TaxTMI 
TaxTMI 
2007 (12) TMI 405
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....er-company dispatched the goods vide-challan-cum-invoice No. 185, dated 6.11.2007 and challan CED/GEB No. 112, dated 6.11.2007 to respondent No. 4 (P-2 and P-2A). It is claimed that the bills contained all the particulars of the goods viz, quantity, quality, price, tax charged etc. The goods entered Punjab through I.C.C. Import, Shambu Barrier, District Patiala, in vehicle No. HR-39A-9841 belonging to Union Roadways Corporation. On 7.11.2007, the goods were detained by respondent No. 2 vide notice/detention order No. 94, dated 7.11.2007 (P-3) and the following objection was raised: TIN No. of Pb. & G.R. consignee not mentioned. As per G.R. goods are to be unloaded at Party godown's of the consignor. Seems to be a works contractor. Needs verification. 3. The petitioner was required to attend the office of respondent No. 2 on 10.11.2007 at 10.00 a.m. to explain the correctness of the documents which were taken into possession by respondent No. 2. Accordingly, the representative of the petitioner approached respondent No. 2 and gave explanation in writing mentioning that VAT No. was not required by the petitioner because it is not doing any business which may amount to sale in t....
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....with the provisions of Section 51(6)(a) of the Act, which require furnishing of adequate security equivalent to the amount of penalty and tax involved, despite the fact that notice under Section 51(7)(b) of the Act was issued. It is repeatedly claimed that the petitioner is conducting its business in the Sate of Punjab on regular basis and is, thus, required to get itself registered and file regular returns. 6. The petitioner has filed replication by controverting the stand taken by respondent Nos. 2 and 3 and reiterating its stand taken in the petition. It has been denied once again that it was a 'works contract', asserting that it is merely a contract for supply of goods. The petitioner has insisted that no sale of goods has taken place in the State of Punjab and, therefore, there is no attempt to evade the value added tax and that the installation of the lift is only incidental to the supply of goods. The petitioner has also claimed that it is not required to be registered under the Act nor liable to pay any tax by stating that in similar circumstances in the year 2006, the stand of the petitioner was accepted. It filed C.W.P. No. 19392 of 2006, which was rendered infru....
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.... the Act, requiring registration by any person, would not apply to the petitioner as the expression 'person' in Section 2(t) and (i) of the Act does not cover a person like the petitioner, who is not engaged in the business of transfer of goods for cash or default payment or for other valuable consideration. He has maintained that he is covered by a written contract. According to learned Counsel, the petitioner has been paying Central Sales Tax @ 12.5% under the C.S.T. Act and is not liable to pay any tax on inter-state sale. He has then submitted that the provisions of Section 51 of the Act would also not apply to the case of the petitioner as the petitioner is not assessable to tax under the Act. In support of his submission, learned Counsel has placed reliance on a judgment of Hon'ble the Supreme Court in the case of State of Andhra Pradesh v. Kone Elevators (India) Ltd. (2005)140 S.T.C. 22. 8. According to learned Counsel, the aforementioned judgment squarely cover the case of the petitioner and the contract entered into by the petitioner on 31.7.2007 (P-1) cannot be regarded as a 'works contract'. He has maintained that 'installation' of lifts is o....
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....State movement of goods; (ii) the goods must actually move from one State to another, pursuant to such contract of sale, the sale being the proximate cause of movement; and (iii) such movement of goods must be from one State to another State where the sale concludes. It follows as a necessary corollary of these principles that a movement of goods which takes place independently of a contract of sale would not fall within the meaning of inter-State sale. In other words, if there is no contract of sale preceding the movement of goods, obviously the movement cannot be attributed to the contract of sale. Similarly, if the transaction of sale stands completed within the State and the movement of goods takes place thereafter, it would obviously be independently of the contract of the contract of sale and necessarily by or on behalf of the purchaser alone and, therefore, the transaction would not be having an inter State element.... 11. In the National Thermal Power Corporation's case (supra) the question for determination was whether the sale of electricity by the National Thermal Power Corporation Limited, (NTPCL) to the Electricity Boards situated outside the State of Andhra Prade....
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....o involved, which is incidental. The third condition that such movement of goods must be from one State to another State where the sale has been concluded is also obviously stands satisfied because the goods have moved from New Delhi to the State of Punjab. Therefore, the tests laid down by the Constitution Bench are satisfied in the present case. 14. It is further pertinent to mention that the distinction between the 'contract for sale' and 'works contract' was highlighted by Hon'ble the Supreme Court in the case of Kone Elevators (India) Ltd. (supra). Dealing with the case of installation of lifts, their Lordships' have observed in para 5 of the judgment the basic attributes demarcating both 'contract for sale' and 'works contract' and emphasised that largely it is a question of fact depending on the terms of the contract. The observations in para 5 of the judgment reads as under: 5. It can be treated as well-settled that there is no standard formula by which one can distinguish a 'contract for sale' from a "works contract". The question is largely one of fact depending upon the terms of the contract including the nature of the ob....
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....he lifts have been transported and supplied to respondent No. 4 under the agreement in a semi-knocked down condition, which were to be installed at the Zonal Office Building for the Punjab National Bank. The installation part is only an incidental whereas the subject matter in pith and substance is sale of lifts, as has been observed by Hon'ble the Supreme Court in para 12 of the judgment in Kone Elevators (India) Ltd. (supra) itself. It has been observed that the supply part included installation of lift and the contractual obligation of the petitioner was only to supply and install the lifts while the obligation of respondent No. 4 was to keep the site ready for installation as per the drawings and designs. Therefore, examined from any angle, the contract between the parties is one of 'contract for sale' and not a 'works contract'. 16. We are further of the view that respondent Nos. 1 to 3 cannot keep on shifting their sand because when the petitioner faced similar difficulty in 2006 and the lifts in knocked down condition were detained, it has filed C.W.P. No. 19392 of 2006. The writ petition was dismissed as withdrawn having been rendered infructuous becaus....