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TMI Blog2023 (3) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... f questions 'b, d and e' which read as under: "(b) Whether the learned Tribunal is justified in not deleting the Tax free and First Point Tax Paid goods turnover from the taxable turnover and as such the order is illegal and arbitrary? (d) Whether the learned Tribunal is justified in holding that the receipts of hire charges recovered from contractors by appellant falls within ambit of deemed sales as contemplated u/s 2(g)(iv) of the Orissa Sales Tax Act? (e) Whether the receipt of hire charges of machineries from inter-department of the assessee for account purpose is sale to self as contemplated u/s 2(g) (iv) of the Orissa Sales Tax Act? 3. This Court has heard the submissions of Mr. Chandra Madhab Singh, learned counsel appearing for SAIL and Mr. Sunil Mishra, learned Additional Standing Counsel for the Opposite Parties- Department. 4. SAIL is a public sector Government of India undertaking having one of its steel and fertilizer plants located at Rourkela in the State of Odisha. It is a registered dealer both under the Orissa Sales Tax Act, 1947 (OST Act) and the Central Sales Tax Act, 1956 (CST Act). 5. As regards question 'b', the relevant facts are that the sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to record evidencing that the canteen run by the appellant-company has supplied any meals or food articles, beverages etc. outside the canteen by way of parcel sale. In that view of the matter, we hold that the entire turnover of canteen sales should be subjected to tax @ 4% only. We are, however, not inclined to accept the contention of the learned Advocate for the appellant that the forums below have gone arbitrary in not allowing any deduction towards sale of tax free or other exempted goods in as much as, we find, the appellant has failed to produce detailed accounts in respect of its canteen sales except a statement showing total purchase and sales at this forum". 9. Mr. Chandra Madhab Singh, learned counsel for SAIL, contended that canteen sales also comprised sale of tax-free goods like bread, cigarette etc. as well as first point tax paid goods like soft drinks, biscuits, matches etc. He contended that since in any event, in respect of certain other questions, the assessment for all the five years have been set aside for a fresh consideration by the AO, this issue also could be sent back to the AO for a fresh decision. On the other hand, it was contended by Mr. Sunil M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o resist the Department's case that hire charges collected from other departments for use of machinery by them should also be included in the gross taxable turnover. 13. The STO has relied on the decision of this Court in Krishna Chandra Behera v. State of Odisha (1991) 83 STC 325 and held that it was a case of transfer of ownership of machinery for an agreed period to the contractors for recovery of hire charges. When the matter travelled to the ACCT, reliance was placed on the decision of the Bombay High Court in 20th Century Finance Corporation v. State of Maharashtra [1989] 75 STC 217 apart from the decision of this Court in Krishna Chandra Behera (supra) to uphold the view of the STO. 14. Before the Tribunal, it was sought to be explained by SAIL that no transfer of right to use took place when the contractors or other departments were permitted to use the machinery belonging to it. The precise transaction was explained as under: "Machineries are to be indented through a certificate of requirement from the concerned Engineer and on such certificate the concerned Department engaged its own operator to run the machine. Cost of operation for each machine is fixed earlier on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. We therefore do not see any cogent reason to interfere with the findings of the lower forum." 18. Before this Court it was contended by Mr. Chandra Madhab Singh, learned counsel for SAIL, that the effective control of machinery remained with SAIL and that the contractors were permitted to use the machinery inside SAIL's plant and for only SAIL's work. Therefore, it cannot be said that the hire charges received amounted to sales. It was not the price for transfer of the right to use the machinery. 19. On the other hand, Mr. Mishra, learned Additional Standing Counsel for the Department, submitted that the complete contract was never furnished before the statutory authorities even though it was in possession of SAIL and, therefore, the conclusion reached by the STO, the ACCT and the Tribunal ought not to be interfered with by this Court. 20. The Court finds that in the memorandum of the present revision petition it has been pleaded by SAIL as under: "That the petitioner did produce the full contract though it filed the relevant extract only and the petitioner is ready and willing to produce the original contract at the time of hearing and as such the order is vitiated by imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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