Judgment :- ABDUL HADI, J. In all these four tax (revision) cases, the common question of law for decision by this Court is, whether on the facts and circumstances of the case, the Tribunal was justified in holding that the re-rubberising transactions of the assessee-petitioner were "sales" liable for levy of tax, and not works contract, entitled to exemption from the levy of sales tax. 2. T.C. (R) No. 967 of 1988 is with reference to the disputed turnover of Rs. 10, 38, 537 under the Tamil Nadu General Sales Tax Act, 1959, for the assessment year 1980-81. T.C. (R) No. 968 of 1988 is with reference to the disputed turnover of Rs. 5, 73, 969 under the Central Sales Tax Act, 1956, for the same assessment year 1980-81. T.C. (R) No. 969 of 1988 is with reference to the disputed turnover of Rs. 11, 38, 979.22 under the Tamil Nadu General Sales Tax Act, for the assessment year 1981-82. T.C. (R) No. 970 of 1988 is with reference to the disputed turnover of Rs. 4, 80, 042.74 under the Central Sales Tax Act for the same assessment year 1981-82. [All the four proceedings relate to a period prior to the Constitution (Forty-sixty Amendment) Act, 1982]. On the abovesaid question, all the authorities below, viz., the assessing officer, the appellate authority and the Tribunal have concurrently held that they were "sales" chargeable to tax under the above referred to respective enactments. 3. Recently in State of Tamil Nadu v. Aparajitha Rubbers (P.) Ltd. [Reported in 1991 (82) STC 74 supra] (Tax Case Nos. 950 to 952 of 1987) (hereinafter referred to as "Aparajitha's case") by judgment dated August 8, 1990, we have held that the transactions of rubber lining done by the assessee therein on the customers' industrial equipments were not "sales", but only works contract, not eligible to sales tax. There, as in the present case, the Revenue relied on the decision of this Court reported as State of Tamil Nadu v. Dunlop India Limited 1981 (48) STC 521 for contending that the abovesaid transactions of rubber lining amounted only to sales and not works contracts. There, as in the present case, the Revenue relied on the decision of this Court reported as State of Tamil Nadu v. Dunlop India Limited 1981 (48) STC 521 for contending that the abovesaid transactions of rubber lining amounted only to sales and not works contracts. But, we, after considering several other decisions, distinguished the facts in the above referred to 1981 (48) STC 521 (State of Tamil Nadu v. Dunlop India Limited), from the facts which were before us in the said case and held that the case before us was one of works contract only and not "sales". There, we also pointed out how the above referred to 1981 (48) STC 521 (State of Tamil Nadu v. Dunlop India Limited) turned very much on its own facts, which were not present in the abovesaid Aparajitha's case 1991 (82) STC 74 (Mad.) 4. Mr. A. Devanathan, learned counsel for the assessee in the present case, urges that the facts in the present cases also are quite similar to that of the above referred to Aparajitha's case 1991 (82) STC 74 (Mad.) and that the ratio laid down therein in our above referred to earlier judgment would squarely apply to the present cases also. So, it is only to be seen whether the facts in our earlier judgment and the present cases are similar and whether the above referred to 1981 (48) STC 521 (State of Tamil Nadu v. Dunlop India Limited) is not applicable in the present cases also. 5. In our above referred to earlier judgment, the disputed facts were as follows : The assessee undertook rubber lining on the customers' industrial equipments to protect them from corrosion. As soon as the enquiry is received from the customers, the assessee discusses with the customers regarding the type of corrosive substance which the equipment is going to be put use of and the type of rubber lining to be given is agreed. For each category of job, the rubber lining to be given is different. On receiving the equipments, the rubber lining is blended, compounded and prepared, only after the order is received. The raw rubber is suitably blended with rubber chemicals in the rolling mixing mill to prepare appropriate lining sheets. Simultaneously the customers' equipments' surface is treated first by sand blasting and then the surface is subjected to adhesive chemical coating. On receiving the equipments, the rubber lining is blended, compounded and prepared, only after the order is received. The raw rubber is suitably blended with rubber chemicals in the rolling mixing mill to prepare appropriate lining sheets. Simultaneously the customers' equipments' surface is treated first by sand blasting and then the surface is subjected to adhesive chemical coating. Then the rubber lining is manually affixed on the surface of the metal and pressed by small hand roller to have a bonding with the metal. It is a technical and skilled job. After rubber lining sheet is put on the equipment, it is thoroughly checked and tested with spark testing machine, etc. The rubber lining surface is hardened and bonded. Then the equipment is thoroughly checked and tested and then handed over to the customers.5-A. In the above case it was also shown that the contract between the parties was only for rubber lining and not for sale of any of the customers' goods as such. It was also further found that the parties did not contemplate and passing of property in the rubber lining. But the customers entrusted the work of rubber lining on their equipment for a particular user necessitated by the industry, in which the equipments are used and that the dominant object or the very essence of the contract was only an agreement to work for a stipulated consideration, and there was no sale of very rubber content of the lining to the customer. 6. Therefore, it was held that the transactions involved in the abovesaid Aparajitha's case 1991 (82) STC 74 (Mad.) were only works contracts and not sales. In the present cases, even at the very outset, when the assessee gave relies to the per-assessment notice, it gave out the nature of the transactions of re-rubberising activity, in the form of an affidavit, as follows : The abovesaid activity is highly technical and specialised in nature. The customers engaged in printing and tanning establishments make enquiries for re-rubberising of their worn-out rollers after giving the sizes of those rollers. Accordingly the assessee gives quotation specifying re-rubberising charges per roller. Then, on receipt of the rollers from the customers, re-rubberising is done. The customers engaged in printing and tanning establishments make enquiries for re-rubberising of their worn-out rollers after giving the sizes of those rollers. Accordingly the assessee gives quotation specifying re-rubberising charges per roller. Then, on receipt of the rollers from the customers, re-rubberising is done. The process consists of preparing the necessary rubber compounds, taking into account the conditions to which the re-rubberised rollers will be exposed and the conditions in which the worn-out rollers were received from the customers. The rollers are then checked for spindle dimensions. The old worn-out rubber is effected completely, so that the metallic spindles alone are left and then these spindles are cleaned thoroughly. Grooves are provided on the spindles to enable effective adhesion of the rubber surface to be imparted to the spindles. A bonding agent is coated on to the cleaned spindle. On the metallic spindles, the rubber compounds already prepared are applied manually, given a uniform rubber coated surface to the thickness required. The spindles thus prepared are wrapped with cloth. The roller wrapped with cloth is then fed into a steam-operated vulcaniser for curing. The curing time itself actually depends upon the nature of the rubber and thickness of the rubber coated. After such coating the rollers are given finishing touch by effecting grinding in lathes so as to bring them to the size and to the required outside diameter. The rollers are then checked for dimensions so as to conform to the requirements of the parties and are then foreword to them.The bill is raised on the customer (owner of the spindle) for re-rubberising charges. There is no levy or collection of tax by the assessee. 7. Along with the said affidavit, a typical letter of enquiry from the customer, a typical quotation given by the assessee to the customer specifying the re-rubberising charges per roller, a typical bill that is raised by the assessee on the customer for re-rubberising charges after completing the work and a typical forwarding note, were also annexed. What is stated in the abovesaid affidavit and what is contained in the said annexures, make it clear that there was no agreement between the assessee on the one hand and the respective customers on the other hand, to transfer property in the abovesaid goods, viz., rubber or anything connected with it, as such. So, one of the ingredients of sale is absent. 8. So, one of the ingredients of sale is absent. 8. In State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. 1958 AIR(SC) 560, 1958 (9) STC 353, 1958 SCJ 696, 1959 (1) SCR 379, 1955 (2) MLJ 65 which has been followed by many decisions, the Supreme Court has held as follows : ".......... in order to constitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, which of course presupposes capacity to contract, that it must be supported by money consideration, and that as a result of the transaction property must actually pass in the goods. Unless all these elements are present, there can be no sale ........... We are accordingly of opinion that on the true interpretation of the expression 'sale of goods' there must be an agreement between the parties for the sale of the very goods in which eventually property passes." * So, it is clear from the abovesaid observation, to constitute a sale, the above referred to three ingredients are necessarily required and even if any one of them is absent, the transaction cannot be a sale and it is also emphasised in the abovesaid observation that with reference to the first of the essential requirement, there must be an agreement to transfer property in goods as goods. While so, from the nature of the transaction in the present case, it cannot be said that there is agreement to sell the property in the abovesaid rubber materials, etc., as such. On the other hand, there was only an agreement to do the work of rubberisation by the assessee on the rollers or spindles given by the customer. Therefore, the first ingredient, as stated above, is not satisfied. 9. No doubt, in the abovesaid passage extracted from 1958 AIR(SC) 560, 1958 (9) STC 353, 1958 SCJ 696, 1959 (1) SCR 379, 1955 (2) MLJ 65 (SC) [State of Madras v. Gannon Durkerley & Co. Therefore, the first ingredient, as stated above, is not satisfied. 9. No doubt, in the abovesaid passage extracted from 1958 AIR(SC) 560, 1958 (9) STC 353, 1958 SCJ 696, 1959 (1) SCR 379, 1955 (2) MLJ 65 (SC) [State of Madras v. Gannon Durkerley & Co. (Madras) Ltd.], referred to above, it is also mentioned that in a works contract, the property in the materials used by the contractor in execution of his work on the immovable or movable property given by the customer, passes to the customer as and when the said materials are affixed to the immovable or movable property given by the customer to the contractor for doing the said work, on the principle of quicquid plantatur solo, solo credit, that is, what is affixed to the soil goes with the soil. But, in the present case, the abovesaid affidavit filed on behalf of the assessee does not disclose as to how and when actually the property in the rubber and other materials of the assessee passed on to the customers. The assessment order dated September 29, 1983, no doubt also finds as a fact that the property in the rubber passed on to their customers when the rubberised rollers were delivered to the customers. Even assuming that the property in the abovesaid rubber materials, etc., passed to the customer only on delivery of the roller after rubberisation, yet, in view of the absence of the abovesaid first ingredient for a "sale", the transactions in question in the present case will not amount to sales. In this context, the following observation of the Supreme Court in the abovesaid 1958 AIR(SC) 560, 1958 (9) STC 353, 1958 SCJ 696, 1959 (1) SCR 379, 1955 (2) MLJ 65 [State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.] is significant. "Accordingly, there can be no question of title to the materials passing as movables in favour of the other party to the contract. It may be, as was suggested by Mr. Sastri for the respondents, that when the thing to be produced under the contract is movable property, then any material incorporated into it might pass as a movable, and in such a case the conclusion that no taxable sale will result from the disintegration of the contract can be rested only on the ground that there was no agreement to sell the materials as such." * 10. It is further observed in Union of India v. Central India Machinery Manufacturing Co. Ltd. 1977 AIR(SC) 1537, 1977 (40) STC 246, 1977 (2) SCC 847 , 1977 (3) SCR 437 , 1977 SCC(Tax) 376 relied on by the learned counsel for the Revenue that the question whether a contract is one for sale of goods or for exciting words, is largely one of fact, depending upon the terms of the contract, including the nature of the obligations to be discharged thereunder and the surrounding circumstances. Further in Vanguard Rolling Shutters & Steel Works v. Commissioner of Sales Tax 1977 AIR(SC) 1505, 1977 (39) STC 372, 1977 (2) SCC 250 , 1977 (3) SCR 165 , 1977 UJ 271 , 1977 CTR(SC) 190 the transaction involved was, fabrication of rolling shutters and fixing them to the premises of the customers and it was held that the materials were not merely supplied to the owner so as to pass as chattel simpliciter, but are actually fixed to an immovable property and after the same are fixed and erected they become a permanent fixture so as to become an accretion to the immovable property. In that context, the Supreme Court also observed as follows : "One of the important test is to find out whether the contract is primarily a contract for supply of materials at a price agreed to between the parties for the materials so supplied and the work or service rendered is incident to the execution of the contract. If so, the contract is one for sale of materials and the sale proceeds would be eligible to sales tax. On the other hand, where the contract is primarily a contract for work and labour and materials are supplied in execution of such contract, there is no contract for sale of materials but it is a works contract." * 11. The order of the Appellate Assistant Commissioner no doubt also points out that the assessee itself is not sure about the transaction as to whether it relates to works contract, since in the bills raised by the assessee, it has stated that if any sales tax is found leviable on a later date, the same will be on the customer's account. This, by itself, will not decide the question. By way of abundant caution, the assays would have stated so. This, by itself, will not decide the question. By way of abundant caution, the assays would have stated so. The other features found in the bills and the other above referred to annexures to the above referred to affidavit on behalf of the assessee clearly indicate that there was no agreement to transfer property in goods, as goods, as stated above. Thus, to this extent at least we find that the facts in Aparajitha's case 1991 (82) STC 74 are similar to the present facts, and so long as there was no agreement to transfer property in goods, as goods, the decision in State of Tamil Nadu v. Dunlop India Ltd. 1981 (48) STC 521 cannot be applied to these cases also.11-A. We may also point out that the following reasoning of the Tribunal, for holding that the transactions were sales, is not sound. It says as follows : "The customers' worn-out rubber rollers received from them are totally scrapped and what remains is only the core spindle or rod. Unlike the equipments of greater value, bulk and importance which were rubber lined to prevent corrosion in the case involved in T.C. Nos. 1208 to 1213/79, these spindles are of insignificant value and worth as compared to the rubber rollers manufactured and supplied by the appellants." * In the above referred to 1977 AIR(SC) 1537, 1977 (40) STC 246, 1977 (2) SCC 847 , 1977 (3) SCR 437 , 1977 SCC(Tax) 376 (Union of India v. Central India Machinery Manufacturing Co. Ltd.) the Supreme Court, after pointing out that neither the ownership of the materials nor the value of the skill and labour as compared with the value of the materials is conclusive in deciding the question whether a contract is in substance one for work and labour or one for the sale of a chattel, it no doubt observed that if the bulk of the material used in the construction belonged to the manufacturer, who sold the end-product for a price that would be a strong pointer to the conclusion that the contract is in substance one for sale of goods and not one for work and labour. Thus, even according to the said decision, the abovesaid test is also not conclusive. That apart, when it is found that there was no agreement to sell goods as goods, as stated above, there cannot be a sale. Thus, even according to the said decision, the abovesaid test is also not conclusive. That apart, when it is found that there was no agreement to sell goods as goods, as stated above, there cannot be a sale. Further, as already stated, in the above referred to 1977 AIR(SC) 1537, 1977 (40) STC 246, 1977 (2) SCC 847 , 1977 (3) SCR 437 , 1977 SCC(Tax) 376 (Union of India v. Central India Machinery Manufacturing Co. Ltd.) itself it was observed that the question whether a transaction is sale or works contract is largely one of fact, depending upon the terms of the contract. 12. It may also be pointed out that the Commissioner of Commercial Taxes himself, in his clarification dated August 22, 1980, has held that such rubberisation would only be a transaction of works contract. 13. Taking into account all the abovesaid features and the decisions, we have necessarily to come to the conclusion that the transactions involved in the present cases are not sales exigible to tax and, therefore, we allow all these revision cases and set aside the orders of the authorities below, in so far as they relate to the above referred to turnovers. However, in the circumstances, no costs.