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2015 (6) TMI 583 - TRIPURA HIGH COURT

2015 (6) TMI 583 - TRIPURA HIGH COURT - [2015] 81 VST 536 (Tri) - Nature of Contract - transfer of property for providing services is involved in the contract or not - whether the services being rendered by the petitioner company are in the nature of works contract or are pure and simple services - joint venture - use of machinery for doing Seismic surveys activity - Held that:- The petitioner is not engaged in drilling work but was only engaged for carrying out seismic survey work. The said wor .....

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ontractor. - These provisions of the contract clearly indicate that the contractor's equipment remained his equipment solely under his control and even the equipment of the company, if any, given to him did not become his equipment but remained the equipment of the company. Therefore, there was no transfer of right to use goods and the petitioner was only rendering services which are only amenable to tax by the Union of India and not by the State. - Decided in favour of assessee. - W. P. (C) No. .....

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cessing Services to Jubilant Oil and Gas Private Limited which is engaged in oil exploration in the State. The contract between the parties has been produced before this Court and the only question is whether the services being rendered by the petitioner company are in the nature of works contract or are pure and simple services. The other issue is whether the equipment which have been brought in by the petitioner for their own use to carry out the surveys has been transferred to Jubilant Oil an .....

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nce of a contact, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involed in the execution of a works contract; (c) a tax on the delivery of goods on hire purchase or any system of payment by installments; (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideratio .....

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ply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made;" [3] The case of the State is that since a tax on the sale or purchase of goods includes in terms of sub-clause (d) of Article 366(29A) tax on the transfer of the right to use any goods for any purpose the petitioners are liable to pay value added tax on such transfer of right to use .....

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e Finance Act of 1994. [4] Before dealing with other issues it would be pertinent to mention that the Apex Court in State of Madras Vrs. Gannon Dunkerley & Co (Madras) Ltd., AIR 1958 SC 560 held that the State had no power to tax a composite contract of goods and services (works contract) to be taxed as sale of goods. The Court further held that the law also does not permit the severance of the contract for determining the value of the goods. [5] In view of this decision of the Apex Court, i .....

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se not have fallen within the definition of sale. Sub-clauses (a) to (f) to Clause 29A of Article 366 of the Constitution bring within the ambit of sale, transactions where one or more of the essential ingredients of sale as traditionally understood were absent. By legal fiction such transactions, transfers and supply of goods were deemed to be sale and purchase of the goods. [6] After amendment of the Constitution the Apex Court in Gannon Dunkerley and Co. Vs. State of Rajasthan: 1993(1) SCC 36 .....

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tate. [7] In the cases before us the contracts are for hiring of goods and services. The stand of the State is that ONGC has exclusive use and right to use the goods involved in the contracts and therefore there is transfer of the right to use goods and as such tax is leviable under Section 4(3) of the TVAT Act read with Rule 7(2) of the Rules. It is further contended that in terms of Section 4(3) of the Act the person making payment on this account is bound to deduct tax as leviable under law. .....

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orks contract which has actually been paid to the dealer during the period, shall be taken into account for determining the turnover for the period. Explanation :- For the purpose of this section, "Property in goods" shall mean the aggregate of the goods for which amounts have been received or receivable by a dealer during such period as valuable consideration, whether or not such amount has been separately shown in the works contract. The amount as received or receivable shall include .....

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any purpose (whether or not for a specified period) shall be taxable at the rate as specified in the Schedule. (3) Deduction of tax at the time of payment- Every person responsible for paying) any sum to any person on account of works contract and right to use any goods for any purpose, shall at the time of credit of such sum to account of the person or at the time of payment thereof in cash or by issue of a cheque or draft or any other mode, deduct such amount towards sales tax (not being more .....

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making such payment deduct an amount at the rate as notified by the Government from time to time of the payment on account of such transfer of right : provided that till the Government notify the rate, the prevailing rate shall continue : Provided no such deduction shall be made from the bill(s) or invoice(s) of the transferer where the amounts received as penalty for defaults in payment or as damages for any loss or damage caused to the goods by the person to whom such transfer was made, ****&q .....

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Court: "The questions therefore, that arise for consideration in these cases are, whether a State can levy sales tax on transfer of right to use goods merely on the basis that the goods put to use are located within its State irrespective of the facts that- (a) the contract of transfer of right to use has been executed outside the State: (b) sale has taken place in the course of an inter-State trade; and (c) sales are in the course of export or import into the territory of India.****" .....

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s are available, the transfer of the right to use takes place when the contract in respect thereof is executed. As soon as the contract is executed, the right is vested in the lessee. Thus, the situs of taxable event of such a tax would be the transfer which legally transfers the right to use goods. In other words, if the goods are available irrespective of the fact where the goods are located and a written contract is entered into between the parties, the taxable event on such a deemed sale wou .....

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view that where the goods are in existence, the taxable event on the transfer of the right to use goods occurs when a contract is executed between the lessor and the lessee and situs of sale of such a deemed sale would be the place where the contract in respect thereof is executed. Thus, where goods to be transferred are available and a written contract is executed between the parties, it is at that point situs of taxable event on the transfer of right to use goods would occur and situs of sale .....

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he job rendered by a photographer in taking photographs, developing and printing films would amount to a works contract within the meaning of sub-clause (b) of Article 366 Clause 29A of the Constitution. It held as follows: "Prior to the amendment of Article 366, in view of the judgment of this Court in State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. (1958) 9 STC 353: AIR 1958 SC 560 the States could not levy sales tax on sale of goods involved in a works contract because the co .....

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transfer the property in goods and not in contracts where the transfer in property takes place as an incident of contract of service……...What is pertinent to ascertain in this connection is what was the dominant intention of the contract… ….On facts as we have noticed that the work done by the photographer which as held by this Court in STO vs. B.C. Kame (1977) 1 SCC 634 is only in the nature of a service contract not involving any sale of goods, we are of the opinion .....

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a Vrs. Union of India : (1989) 2 SCC 645" [10] In State of A.P and Another Vrs. Rashtriya Ispat Nigam Ltd.: (2002) 3 SCC 314 the Apex Court dealt with meaning of the phrase "transfer of right to use goods". In that case the Rashtriya Ispat Nigam was the owner of the Visakhapatnam Steel Project. It engaged various contractors to do the work and supplied sophisticated machines to the contractors for being used in execution of the contracted works. The Rashtriya Ispat Nigam Ltd. rece .....

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k of the respondent or move out the machinery during the period of contract. The Court went on to hold that the condition that the contractor would be responsible for the custody of the machinery while it was on the site did not militate against the possession and control of the Ispat Nigam over the property. The Apex Court upheld the judgment of the High Court of Andhra Pradesh. [11] In Bharat Sanchar Nigam Ltd. and another Vs. Union of India and others, (2006) 3 SCC 1 the Apex Court was dealin .....

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ansaction has characteristics of both sale and service then the moot question would be whether legislative authorities could levy separate taxes together or only one of them. The Apex Court dealt with the following question: "The principal question to be decided in these matters is the nature of the transaction by which mobile phone connections are enjoyed. Is it a sale or is it a service or is it both? If it is a sale then the States are legislatively competent to levy sales tax on the tra .....

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t argued that they were only providing service and there was no transfer of right to use goods. On the other hand it was contended by the State that there was transfer of the right to use goods and hence the transactions should be treated to be sales and were amenable to sales tax. Dealing with sub clause (29A) of the Article 366 of the Constitution the Apex Court held as follows: "41. Sub-clause (a) covers a situation where the consensual element is lacking. This normally takes place in an .....

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t transferred. Yet by fiction of law, it is treated as a sale. Similarly the title to the goods under Sub-clause (d) remains with the transferor who only transfers the right to use the goods to the purchaser. In other words, contrary to A.V. Meiyappan decision a lease of a negative print of a picture would be a sale. Sub-clause (e) covers cases which in law may not have amounted to sale because the member of an incorporated association would have in a sense begun as both the supplier and the rec .....

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urchase and sales for the purposes of levy of sales tax. To this extent only is the principle enunciated in Gannon Dunkerly limited. The amendment especially allows specific composite contracts viz. works contracts (Sub-clause (b)), hire purchase contracts (Sub-clause (c)), catering contracts (Sub-clause (e)) by legal fiction to be divisible contracts where the sale element could be isolated and be subjected to sales tax. 43. Gannon Dunkerley survived the 46th Constitutional Amendment in two res .....

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to known legal connotations. This does not mean that the content of the concepts remain static. The courts must move with the times. But the 46th Amendment does not give a licence, for example, to assume that a transaction is a sale and then to look around for what could be the goods. The word "goods" has not been altered by the 46th Amendment. That ingredient of a sale continues to have the same definition. The second respect in which Gannon Dunkerley has survived is with reference to .....

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ately attributable to the principles enunciated in Gannon Dunkerley's case, namely, if there is an instrument of contract which may be composite in form in any case other than the exceptions in Article 366(29-A), unless the transaction in truth represents two distinct and separate contracts and is discernible as such, then the State would not have the power to separate the agreement to sell from the agreement to render service, and impose tax on the sale. The test therefore for composite con .....

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dealt with the question as to whether the dominant nature test would continue to apply even in respect of contracts falling within the ambit of Clause 29A of the Constitution. The Apex Court held as follows: "49. We agree. After the 46th Amendment, the sale element of those contracts which are covered by the six sub-clauses of clause (29A) 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 t .....

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f contract and intention. The seller and such purchaser would have to be ad idem as to the subject matter of sale or purchase. The Court would have to arrive at the conclusion as to what the parties had intended when they entered into a particular transaction of sale, as being the subject matter of sale or purchase. In arriving at a conclusion the Court would have to approach the matter from the point of view of a reasonable person of average intelligence." [14] After referring to 20th Cent .....

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deliverable and delivered at some stage. It is assumed, at the time of execution of any agreement to transfer the right to use, that the goods are available and deliverable. If the goods, or what is claimed to be goods by the respondents, are not deliverable at all by the service providers to the subscribers, the question of the right to use those goods, would not arise." [15] BSNL case has been relied upon by both the parties and the opening portion of the judgment makes it clear that the .....

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t also supplied the advertising material to its customers. It raised bills under two heads; (1) the bills raised for conceptualizing and designing were treated to be in the nature of service and service tax was paid on the same. (2) With regard to the goods it supplied to its customers, the company treated the said transaction as sale and paid sales tax on the same. When the matter came up before High Court it rejected the plea of the assessee holding that the contract was a comprehensive contra .....

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as also supply of goods constituting a sale. Both, in Tata Consultancy (2005) 1 SCC 308 as also in Associated Cement Company (2001) 4 SCC 593, what was in issue was the value of the goods and only for the said purpose, this Court went by the definition thereof both under the Customs Act as also the Sales Tax Act to hold that the same must have the attributes of its utility, capability of being bought and sold and capability of being transmitted, transferred, delivered, stored and possessed. As .....

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of is in question, the Court may have to take recourse to various theories including "aspect theory" as was noticed by this Court in Federation of Hotel & Restaurant Association of India, etc. v. Union of India& Ors. [(1989) 3 SCC 634]. 29. If the submission of Mr. Hegde is accepted in its entirety, whereas on the one hand, the Central Government would be deprived of obtaining any tax whatsoever under the Finance Act, 1994, it is possible to arrive at a conclusion that no tax a .....

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ll known, should be applied only to the extent for which it was enacted. It, although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the legislature or which would lead to an anomaly or absurdity. 31. The Court, while interpreting a statute, must bear in mind that the legislature was supposed to know law and the legislation enacted is a reasonable one. The Court must also bear in mind that where the application of .....

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t nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract, irrespective of the element of service provided. The approach of the assessing authority, to us, thus, appears to be correct." [17] The Apex Court in BSNL's case clearly held that in a contract falling under Clause 29A of Article 366 of the Constitution the dominant nature test would not apply and the contract could be split up to determine .....

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Travel House Ltd. (Sale Tax Appeal No. 10 of 2009 decided on 8th September, 2009) reported in VAT and Service Tax Cases 77 STC 182 was dealing with a case wherein the International Travel House had entered into a contract with M/s. New Delhi Power Limited (NDPL) for hiring of Maruiti Omni Cabs by the former to the latter. The conditions laid down provided that all the chauffeurs should wear uniforms and should know both Hindi and English. They should all have mobiles. The cars should be kept cle .....

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of Article 366(29A) the Delhi High Court held that only if it was the intention of the parties to sever the contract into two separate values in respect of goods and services could the contract be so divided. The Delhi High Court held as follows: "10. Where the sale is distinctly discernible in the transaction i.e. the contracts are by intention of the parties severable so that there are separate values with respect to goods and services, only then one cannot deny the legislative competenc .....

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n of India & Anr., (2005) 4 SCC 214 it was held that mutual exclusivity which is referred to in Article 246(1) means that taxing entries must be construed so as to maintain exclusivity. Though liberal interpretation must be given to the taxing entries, however in substance if the statute is not referable to a field given to the State, then the Court will not by a principle of interpretation allow a statute to include in its field what is not covered in its field. The aspect' theory (viz. .....

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to tax composite contracts comprising of both goods and services. Not only the contracts cannot be artificially split up so as to enable the sale element to be taxed, further, the States cannot treat the contract as only a contract of sale of goods and tax the whole value of the transaction as a sale of goods. Since the parties have not intended the contract to be mutilated/severable inasmuch as no different values are specified in the subject contract towards goods value separately and the val .....

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ere was no transfer of right to use goods because the control of the cabs remained with the owner. [19] Both sides have made reference to a number of decisions of the Gauhati High Court. In Dipak Nath Vrs. Oil and Natural Gas Corporation Ltd. and Ors.: (2010) 2 GLR 496 the petitioner had entered into a contract with the ONGC for hire of trucks, trailers, tankers and cranes to the ONGC. The question was whether by means of such contract there was transfer of a right to use goods. After referring .....

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. Agarwala Vrs. Oil & Natural Gas Corporation Ltd. and Others : (2010) 5 GLR 38 took a different view. Here also the question was whether the contract for hiring of Hydraulic Cranes by the petitioner to the ONGC amounted to transfer of the right to use goods. After referring to various judgments including those referred to herein above the learned Single Judge made reference to the various portions of the contract and then went on to hold as follows: "28. Axiomatically, therefore, the t .....

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the same in exigible to tax thereunder. To reiterate, the learned counsel for the Revenue in course of the arguments on a dialectical scrutiny of the clauses of the contract agreements has admitted the same to constitute indivisible contracts.****" However, dealing with the Dipak Nath's case the learned Single Judge held that the facts of that case were different and distinguished the said judgment. [21] A Division Bench of the Agartala Bench of the Gauhati High Court dealt with a simi .....

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, a hire-purchase' contract and a catering contract' to bring them within the fiction of a deemed sale'. Of these three, the first and third, namely, works contract' and catering contract' involve a kind of service' and sale' at the same time. Apart from these two cases, covered by sub-clauses (b) and (f) of clause (29A) of article 366, where splitting of the service and supply has been constitutionally permitted, there is no other service, which has been permitted to .....

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nd services, it is not permissible for State Legislature to tax composite contracts comprising of both, sales' and services'. Not only the contracts cannot be artificially split up so as to enable the sale element to be taxed, the State cannot treat the contract as only a contract of sale of goods and tax thereby the whole value of the transaction as a sale of goods. Thus, a composite contract of sale of goods and service, i.e., consisting of both transfer of right to use and of renderin .....

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y tax only if the sale portion of the contract can be ascertained with exactitude. [22] In HLS Asia Ltd. Vrs. State of Tripura and Ors; (2013) 1 GLR 107 another Division Bench of the Agartala Bench of the Gauhati High Court of which one of us (S.C. Das, J) is the author was dealing with a matter relating to well logging perforating and other wire line services and it was held that the petitioner was a service provider and could not be compelled to be registered as a dealer under the TVAT Act. [2 .....

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Oil Field Instrumentation (India) Ltd. Vrs. The State of Tripura and others) and other connected matters decided on 10th September, 2014 after discussing the entire law on the subject held that no person can be directed to pay both sales tax and service tax on the same transaction. It was also held that if there are both elements of service and transfer of right to use goods are present in a contract and the contract is not divisible then if service tax has been paid to the Central Government, .....

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tract is easily divisible. [26] As far as the facts of this case are concerned Jubilant Oil and Gas Private Limited had entered into a joint venture with Gas Authority of India Limited and by the contract in question the petitioner was to carry out seismic surveys to assist the respondent No.4 and GAIL in carrying out the gas exploration. From the terms of the contract dated 28th April, 2010, we find that there was no transfer of any property. In fact none of the machinery of the petitioner was .....

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of energy reflected back to the surface is a measure of rock properties above and below the interface and the time taken is a measure of depth of the interface." Learned counsel for the respondents-State has failed to point out any stipulation in the contract which would indicate that there is any transfer of right to use property. It is also obvious that this was not a works contract because no work was to be done except carrying out a survey. A "Works Contract" has been defined .....

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d by internal combustion engine or by any other mechanical means, (c) any aircraft, (d) any component or accessory or part of any of the items mentioned in paragraph (a) to (c) above, (iv) the altering, ornamenting, finishing, improving or otherwise processing or adopting of any goods." [27] The present contract does not fall within the ambit of a works contract. It however, appears that on 02.02.2010 on behalf of the petitioner a letter was addressed to the Superintendent of taxes where th .....

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it may be mentioned that on 29th September, 2010 the company had sent a communication to the Superintendent of Taxes, Charge-VIII, Agartala, relevant portion of which reads as follows: "***** Herewith, we are requesting you to provide the details of Works Contract Tax for the Geophysical Survey and advise whether Geophysical Survey is coming under the Works Contract Tax or not? ****" Therefore, right from the very beginning the petitioner had asked the Superintendent of Taxes to clari .....

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(W). Sub: Amendment of Registration Certificate. Ref.: Your letter dated 17.01.2011. Sir, With reference to your letter on the subject noted above, I am to inform you that it appears from the agreement between Jubilant Oil & Gas Private ltd. and Asian Oilfield Services Ltd. made on 28.04.2010 that your firm is engaged in drilling Service Work which falls under Works Contract and attract @ 4% tax under section 4(3) of the TVAT Act, 04 read with sub-Rules-7 of the TVAT Rules, 2005. It also app .....

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k but was only engaged for carrying out seismic survey work. The said work does not fall within the ambit of Section 4(3) of the TVAT Act. The Seismic survey is carried out to investigate the Earth's subterranean structure. There was no transfer of the right to use goods. The equipment of the petitioner contractor remained the equipment and material owned and provided by the contractor. The equipment remained in the control of the petitioner. The petitioner remained in exclusive possession a .....

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ecessary for the Contractor to perform the Work, and including the completion of system installation and calibration, instrument tests and deployment of all Contractor's Equipment. The time of completion of mobilization shall be subject to the agreement in writing by company Representative(s). …..1.1.22 "Services" shall mean the Work and the services to be provided by the Contractor as provided for hereunder. ****** ****** ******* 4.1 Contractor's Equipment : The Contrac .....

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vices in accordance with the provisions of the Contract. If the Company is of the opinion that the Contractor is operating with a deficiency in the number or quality of the Contractor's personnel or that part thereof, the Company in consultation with Contractor, may require the Contractor to provide additional personnel or remove and replace personnel to provide numbers and quality of Contractor's personnel as Company sees fit and Contractor shall comply and bear the cost thereof. 4.2.2 .....

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the work. The Company shall be entitled at all times to inspect and take copies from all or any such documents. ***** ****** **** **** 4.2.5 The Contractor shall make own arrangements for the engagement of personnel, local or otherwise, and, save in so far as the Contract otherwise provides, for their payment and transport, housing, maintenance and board and lodging. The Contractor shall be as responsible for any Services performed by any agency personnel and by any other person provided by the .....

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prior to the employee being engaged in the Services. To the extent that such visas or permits are required to be issued by any Government authority, the Company shall, at the Company's sole discretion, endeavour to assist the Contractor to obtain such visas and permits. The costs of obtaining such visas or permits shall be borne by the Contractor. ******* ******** ******* 5.1 Company Equipment and Company Services: At its option, the Company shall provide at the Company's sole cost cert .....

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insurance for the equipment, upon the Completion Date or upon termination of the Contract or as directed hereunder, if earlier. 5.2 Obligation of the Company: Contractor shall be responsible for all formalities related to importation of equipment, consumables etc. under the Contract till the delivery at site. For all import of consumables, which are directly purchased by Jubilant, Consignee name shall be Jubilant. For all other materials, Equipments, Contractor shall be the consignee. All Essen .....

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