TMI Blog2005 (9) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... e expression tax on the sale or purchase of goods introduced in clause 29A of Article 366 was to enlarge the scope of the expression so that it may include within its scope the transfer, delivery or supply of goods that may take place under any of the transactions referred to in sub-clauses (a) to (f) of clause 29A wherever such transfer, delivery or supply becomes subject to levy of sales tax. The Court held the expression includes a tax on the transfer of property in goods in the execution of a works contract also. In the light of this decision and having regard to the fact that period in dispute in the present case is subsequent to the 46th Amendment to the constitution, we apply the ratio of the above said decision to hold that, even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not cover bridges in its ambit. Buildings and bridges are different from each other. Hence the benefit of Notification No. 59/90 cannot be extended to PSC girders, as they are goods, which are not manufactured at site for construction of buildings. We, therefore, answer the second issue referred to us in the negative. Both sides confirmed that no other issues remain for decision. Therefore, we uphold the impugned orders confirming demands, imposing penalties and confiscating the goods, and reject the appeals. - Ms. Jyoti Balasundaram, Vice-President, Smt. Archana Wadhwa, Member (J) and Shri Moheb Ali M., Member (T) [Order per : Jyoti Balasundaram, Vice-President].- The issues referred to the Larger Bench for the decision are whether PSC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, which is firmly embedded in earth, the girders do not have an independent identity for the purpose of trade and could not be treated as marketable goods. However, in the light of the Case Laws cited supra and in the light of the admitted position that the girders are not manufactured at site, but in the casting yard and then removed from there for being launched on the piers, we hold that the Department has discharged the burden of proving PSC girders are marketable. The decision of the Tribunal in the case of M/s. B.E. Billimoria Company Private Limited (Order No. C-II/890-891/WZB/2003, dated 25th April, 2003 holding that PSC girders are not marketable is based upon the finding that the contract between the appellants and M/s. Konkan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act referred to in sub-clause (b) of clause (29A) of Article 366 of the Constitution was considered by the Apex Court in the case of Builders Association of India and Ors v. Union of India and Ors - AIR 1989 SC 1371 wherein the Court held that, having regard to the passing of the property in goods, which are involved in works contract and legal fiction created by Clause 29A of Article 366, it is difficult to agree with the contention of the States that the properties that are transferred to the owner in the execution of a works contract are not the goods involved in the execution of the works contract, but a conglomerate i.e. the entire building that is actually constructed. The Apex Court held that the object of the new definition of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court's dismissal of appeal filed by the State of Madras against the Madras High Court's decision was prior to the 46th Amendment to the Constitution in 1982. We, therefore, answer the first issue referred to us in the affirmative. 3. We now take up the second issue. The benefit of Notification No. 59/90 is inter alia available to "goods manufactured at the site of construction of buildings for use in such sites". It is not the case of the appellants that bridges are buildings. The word "building" has been defined in Concise Oxford Dictionary (1990 edition) as a permanent fixed structure forming an enclosure and providing protection from the elements etc. (e.g. the house, school, factory, stable). This does not cover bridges in its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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