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TMI Blog2015 (7) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ited Versus State of Andhra Pradesh and Others [2009 (2) TMI 457 - SUPREME COURT OF INDIA ] and Benara Valves Ltd. Versus Commissioner of Central Excise and Another[2006 (11) TMI 6 - SUPREME COURT OF INDIA] followed - The impugned order dated 19.06.2015 passed by the Tribunal is modified and a direction is issued to the Appellate Authority to decide the appeal of the revisionist expeditiously in accordance with law within a period of two months from the date of receipt of the certified copy of this order. - Decided in favour of assessee. - Trade Tax Revision No. - 46 of 2015 - - - Dated:- 3-7-2015 - Hon'ble Anil Kumar,J. For the Applicant : Vaibhav Pandey, Rahul Aggarwal For the Respondent : C.S.C. ORDER This revision has been filed against the order of the Commercial Tax Tribunal dated 19.06.2015. Briefly stated the facts are that M/s Otis Elevators Company Ltd. is a Public Ltd. Company registered under the U.P. Vat Act, 2008 (hereinafter referred to as the Act, 2008) and is engaged in the business of manufacturing of parts and components of lifts and elevators in offices, residential buildings, Government buildings etc. Assessment proceedings were in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but directed the revisionist to deposit the remaining 50% amount within 30 days. The revisionist being aggrieved next filed the appeal before the Commercial Tax Tribunal and the Tribunal modified the order of the Additional Commissioner (Appeals) and granted stay to the extent of 80% of the total demand on the furnishing of security and remaining 20% was required to be deposited within 30 days. I have heard Sri Vaibhav Pandey and Rahul Agarwal learned counsel for the revisionist and Sri Sanjeev Shankhdhar, learned counsel for the respondents. learned counsel for the revisionist has referred to the provision to Section 9 of the U.P. Value Added Tax Rules, 2008 which reads as follows: 9. Determination of turnover of sale of goods involved in the execution of a works contract,- (1) Subject to other provisions of these rules, the tax on turnover of sale of goods where such sale is affected by way of transfer of property in goods (whether as goods are in some other form) involved in the execution of a work contract shall be computed on the taxable turnover of sale of taxable goods. For the purposes of determining the taxable turnover of sale of such goods, the amounts spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revisionist at its factory in Karnataka and in terms of works contract executed for the said periods, the goods and parts are then sent to the customer's site for installation of lifts/elevators. The goods are received by way of stock transfer in U.P. from the office of the assessee situate outside U.P. and are used in the execution of the works contract and this transaction has resulted in the movement of goods from one state to another. Learned counsel for the revisionist has contended that the contract in question is a composite contract for sale and installation of lifts and labour and service are involved and manufactured goods such as lift car, motor, ropes, rails etc. are all components of the lift which is eventually installed at the site for the lift to operate in the building, and therefore, the contract is a works contract and not a contract for sale. Reliance has been placed upon a recent decision of the Constitution Bench of the Supreme Court reported in 2014 71 VST 1 (SC) Kone Elevator India Pvt. Ltd. Vs. State of Tamilnadu, which has overruled the earlier decision in the case of State of Andhra Pradesh Vs. Kone Elevator (2005) 140 STC 22 (SC). Paragraph 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rately 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 has been reached in Kone Elevators (supra), is based on the bedrock of incidental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 35 of the judgment reads as under: 35. In view of the above, the aforesaid authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie case on merit. In case it is covered by the judgment of a Court/Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be no financial restrain on the appellant running in a good financial condition. The arguments that appellant is in a position to deposit or if he succeeds in appeal, he will be entitled to get the refund, are not the considerations for deciding the application. The order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full or substantive part of the demand. Petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases without analysing factual scenario involved in a particular case. In my opinion, since the assessing authority has made the assessment relying exclusively on the earlier judgment of the Supreme Court in State of Andhra Pradesh Vs. M/S Kone Elevator, (2005) 140 STC 22 (S ..... 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