TMI Blog2004 (4) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... d getting payments but thereafter, on the basis of a clarification issued by the Commissioner of Taxes, the Superintendent of Taxes at Digboi informed the respondent, North Eastern Coal Fields that the petitioner-company is liable to pay sales tax and this was to be deducted at 5 per cent from the bills submitted by the firm. The petitioner has challenged the said clarification by the Commissioner of Taxes as well as the letter issued by the Senior Superintendent of Taxes, Digboi. 4.. The case of the petitioner is that the power to levy sales tax in respect of transfer of right to use any goods was conferred on the State Legislature by the 46th Amendment to the Constitution. The power of the State Legislature to impose sales tax on the sale and purchase of goods emanates from entry 54 of List II of the Seventh Schedule to the Constitution of India. By the 46th Amendment of the Constitution of India, clause (29A) was inserted in article 366 of Constitution of India whereby the scope and ambit of "tax on sale and purchase of goods" was widened and a tax on the transfer of the right to use goods was included within the purview of the meaning of sale and purchase of goods. 5.. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the balance coal extracted must be of ash content not more than 15 per cent. 4.. Method of work: For extraction of coal overburden has to be removed in the form of a series of benches ensuring that height of the bench conforms to the boom height of the machine deployed as per Coal Mines Regulation, 1957. 1.3 The word 'HEMM' means Heavy Earth Moving Machineries and includes its spares, accessories, etc., to be deployed by the HEMM operator for the purpose of carrying out the excavation work undertaken by the HEMM operator. 2.0 Scope and performance: 2.1. The work to be carried out under the contract shall include all labour, machineries, plant, equipment, tools and transport which may be required in preparation of and in the full and entire execution and completion of the works in accordance with good practice and recognised principles. 11.0 Measurement of work: 11.1 All the payment will be made on measurement basis, the measurement being taken in different sections and plotted in the section sheets maintained by Coal India Ltd. The measurement shall be duly entered in the company's measurement book. The HEMM operator or their authorised agent having due power of atto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion with DVC for removal of overburden." 9.. Section 27(1)(a) of the Assam General Sales Tax Act, 1993 reads as follows: "Every person excluding an individual, a Hindu undivided family, a firm or a company not under the control of the Government responsible for making any payment or discharging any liability on account of any amount payable for the transfer of property in goods (whether as goods or in some other form) involved in a works contract specified in Schedule VI or for the transfer of the right to use any goods specified in Schedule VII for any purpose." 10. Accrual of the right to use goods within the meaning of section 27(1)(a), as quoted above, read with article 366 of the Constitution necessarily involves delivery of possession of the transferor to the other side. In the case of Rashtriya Ispat Nigam Ltd. v. Commercial Tax Officer, Company Circle, Visakhapatnam [1990] 77 STC 182, the honourable Andhra Pradesh High Court, speaking through His Lordship Syed Shah Mohammad Quadri, J., held: "An owner of property has a bundle of rights in it, namely, right to possess, right to use and enjoy, right to usufruct, right to consume, to destroy, to alienate or trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of the transfer of right. In other words, right to use arises only on the transfer of such a right and unless there is transfer of right, the right to use does not arise........ A sale of any goods is complete when the property in the goods passes to the purchaser pursuant to a contract of sale of those goods. So also, a deemed sale of goods under sub-clause (d), as has been pointed out above, will be complete when the control of the goods in which the right to use is transferred, passes to the transferee under the contract of transfer. Such a transfer of right to use any goods may be effected either by the execution of a written contract between the parties indicating the mode by which giving the control or domain of the goods to the hirer is contemplated or by an oral contract coupled with delivery of the goods to the hirer. There can be no oral contract with regard to unascertained goods because there can be no delivery of such goods. Where a written contract exists whether in regard to ascertained goods or unascertained goods, the intention of the parties, as evidenced by the terms of the contract, to 'transfer of right to use the goods' is determinative of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall in accordance with and subject to the terms and conditions of this contract perform the work described in the terms of reference. 4.2. Except as otherwise provided in the terms of reference and the special conditions of contract, provide all labour and other personnel as required to perform the work. 4.3. Contractor shall be responsible for (a) Supervision during operation of the crane. (b) Supervision during shifting of the crane from one location to another. (c) Maintenance of the crane and other equipment. 4.5. Contractor shall arrange for regular and periodical maintenance of the crane and other equipments including replacement of worn-out parts/supply of all spare parts at contractor's own cost and ensure a smooth and breakdown free operation. 4.7. The fuel and lubricants required for operation of the crane will be supplied by contractor at its own cost and responsibility. 4.14. Contractor shall arrange and provide extra labour as and when required with company's prior approval of quantity and rates and company agrees to reimburse costs of the same. This provision will normally be limited to exceptional cases. 4.15. The contractor will deploy expert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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