling the lifts and elevators and it has sold the lifts and elevators during the relevant period in the course of its business. In the present case, on facts, we find that the major component of the end product is the material consumed in producing the lift to be delivered and the skill and labour employed for converting the main components into the end product were only incidentally used and, therefore, the delivery of the end product by the assessee to the customer constituted a sale and not a works contract . Hence, the transactions in question constitute sale in terms of Entry 82 of the First Schedule to the said Act and, therefore, Section 5-G of the said Act was not applicable. 95. It can be concluded that the reasoning of this Court in the above-referred decision is in tune with the law on the subject and it should be held that could be the only reasoning which can be assigned, having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C division of Larsen and Toubro (for short, L T ) is engaged in property development along with the owners of vacant sites. On 19.10.1995, L T entered into a development agreement with Dinesh Ranka, owner of the land bearing survey numbers 90/1, 91, 92 (Part), 94, 95 and 96/1 (Part) together measuring 34 acres all situated at Kothanur Village, Bengur Hobli, Bangalore South Taluk, Bangalore, for construction of a multistoreyed apartment complex. The owner was to contribute his land and L T was to construct the apartment complex. After development, 25% of the total space was to belong to the owner and 75% to L T. A power of attorney was executed by the owner of the land in favour of L T to enable it to negotiate and book orders from the prospective Purchasers for allotment of built up area. Accordingly, L T entered into agreements of sale with intended Purchasers. The agreements provided that on completion of the construction, the apartments would be handed over to the Purchasers who will get an undivided interest in the land also. Sale deeds, thus, were executed in favour of the intended Purchasers by L T and the owner. 98. In the said case on behalf of Larsen and Toubro, it was arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment, the Bench held that tax on the sale or purchase of goods may include a tax on the transfer in goods as goods or in a form other than goods involved in the execution of the works contract. It was also held that it would be open to the States to divide the works contract into two separate contracts by legal fiction, namely: (ii) Contract for Sale of Goods involved in the works contract and (iii) For supply of the labour and service. 103. It was then observed that by implication of the 46th Amendment, States have been empowered to bifurcate the contract and to levy sales tax on the value of the material in the execution of the works contract by holding it to be a deemed sale. 104. As far as the implication of Article 366(29A)(b) after the 46th Amendment as held above is concerned, the same cannot be faulted. However, at this juncture, it will have to be kept in mind that in that decision, this Court was dealing with a contract relating to development of land in which, the Developer and owner of the land and the prospective Purchaser after the development in the form of constructed building units were parties. By virtue of the nature of the contract and its terms, immovable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 366(29A)(b) is amply wide and cannot be confined to a particular understanding of the term or to a particular form. The term encompasses a wide range and many varieties of contract. The Parliament had such wide meaning of 'Works Contract' in its view at the time of Forty-sixth Amendment. The object of insertion of clause 29A in Article 366 was to enlarge the scope of the expression 'tax of sale or purchase of goods' and overcome Gannon Dunkerley-13. Seen thus, even if in a contract, besides the obligations of supply of goods and materials and performance of labour and services, some additional obligations are imposed, such contract does not cease to be works contract. The additional obligations in the contract would not alter the nature of contract so long as the contract provides for a contract for works and satisfies the primary description of works contract. Once the characteristics or elements of works contract are satisfied in a contract then irrespective of additional obligations, such contract would be covered by the term 'Works Contract'. Nothing in Article 366(29A) (b) limits the term 'Works Contract' to contract for labor and service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, as a general proposition of law, it will not be appropriate to hold that wherever an element of works is involved irrespective of its magnitude, all contracts should be held to be 'Works Contract'. Since the argument made by the Advocate General of Maharashtra, which weighed with the learned Judges in the said decision does not appear to be an appropriate reasoning, it will have to be held that such a proposition laid in paragraph 76 to hold every contract as 'Works Contract' based on a minuscule element of 'works' involved cannot be accepted. 109. In paragraph 66 of Larsen Toubro Ltd. (supra), it was observed that in Bharat Sanchar (supra), this Court reiterated what was stated earlier in Associated Cement Companies Ltd. vs. Commissioner of Customs (2001) 4 SCC 593 that 'Dominant Nature Test' has no application to a composite transaction covered by the Clauses of Article 366(29A). Therefore, it was concluded that there was no ambiguity in stating that after the 46th Amendment the sale element of those contracts which are covered by six sub-clauses of Clause 29A of Article 366 are separable and may be subjected to sales tax by the States ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ultimately held by accepting the argument of the learned Advocate General of Maharashtra that the term 'Works Contract' cannot be confined to a contract to provide labour and services alone. The said conclusion having regard to the nature of contract which was dealt with in the said judgment could not be in any way contradicted since as noted earlier, in Larsen Toubro Ltd. (supra) the contract related to development of a property which consisted of the developer, the owner and the prospective Purchasers of the ultimate building units constructed. In that context, whatever held in paragraph 76 to the effect that a contract which was undertaken to bring into existence some element of works, would be sufficient to hold the said as a 'Works Contract', would be perfectly in order. The question is as to whether such a ratio can be applied universally to every other contract where some miniscule or insignificant element of works is involved. In fact, in the case on hand when the very contract itself was for supply of LIFT to its Purchaser, simply because there was some work element involved for the purpose of installation of the LIFT, it cannot be held that the whole con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contract' and, therefore, since the very first condition is not fulfilled, the other conditions are of no consequence in order to invoke Article 366(29A)(b) to the case on hand. 114. Even when the ultimate conclusion as noted in paragraph 101(x) is applied, the supply of LIFT by the Petitioner to its Purchaser satisfies the definition of 'Sale' as defined under the Sale of Goods Act, and, therefore, the question of deemed sale does not arise. Analyzing the decision from all frontiers it can be concluded that the ratio laid down in Larsen Toubro Ltd. (supra) which related to a construction contract, cannot be applied to the case on hand, and therefore, would not be a sufficient reasoning to hold the present contract as 'Works Contract'. 115. Once the application of Larsen Toubro Ltd. (supra) judgment to the facts of this case has been steered clear, next it is to be found out as to whether the other judgments relied upon by the learned Senior Counsel for the Petitioner support his submission, claiming that the transaction, namely, manufacture, supply and installation of LIFT is a 'Works Contract' or not. Reliance was placed upon the decision of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it will have to be held that it will not be safe to apply the said ruling to the facts of this case where the contract is definite and the terms of the contract sufficiently demonstrate that it is one for supply of LIFT and not a contract for works. 117. Mr. Dwivedi, learned Senior Counsel appearing for State of Orissa in support of his submission relied upon the Constitution Bench decision of this Court in M/s. Patnaik and Company (supra). In paragraph 28 as a proposition of law, the Constitution Bench has held as under: 28. In Commissioner of Sales Tax, U.P. v. Haji Abdul Majid [1963] 14 STC 435 (All), the Allahabad High Court arrived at the conclusion that in the circumstances of the case the transaction was a contract for the sale of bus bodies and not a contract for work and labour. Desai, C.J., rightly pointed out at p. 443 that since it makes no difference whether an article is a readymade article or is prepared according to the customer's specification, it should also make no difference whether the assessee prepares it separately from the thing and then fixes it on it or does the preparation and the fixation simultaneously in one operation. 118. Thereafter, while repell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (Emphasis Added) 121. When the above principles are applied to the facts of this case, it can be aptly held that the present contract is nothing but a contract for 'Sale' and not a 'Works Contract'. 122. A profitable reference can also be made to another Constitution Bench decision of this Court in Commissioner of Commercial Taxes Mysore, Bangalore (supra). The question that arose for consideration was as to whether construction of railway coaches from the materials belonging to railways under a contract is a sale or works contract. Dealing with the said question, this Court held as under in paragraphs 12 and 13: 12. On these facts we have to dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a contract between Union of India and Central India Machinery Manufacturing Company Limited was a contract of 'Sale' or 'Works Contract'. Dealing with the said question, this Court after making a detailed reference to the various terms of the contract as between the Appellant and Respondent therein, held as under in paragraphs 31 and 32: 31. The upshot of the above discussion is that with the exception of wheelsets (with axle boxes and couples), 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 wagons 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters and steel works who used to manufacture iron shutters according to specifications given by the parties and fix the same at the premises of the customers. This Court after considering the terms of the contract took the view that the same would amount to a 'Works Contract' and not 'Sale'. However, in paragraph 2, the principle to be applied to find an answer to such a question has been set out as under: 2 .The question as to under what circumstances a contract can be said to be a work contract is not free from difficulty and has to depend on the facts of each case. It is difficult to lay down any rule of universal application, but there are some well recognised tests which are laid down by decided cases of this Court which afford guidelines for determining as to whether a contract in question is a work contract or a contract for supply of goods. One of the important tests is to find out whether the contract is primarily a contract for supply of materials at a price agreed to between the parties for the materials so supplied and the work or service rendered is incidental to the execution of the contract. If so, the contract is one for sale of materials and the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the performance of the contract is not sufficient; to constitute a sale there must be an agreement express or implied relating to the sale of goods and completion of the agreement by passing of title in the very goods contracted to be sold ... (Emphasis Added) 129. Even applying the above principle to the case on hand, I find that the whole of the materials manufactured for the installation of the LIFT belong to the Petitioner and after the installation of the LIFT and after receipt of the full payment, the title to the LIFT passes on to the Purchaser. Hence, it will have to be held that the contract as between the Petitioner and the Purchaser was nothing but a 'Sale' and not a 'Works Contract'. 130. Dr. Singhvi, learned Additional Advocate General for Rajasthan in his submissions contended that to find out an answer to the question whether the present contract for supply of LIFT and its installation is a sale or works contract, the test which were invoked prior to the 46th Amendment continue to remain. In support of the said submission the learned Additional Advocate General relied upon a three Judge Bench decision of this Court in Bharat Sanchar (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been noted to understand the distinction between contract of sale and contract for work and labour. The said paragraph as extracted in paragraph 8 of the said judgment can be usefully referred to, which reads under: 8. We will shortly revert back to analysing the abovesaid terms and conditions of the contract and in between try to find out the tests which would enable determination of the nature of the transactions covered by such contracts. The distinction between contract of sale and contract for work and labour has been so stated in Halsbury's Laws of England (4th Edn., Vol. 41, para 603): 603. Contract of sale distinguished from 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 one. A contract of sale is a contract the main object of which is the transfer of the property in, and the delivery of the possession of, a chattel as such to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel as such, the contract is one for work and labour. The test is whether or not the work and labour bestowed end in anything that can pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for Karnataka, it can be found in paragraph 94 of Larsen Toubro Ltd. (supra), that the first condition stated therein is that it must be a 'Works Contract'. Therefore, while all building contracts have been held to be 'Works Contract' by virtue of the Constitution Bench decision in Builders' Association of India (supra), when it comes to the question of other contracts, if the ingredients of Article 366(29A) are to be applied, the first exercise to be carried out is to find out as to whether such contract would fall within the definition of 'Works Contract'. It must be stated at the risk of repetition that simply because some element of work is involved in a contract, it cannot be straight away concluded that such contract would become a works contract, irrespective of the nature of contract, which if probed into would show that it is a contract for sale. Therefore, even going by the decision reported in Builders Association of India (supra), as well as, the conditions set out in paragraph 94 of the Larsen Toubro Ltd. (supra), it shall be ascertained whether the contract of the Petitioner with its Purchaser falls within the definition of 'Works Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Govt. of Andhra Pradesh vs. Guntur Tobaccos Ltd. reported in AIR 1965 SC 1396. Paragraph 18 is relevant for the case on hand, which reads as under: 18. The fact that in the execution of a contract for work some materials are used and property in the goods so used passes to the other party, the contractor undertaking to do the work will not necessarily be deemed on that account to sell the materials. A contract for work in the execution of which goods are used may take one of three forms. The contract may be for work to be done for remuneration and for supply of materials used in the execution of the works for a price: it may be a contract for work in which the use of materials is accessory or incidental to the execution of the work: 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
