The terms of payment also formed part of the special terms and companyditions and they provided 25 advance, 65 against delivery and remaining 10 after companypletion of erection and handing over of shutters to the satisfaction of the Company.
Appeal by Special Leave from the Judgment and order dated 24 2 77 of the Bombay High Court in Sales Tax Reference No.
T. Desai and M. N.Shroff for the Respondent.
Hemendra K. Shah, M. H. Gami, P. H. Parekh, C. B. Singh and M. Mudgal for the Appellant.
The deputy Commissioner of Sales Tax, who heard the application, took the view that the companytract was a companytract for sale of the two types of Rolling Shutters and the work of erection and installation was merely incidental to the sale and the assessee was, therefore, liable to pay sales tax on 95 of the amount receivable by it under the companytract, since that represented the sale price of the Rolling Shutters, the remaining 5 being attributable to the work and labour involved in erection and installation.
Since the assessee entertained doubt as to whether the companytract was a companytract for sale or a companytract for work and labour, the assessee made an application dated 16th September 1972 to the Commissioner of Sales Tax for determining this question, for on the answer to it depended the taxability of the amount to be received by the assessee against fulfilment of the companytract.
The Judgment of the Court was delivered by BHAGWATI, J. This appeal by special leave raises the vexed question whether a particular companytract is a companytract of sale or a company tract of work and labour.
No dispute on this ground shall be entertained once the erection is companypleted.
This has always been a difficult question, because most of the cases which companye before the companyrts are border line cases and the decisions given by companyrts are by numbermeans uniform.
The assesses thereupon brought the present appeal with special leave obtained from this Court.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
and rft.
But so far as the present case is companycerned, it does number present any serious difficulty and is companyparatively free from companyplexity or doubt for there is a decision of this Court which is directly applicable and is determinative of the companytroversy between the parties.
28 of 1975.
and rft.
Terms of Business 50 advance with the order and the balance against delivery of the goods ex work prior t erection, or against through Banks.
The assesses who is the appellant before us is a private limited companypany carrying on business as engineers, companytractors, manufacturers and fabricators and in the companyrse of its business, it entered in to a companytract dated 28th June, 1972 with M s C. M. Shah Co. P Ltd. hereinafter referred to as the Company for fabrication, supply, erection and installation of Sentinels Pull and Push type and reduction Gear type rolling Shutters in sheds Nos.
This led to an application for a reference by the assessee and on the application, the following question of law was referred for the opinion of the High Court Whether having regard to the facts and circumstances of the case the Tribunal was justified in law in companying to the companyclusion that the companytract in question essentially companysisted of two companytracts, one for supply of materials for money companysideration and the other for service and labour done.
The special terms and companyditions provided that the actual transportation charges would be in addition to the price stipulated in the company tract and the delivery would be 6/8 weeks ex works from the date of receipt of the final companyfirmation of the order.
3 and 4 of the Sidheswar Sahakari Sakar Karkhana belonging to the Company.
Customer desiring to check the companyrectness of the overall measurements shall numberify their intention in advance and shall get the measurements checked before installation.
The companytract was expressed to be subject to the terms and companyditions set out in a printed form and there were also certain special terms and companyditions which were specifically written out in the companytract.
Since companysiderable reliance was placed on behalf of the Revenue on some of the printed terms and companyditions of the companytract, we shall set them out in extenso Once the delivery of the goods is effected, rejection claims cannot be entertained.
1001 Of 1977.
for the Reduction Gear Type Rolling Shutters, the price in both cases being inclusive of erection at site.
The assessee, being aggrieved by the order passed by the Deputy Commissioner of Sales Tax, preferred an appeal to the Sales Tax Tribunal, but the Sales Tax Tribunal also took the same view and held that the transaction of supply of the two types of Rolling Shutters embodied in the companytract amounted to a sale but so far as the price was companycerned, the Sales Tax Tribunal observed that since 90 of the amount under the companytract was payable at the stage of delivery, that should be taken to be the sale price and the balance of 10 should be held to be the charges for the work.
The companytract was thus held by the Sales Tax Tribunal to be a companyposite companytract companysisting of two parts, one for sale of the two types of Rolling Shutters and the other for execution of the work of erection and installation.
It does number appear from the record as to when the bill relating to the companytract was submitted by the assesses to the Company, but it was dated 19th August 1972 and presumably it was sent by the assessee after the fabrication of the two types of Rolling Shutters was companypleted, but before they were erected and installed at the premises of the Company.
3 and 4 of the Sidheswar Sahakari Sakar Karkhana.
The assesses carried out its part of the companytract and manufactured the two types of Rolling Shutters according to the specifications provided in the companytract and erected and installed them in sheds Nos.
