ORDER Raju, J. - The above revisions have been filed by the State challenging the order of the Tamil Nadu Sales Tax Appellate Tribunal (Main Bench) at Madras, setting aside the levy of tax on a total and taxable turnover of Rs. 1,94,551 of the respondent - assessee for the assessment year 1974-75 on the ground that the turnover in question related to works contract and, therefore, was not exigible to tax. T.C. (R) No. 156 of 1983 has been filed against that portion of the order made in the main appeal. During the pendency of the appeal before the Tribunal, the Revenue filed an enhancement petition to restore the penalty levied by the assessing officer, which was deleted by the Appellate Assistant Commissioner. The said enhancement claimed in T.M.P. No. 168 of 1982 was also rejected by the very same order and challenging the said order T.C. (R) No. 157 of 1983 has been filed. Since the issues involved are common, and submissions have been made in common, they are dealt with together. The respondents - assessees were said to be ship repairers and engaged in doing repair works to ships at harbour and also supplying necessary materials in effecting such repairs. On March 18, 1980, the place of business of the assessees appears to have been inspected, as a result of which, action was taken to assess the respondents for the assessment year 1974-75. After giving due notice and opportunity, the assessing officer, by his order dated October 21, 1980, determined the total and taxable turnover of the respondents at Rs. 1,94,551 and levied a tax of Rs. 11,120. Penalty under section 12(3) to the tune of Rs. 16,680 was also levied at 1 1/2 times the tax due. Aggrieved, the respondents - assessees pursued the matter before the Appellate Assistant Commissioner. 1,94,551 and levied a tax of Rs. 11,120. Penalty under section 12(3) to the tune of Rs. 16,680 was also levied at 1 1/2 times the tax due. Aggrieved, the respondents - assessees pursued the matter before the Appellate Assistant Commissioner. The said appellate authority, while noticing the facts that the assessees are the ship repairers, that they have produced parts and accessories of the ships and used them while carrying out repairs and reconditioning them, that they have not maintained any agreements in writing with the parties to the transaction, that the only evidence available consisted of the account books of the assessees as well as the bills issued to the customers and that in the accounts, the assessees have made distinction between the case of sales as such and case of charges for labour and work and came to the ultimate conclusion that the transactions in question amounted to sales exigible to tax. The said appellate authority strongly relied upon the fact that the bills maintained showed that the appellants used to charge separately for each of the items of spare parts supplied and the charges for the labour. The appellate authority allowed the enhancement petition filed by the department, and refixed the taxable turnover at Rs. 3,39,298.60. At the same time, the first appellate authority thought it fit to delete the penalty under section 12(3) of the Act on the ground that the levy of penalty was not called for on the facts and circumstances of the case. The assessing officer, by a revised proceedings dated March 4, 1982, refixed the total and taxable turnover of the assessee for the year 1974-75 at Rs. 3,39,298.60 and levied a tax of Rs. 26,782.67 and surcharge of Rs. 1,339.13. Aggrieved, the assessees pursued the matter further before the Tribunal. The Tribunal, after analysing the nature of the transactions in the light of certain judicial pronouncements, came to the conclusion that the transactions in question are essentially a contract to do repair works in ships and the mention made separately as to the value of the materials was only to determine the reasonableness of the total work of the contract and being primarily a works contract, the supply of materials was only incidental and that, therefore, the turnover in question was not exigible to tax. So far as the levy of penalty is concerned, the Tribunal applied the ratio of the decision in State of Tamil Nadu v. Jakthi Veliyeetakam [1977] 40 STC 466 (Mad.) and came to the conclusion that there was no jurisdiction for the Tribunal to restore by enhancement the penalty when it was completely deleted by the first appellate authority and consequently rejected the petition for enhancement. Aggrieved, the Revenue has filed the above revision. Mrs. Chitra Venkataraman, learned Additional Government Pleader (Taxes) took us at length through the orders of the authorities below and contended that in the absence of any written agreement, governing the transactions in question and having regard to the details furnished or made available in the accounts maintained, the only conclusion possible was that the spare parts supplied constituted sale of goods inasmuch as the contract itself was a divisible one. It is the contention of the learned counsel that the predominant object was supply of materials and the assessees have effected supplies of materials, while executing the works, making out separately the charges for labour and consequently the Tribunal erred in holding that the assessees were mainly repairers and the amounts received were only for services rendered. Mr. Inbarajan, learned counsel appearing for the respondents - assessees adopted the reasoning of the Tribunal and supported the findings arrived at, referring to the consideration made by the Tribunal with reference to the nature of the transaction. It is also contended for the respondents that the Tribunal, as a final fact-finding authority, on appreciation of the nature of the transaction as disclosed from the materials made available, rendered a categorical finding that the transactions in question are pure works contract and the materials supplied in the course of execution of contract was merely incidental to the execution of the works contract and that the transaction should not be considered to be divisible one as contended for the Revenue. On the question of penalty under section 12(3) of the Act, both the learned counsel appearing on either side submitted that primarily the levy of penalty will depend upon our decision on the main issue about the taxability of the transaction itself and that if this Court sustains the order of the Tribunal there would be no scope for levy of penalty. It was also submitted that if we are inclined to agree with the Revenue on the main issue relating to the taxability of the transaction then having regard to the decisions of this Court in Deputy Commissioner of Commercial Taxes v. Panayappan Leather Industries [1981] 47 STC 88 and M. Chokkalingam v. State of Tamil Nadu [1994] 94 STC 127 [App.]; (1992) 1 MTCR 217 there is every justification for restoring the penalty and the view taken to the contra, by the Tribunal cannot be sustained. We have considered the submissions of the learned counsel on either side in the light of some of the decisions referred to by the learned counsel appearing on both the sides. The factual position as disclosed, in our view, does not pose any real problem. Even the assessing officer as well as the first appellate authority proceeded on the basis that the assessees were mainly contractors engaged in doing repair works to ships at the harbour and that the spare parts and accessories have been used by them while reconditioning or repairing the ships and in executing the works of repair entrusted to them. The fact that there was no written contract between the assessee and the customers concerned, does not, in our view, alter the position regarding the real nature of the transactions, which could always be ascertained and considered in the light of the factual details available before the authorities and noticed by them in the respective orders passed by them. The assessing officer as well as the first appellate authority have chosen to characterise the transactions in question as sales merely on the basis that the assessees in their bills used to charge separately for each of the items of spare parts supplied and for the labour and this made the position clear that the transactions amounted to sale. On the other hand, the Tribunal after noticing the judgment of the apex Court, as well as that of the Andhra Pradesh High Court, came to the conclusion that the transactions in question are essentially contracts to do repair works in ships and that the separate value for materials shown in the bills is only to determine the reasonableness of the total work of the contract and that the supply of material was incidental to the contract which according to the Tribunal was primarily a works contract. Further from the order of the Tribunal we find that it adverted to some of the bills and their contents and relied upon them to come to the conclusion that the transactions in question were primarily works contracts. The materials noticed in paragraph 6 of the Tribunal, in our view, would squarely justify the factual findings rendered by the Tribunal that the primary nature of the contract is that of works contract and not a contract for supply of material. In Vanguard Rolling Shutters & Steel Works v. Commissioner of Sales Tax [1977] 39 STC 372, the apex Court had an occasion to consider the principles relating to a works contract in the context of an agreement for supply and fixing of iron shutters at the customer's premises for lump sum payment. The court pointed out that the question as to under what circumstances, a contract can be said to be a works contract is not free from difficulty and has to depend on the facts of each case and it is difficult to lay down any rule of universal application. While elaborating the guiding principles, it has been held as hereunder : "One of the important tests 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 incidental to the execution of the contract. If so, the contract is one for sale of materials and the sale proceeds would be exigible 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. The circumstance that the materials have no separate identity as a commercial article and it is only by bestowing work and labour upon them, as for example, by affixing them to the building in case of window-leaves or wooden doors and windows that they acquire commercial identity, would be prima facie indicative of a works contract. So also where certain materials are not merely supplied but fixed to an immovable property so as to become a permanent fixture and an accretion to the said property, the contract prima facie would be a works contract. So also where certain materials are not merely supplied but fixed to an immovable property so as to become a permanent fixture and an accretion to the said property, the contract prima facie would be a works contract. This is exactly what has happened in the present case." In Hindustan Aeronautics Ltd. v. State of Karnataka [1984] 55 STC 314, the apex Court was once again concerned with the consideration of a contract for servicing, repairing and overhauling air force planes. While pointing out certain differences between a contract of sale and a contract of works, the apex Court held as follows : "As has been clearly stated in the Halsbury's Laws of England, Third Edition, Volume 34, a contract of sale of goods must be distinguished from a contract for work and labour. The distinction is often a fine one. A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer. Where however the main object of work undertaken by the payee of the price was not the transfer of chattel qua chattel, the contract is one of work and labour. The test is, whether or not the work and labour bestowed end in anything that can properly become the subject of sale; neither the ownership of the materials nor the value of the skill and labour as compared with the value of the materials is conclusive, although such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract was in substance one for work and labour and one for the sale of a chattel." After considering the relevant decisions on the subject, the apex Court quoted with approval the principles to be borne in mind as enunciated in Benjamin's Treatise on the Law of Sale of Personal Property with reference to the French Code and Civil Law, Eighth Edition (1950) at pages 167-168, where the learned editor has deduced the principles that would be applicable in deciding the controversy before us. These principles are : "1. These principles are : "1. A contract whereby a chattel is to be made and affixed by the workman to land or to another chattel before the property therein is to pass, is not a contract of sale, but a contract for work, labour and materials, for the contract does not contemplate the delivery of a chattel as such. 2. When a chattel is to be made and ultimately delivered by a workman to his employer, the question whether the contract is one of sale or of a bailment for work to be done depends upon whether previously to the completion of the chattel the property in its materials was vested in the workman or in his employer. If the intention and result of the contract is to transfer for a price property in which the transferee had no previous property then the contract is a contract of sale. Where, however, the passing of property is merely ancillary to the contract for the performance of work such a contract does not thereby become a contract of sale. 3. Accordingly : (i) Where the employer delivers to a workman either all or the principal materials of a chattel on which the workman agrees to do work, there is a bailment by the employer, and a contract for work and labour, or for work, labour and materials (as the case may be), by the workman. Materials added by the workman, on being affixed to or blended with the employer's materials, thereupon vest in the employer by accession, and not under any contract of sale. (ii) Where the workman supplies either all or the principal materials, the contract is a contract for sale of the completed chattel, and any materials supplied by the employer when added to the workman's materials vest in the workman by accession. The learned editor has emphasised that where passing of property was merely ancillary to the contract for the purpose of the work, such a contract does not thereby become a contract for sale. This principle can also be deduced from the observations of the decision of Robinson v. Graves [1935] 1 KB 579." While laying down the principles governing the matter as above, the learned Judges adverted to the particular contract under consideration before them. This principle can also be deduced from the observations of the decision of Robinson v. Graves [1935] 1 KB 579." While laying down the principles governing the matter as above, the learned Judges adverted to the particular contract under consideration before them. While doing so, the fact that prices separately provided as cost plus 10 per cent as well as the further fact that the bills and invoices were also made separately indicating the prices involved in the transaction was specifically noticed and was considered to be of no serious consequence having regard to the basic nature of the contract. The fact that the apex Court was deciding the issues raised in that case with reference to the particular contract which was in writing and so far as the present case before us is concerned, there was no such contract in writing, in our view does not make any difference. The nature of the work undertaken by the assessee, in our view, by themselves provide an indication about the primary object of the parties to the contract and that the intention between the parties was only to do the works undertaken as one job and that there was no intention whatever to pass any property in any chattel qua chattel. In our view, it is unnecessary to refer to all the other decisions cited from the Bar and the two decisions referred to are more than sufficient for the purpose of the case before us and for analysing the nature of the transaction under consideration in this case. The conclusions arrived at by the Tribunal, when considered in the light of the principles laid down supra by the apex Court, will go to show that the Tribunal was perfectly right in its findings that the contract was primarily a works contract for work and labour and that the supply of material was merely incidental to the execution of the said works contract and that no contract of sale of chattel qua chattel could be inferred from the transactions of the assessee. On that view we are of the opinion that the factual findings rendered by the Tribunal could not be said to suffer any patent error of law or perversity of approach warranting interference by us in exercise of our revisional jurisdiction. The contention for the Revenue, therefore, fails and consequently T.C. (R) No. 156 of 1983 shall stand dismissed. On that view we are of the opinion that the factual findings rendered by the Tribunal could not be said to suffer any patent error of law or perversity of approach warranting interference by us in exercise of our revisional jurisdiction. The contention for the Revenue, therefore, fails and consequently T.C. (R) No. 156 of 1983 shall stand dismissed. Since we have sustained the order of the Tribunal and its findings that the transactions of the respondents - assessee were not exigible to sales tax under the Act, the question of penalty does not arise for consideration and on that ground alone T.C. (R) No. 157 of 1983 shall stand dismissed. But, in the circumstances there will be no order as to costs, in both the cases. Petitions dismissed.