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        <h1>Court Sets Aside Orders Due to Lack of Evidence on Excavator Use; Case Remitted for New Review and Evidence Submission.</h1> <h3>Alpha Clays Versus State of Kerala</h3> Alpha Clays Versus State of Kerala - [2004] 135 STC 107 (Ker) Issues Involved:1. Whether the hire-charges received by the assessee for the excavator used for excavating clay mine are liable to be assessed u/s 5(1)(iii) of the Kerala General Sales Tax Act, 1963.2. Whether there was a transfer of the right to use the excavator in favor of M/s. Sulekha Clay Mines.Summary:Issue 1: Liability to be Assessed u/s 5(1)(iii) of the ActThe primary question was whether the hire-charges received by the assessee for the excavator used for excavating clay mine are liable to be assessed u/s 5(1)(iii) of the Kerala General Sales Tax Act, 1963. The assessee contended that there was no transfer of the right to use the excavator to M/s. Sulekha Clay Mines, and thus, the charges should not be included in the turnover for tax purposes. The assessing authority, however, included these charges, stating that the customer incurred expenses for the use of the excavator, indicating possession was delivered to M/s. Sulekha Clay Mines. This was confirmed by the first appellate authority and the Tribunal.Issue 2: Transfer of Right to Use the ExcavatorThe assessee argued that effective control of the excavator remained with them, and the customer only reimbursed a portion of the expenses. The Government Pleader countered that the customer met the expenses for operating and maintaining the excavator, suggesting a transfer of the right to use the excavator. The court noted that u/s 5(1)(iii) of the Act, there must be a parting with possession of the goods for the limited period of its use by the lessee. The court referred to several precedents, including the Supreme Court's decisions in 20th Century Finance Corpn. Ltd. v. State of Maharashtra and State of Andhra Pradesh v. Rashtriya Ispat Nigam Ltd., which clarified that effective control must be transferred to the lessee for the provisions to apply.Conclusion:The court found that the assessing authority and appellate authorities had not adequately established that there was a transfer of the right to use the excavator. The only material evidence was the accounts showing a portion of the expenses was due from M/s. Sulekha Clay Mines. The court concluded that this was insufficient to prove a transfer of possession and control. The orders of the authorities were set aside, and the matter was remitted to the assessing authority for fresh consideration in light of the principles laid down by the court and the Supreme Court. The assessee was allowed to present further evidence to support their claim.The tax revision cases were disposed of accordingly, and the orders on C.M.P. Nos. 4714, 4717, and 4719 of 2001 were dismissed.

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