JUDGMENT B. R. ARORA, J. - These two appeals are directed against the judgment dated April 22, 1992 passed by the learned single Judge, by which the learned single Judge dismissed the two writ petitions filed by the petitioner-appellant and held that the petitioner is a "dealer" as defined in section 2(f) of the Rajasthan Sales Tax Act, 1954 and the transaction in question is a "contract for sale" which attracts the tax under the Act. As both these appeals arise out of the same judgment and raise the same controversy, they are, therefore, being disposed of by this common judgment. 2. The brief facts of the case are that the appellant-assessee is a registered partnership-firm carrying on the business of bricks-kiln contracts. During the assessment years 1983-84, 1984-85, 1985-86 and 1986-87, the appellant entered into four contracts with Indira Gandhi Nahar Project of the Government of Rajasthan for the supply of the kiln-burn tiles of the size 30 cm x 15cm x 5cm and bricks of the size 232 cm x 11 cm x 5 cm at the site at the rates mentioned and on the terms and conditions set up in the contracts. The appellant, on February 25, 1988 received a notice under section 12 of the Rajasthan Sales Tax Act (for short, "the Act") from the Assistant Commercial Taxes Officer, Hanumangarh for the assessment years 1983-84 and 1984-85. The petitioner-appellant challenged these notices issued by the Assistant Commercial Taxes Officer, Hanumangarh, by way of filing S.B. Civil Writ Petition No. 605 of 1988 (Verma Construction Company v. State of Rajasthan). The petitioner-appellant, also, received a notice under section 12 of the Act on September 18, 1989 with respect to the assessment years 1985-86 and 1986-87 and challenging these notices he filed S.B. Civil Writ Petition No. 3943 of 1989 (Verma Construction Company v. State of Rajasthan). 3. Both the writ petitions were opposed by the respondents. The learned single Judge, by his judgment dated April 22, 1992, dismissed both the writ petitions and held that the petitioner-appellant is a "dealer" and the transaction of supplying the bricks and tiles constitute the "sale" which attracts the provisions of the Rajasthan Sales Tax Act, 1954. It is against this judgment dated April 22, 1992 that the appellant has preferred these two appeals. 4. It is against this judgment dated April 22, 1992 that the appellant has preferred these two appeals. 4. It is contended by the learned counsel for the appellant that the contract entered into by the petitioner-appellant with the respondents were the "labour contracts" for making the bricks from the materials supplied by the department. The property and all the materials supplied by the department always remained the property of the department and never vested with the appellant. Even the baked bricks, also, vested in the department and the bricks and the tiles which were not prepared as per the specification laid down, also, vested with the department and the department had right to allot such bricks to the appellant-petitioner on payment of the price fixed by the department. The contracts in question were, therefore, only for the work and labour and not for the supply or sale of the bricks and, therefore, the appellant cannot be termed as a "dealer" nor the transaction can be said to be a "sale". Learned counsel for the appellant, also, submitted that the learned single Judge was not justified in relying upon the judgment of this Court given in the case of Sunder Das Jindal and Company v. State of Rajasthan [1984] 56 STC 89 (Raj). According to the learned counsel for the appellant, the terms and the conditions of the contracts, in the case of the appellant, were different from those of the conditions in Sunder Das Jindal & Co.'s case [1984] 56 STC 89 (Raj). 5. Learned counsel for the respondents, on the other hand, has supported the judgment passed by the learned single Judge and submitted that the appellant is a "dealer" within the meaning of section 2(f) of the Act and the transactions in question were the "sale" exigible to tax and the learned single Judge was right in applying the ratio of Sunder Das Jindal & Co.'s case [1984] 56 STC 89 (Raj). 6. We have considered the submissions made by the learned counsel for the parties. 7. The short question that arises for determination in these appeals is : whether the contract for the supply of bricks and tiles by the appellant to the Indira Gandhi Canal Project is a "contract for works and labour" or it is a "contract for sale" ? 8. 7. The short question that arises for determination in these appeals is : whether the contract for the supply of bricks and tiles by the appellant to the Indira Gandhi Canal Project is a "contract for works and labour" or it is a "contract for sale" ? 8. "Sale" is a transfer of the ownership in a thing from one person to another for a money price by a mutual consent. To constitute "sale" there must be transfer of the title and possession of the property for a consideration, while in a "contract for work" there is no "sale" because the property did not pass for a price. The distinction between the "contract for the work and labour" and the "contract for sale" has been pointed out in Halsbury's Laws of England, Fourth Edition, Volume 41 (para 603 at page 557) in the following words : "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 the main object of which is the transfer of the property in, and the delivery of the possession of, a chattel as such to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of chattel as such, the contract is one for work and labour. The test is whether or not the work and the 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 is in substance one for work and labour or one for the sale of a chattel." 9. Benjamin, in his book "Treatise on the Law of Sale of Personal Property" with Reference to the French Code and Civil Law, at page 190, laid down the following propositions to differentiate between a "contract for sale" and a "contract for work" : "(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. (3) Accordingly, (i) Where the employer delivers to workman either all or the principal materials of 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 of 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. (4) ................." 10. Now, coming to the decisions cited at the Bar. We would first like to deal with the cases relied upon by the learned counsel for the appellant. 11. (4) ................." 10. Now, coming to the decisions cited at the Bar. We would first like to deal with the cases relied upon by the learned counsel for the appellant. 11. In Government of Andhra Pradesh v. Guntur Tobaccos Ltd. [1965] 16 STC 240 the Supreme Court laid down that "a contract for work" in the execution of which goods are used may take one of three forms : (i) the contract may be for the work to be done for remuneration and for supply of materials used in the execution of the work of a price; (ii) it may be a contract for work in which the use of material is accessory or incidental to the execution of the work; (iii) or it may be a contract for work and use or supply of the material, though not accessory to the execution of the contract, is voluntary or gratuitous. In the last class there is no "sale" because though property passes, it did not pass for a price. Whether a contract is of the first or the second class, must depend upon the circumstances; if it is of the first, it is a composite contract for work while in a case, where it is of a second category, it is a contract for execution of the work not involving sale of goods. 12. In State of Gujarat v. Kailash Engineering Co. (Pvt.) Ltd. [1967] 19 STC 13 (SC) the respondent constructed three coaches over the chassis supplied by the Western Railway administration under a contract with the latter and received money therefor. It was provided in the contract that as soon as the plant and materials were brought on the site where the coaches were to be constructed, the ownership in them would vest in the railway. The duty of the respondent was described throughout the contract to be that of constructing, erecting and furnishing coach bodies on the underframes supplied. At no stage did the contract mention that ready coach bodies were to be delivered by the respondent to the railway. The duty of the respondent was described throughout the contract to be that of constructing, erecting and furnishing coach bodies on the underframes supplied. At no stage did the contract mention that ready coach bodies were to be delivered by the respondent to the railway. In these circumstances the Supreme Court held that "as the terms of the contract indicated that the respondent was not to be the owner of the ready coaches and that the property in those bodies vested in the railway even during the process of construction, the transaction was clearly a works contract and did not involve any sale." 13. In Commissioner of Sales Tax, M.P. v. Purshottam Premji [1970] 26 STC 38 (SC) under a contract with the South Eastern Railway the respondent was to quarry stones from quarries belonging to the railway and break the stones into pieces and convert them into ballast of specified sizes and supply them to the railway administration at specified rates. The apex Court, therefore, held that "since the property in the ballast, at all relevant times, was with the South Eastern Railway, and the ballast was never the property of the respondent, there was no question of the respondent transferring any property in it to the railway. There was no sale in the supply of the ballast under the contract within the meaning of section 2(n) of the Madhya Pradesh General Sales Tax Act, 1958". 14. In Commissioner of Commercial Taxes, Mysore, Bangalore v. Hindustan Aeronautics Ltd. [1972] 29 STC 438 (SC) an order was placed by the Railway Board on the Hindustan Aeronautics Ltd., for the manufacture and supply of a specific number of coaches according to the specification. Advance "on account" payment to the extent of 90 per cent of the value of the materials to be used was made to the assessee on production of the inspection certificate. Under a standing indemnity bond the assessee undertook to hold at its works "for and on behalf of" the President of India "and as his property in trust for him the stores and articles in respect of which advances" were made, and the property in the materials which were used for the construction of the coaches thus became the property of the President before they were used. The construction was done at a separately located shed and no other construction was undertaken therein. The construction was done at a separately located shed and no other construction was undertaken therein. A "price" was fixed per coach and there was an escalation clause in the contract for material and wages escalation and the final price was to be settled by negotiation on the basis of the material and wages escalation clause. The question before the Supreme Court was : whether there was a "sale" of coaches by the assessee to the Railway Board within the meaning of the Central Sales Tax Act, 1956 ? The Supreme Court held that "(i) the transaction for the manufacture and supply of the coaches was a pure works contract. When all the materials used in the construction of a coach belonged to the railway there could be no sale of the coach itself. The difference between the price of a coach and the cost of material could only be the cost of the service rendered by the assessee; (ii) that the fact that in the case of coach model 411 the wheelsets and underframes were not supplied free of cost did not make any difference". The Supreme Court further held that "the answer to the question whether a contract is a works contract or a contract of sale depends upon the construction of the terms of the contract in the light of the surrounding circumstances". 15. In Sentinel Rolling Shutters & Engineering Company Pvt. Ltd. v. Commissioner of Sales Tax [1978] 42 STC 409 (SC) the assessee entered into a contract for fabrication, supply, erection and installation of two rolling shutters in two sheds belonging to that company for a price which was inclusive of charges for "erection at site". The contract provided, among others, that the delivery of the goods was to be ex-works and once the delivery was effected rejection claims would not be entertained. All masonry works required before and/or after erection was to be carried out by the company at its own cost. Payment were to be made on overall measurements which should be checked by the company before installation. All masonry works required before and/or after erection was to be carried out by the company at its own cost. Payment were to be made on overall measurements which should be checked by the company before installation. The question before the Supreme Court was : whether the contract was a "contract for sale" or a "contract for work and labour" and the Supreme Court held that "the contract was one single and indivisible contract and the erection and installation of the rolling shutters was as much a fundamental part of the contract as the fabrication and supply. The contract was clearly and indisputably a contract for work and labour and not a contract for sale." 16. A similar controversy again came up for consideration before the Supreme Court in Ram Singh & Sons Engineering Works v. Commissioner of Sales Tax, U.P. [1979] 43 STC 195 and the Supreme Court held that "a contract for fabrication and erection of a 3-motion electrical overhead travelling crane is a contract for work and labour and not a contract for sale." 17. In Hindustan Aeronautics Ltd. v. State of Karnataka [1984] 55 STC 314 (SC) the assessee, under an agreement to accomplish the servicing and maintenance of certain Air Force planes to the specified standard. All the necessary spare parts and the material were to be supplied by the Government but in case of delay, the assessee was to purchase or manufacture, within an expenditure authorised by the Government. All items provisioned by the appellant were to be the property of the Government and were to be issued on contract loan and the Government agreed to pay (a) for items manufactured by the appellant, cost plus 10 per cent and (b) for items purchased from indigenous or overseas sources, actual invoice price plus all other charges which the appellant had to pay such as packing and shipping plus 5 per cent. After each work was completed, a final inspection of the repair done was checked by the works inspection department and thereafter a delivery order and a bill were prepared. After each work was completed, a final inspection of the repair done was checked by the works inspection department and thereafter a delivery order and a bill were prepared. The question before the Supreme Court was whether the equivalent to the money value of the spare parts of the aircraft which the appellant had supplied to the Air Force as a result of their use in the process of repairing, servicing and overhauling the aircraft, their instruments and accessories which were sent to the appellant for those purposes, could be subjected to sales tax ? The Supreme Court held that "the contract was to accomplish for the Government the servicing and maintenance of aircrafts of the Air Force and works required on visiting aircraft according to the specified standard. The Government undertook to supply the bulk of the materials and it was only because the aircraft had to be kept in readiness and there should be no delay in getting materials, that the contract provided for the appellant to carry on the works by manufacturing or buying the requisite materials in case of delay, the expenditure therefor being authorised by the Government's Deputy Financial Adviser. The expression "all items provisioned will be the property of the Government and will be issued on contract loan" indicated that though gathered and processed or manufactured by the appellant, the appellant would have no property in those goods and would not be able to dispose of or deal with them but they would be treated as the property of the Government. The fact that those materials were separately placed at cost plus 10 per cent profit was to ensure quick and proper execution of the work and was a neutral factor. Therefore the spare parts and materials were supplied by the appellant in the course of execution of works contracts, there was no sale thereof and their turnover was not exigible to sales tax". The Supreme Court further held that "where passing of property was merely ancillary to the contract for the purposes of the works such a contract does not thereby become a contract of sale". 18. In Hindustan Aeronautics Limited v. State of Orissa [1984] 55 STC 327 (SC) HAL was entrusted by the Government of India with the manufacture of MIG engines for which the Government had obtained a licence from the U.S.S.R. under an agreement. 18. In Hindustan Aeronautics Limited v. State of Orissa [1984] 55 STC 327 (SC) HAL was entrusted by the Government of India with the manufacture of MIG engines for which the Government had obtained a licence from the U.S.S.R. under an agreement. All payments falling due under the agreement to the Government of U.S.S.R. had to be made by the HAL on behalf of the Government of India. The materials imported by HAL for the manufacture as well as goods, stocks and stores, work-in-progress, etc., were the property of the Air Force and the items manufactured by HAL were to be supplied only to the Air Force or as authorised by the Government, i.e., the materials belonged to the Government. Some of the engines manufactured by HAL in its division in Orissa were sent to its Nasik Division where the MIG aircraft was finally assembled for delivery to the Government of India. The sales tax authorities were of the view that the entrustment of HAL of the manufacture of MIG engines amounted to a contract of sale and Central sales tax was attracted when the engines were delivered to the Nasik Division. HAL claimed that the transaction represents a works contract. The Supreme Court, therefore, held that "at no point of time before the delivery of the MIG engines, HAL was the owner of the property either in the equipment or in the spares or in the aircrafts and as such there could not have been transfer of any property from HAL to the Government of India. HAL only performed the job entrusted to them for and on behalf of the Government and all incidental steps, such as, entering into contract, procurement, payment of price and billing and invoices had to be done in that light. Since HAL had no ownership in the materials which were all supplied by the Government of U.S.S.R., nor in the finished products and no question of sales tax on the transaction could arise". 19. In State of Tamil Nadu v. Anandam Viswanathan [1989] 73 STC 1 (SC) the respondent-assessee entered into a contract with universities and other educational institutions in the country for printing question papers. The charges of printing, black-making, etc., and the value of the paper were given separately. 19. In State of Tamil Nadu v. Anandam Viswanathan [1989] 73 STC 1 (SC) the respondent-assessee entered into a contract with universities and other educational institutions in the country for printing question papers. The charges of printing, black-making, etc., and the value of the paper were given separately. The respondent paid sales tax on the value of the paper and the question before the Supreme Court was whether the taxable turnover should also include the printing and block-making charges ? The Supreme Court held that "the contract in this case was one, having regard to the nature of the job to be done and the confidence reposed, for work to be done for remuneration and no liability to sales tax arose in respect thereof". 20. Now, we take up the cases relied upon by the learned counsel for the Revenue. 21. In Chandra Bhan Gosain v. State of Orissa [1963] 14 STC 766 (SC) the appellant was manufacturing and supplying large quantities of bricks to a company under a contract. There was a clause in the contract providing that "land will be given free" by the company. The contention of the appellant was that the contract was only for labour or for work done and material found, and there was really no sale of any goods on which the tax could be levied. The Supreme Court held that "under the contract there was a transfer of property in the earth to the appellant by the company; (ii) although the contract did not use the word "sale" there was also a transfer of property in the bricks from the appellant to the company for consideration and, therefore, there was a sale liable to sales tax; and (iii) the fact that under the contract the bricks had to be manufactured according to certain specifications, and, therefore, the appellant had to bestow a certain amount of skill and labour in the manufacture of the bricks did not affect the question. The essence of the contract was the delivery of the bricks and it was a contract for the transfer of chattels qua chattels." 22. In State of Rajasthan v. Man Industrial Corporation Ltd. [1969] 24 STC 349 (SC) the assessee was given a contract for fabricating and fixing certain windows in accordance with specifications, designs, drawing and instructions. The windows were to be fixed to the building with rawl plugs in cut stone-works. In State of Rajasthan v. Man Industrial Corporation Ltd. [1969] 24 STC 349 (SC) the assessee was given a contract for fabricating and fixing certain windows in accordance with specifications, designs, drawing and instructions. The windows were to be fixed to the building with rawl plugs in cut stone-works. The rate quoted by the respondent was based on the current price of mild steel billets and the price was to be revised if there was a change in the controlled price of billets supplied to the respondent. The question before the Supreme Court was whether the sum received under the contract could be included in the taxable turnover for the purpose of sales tax ? The Supreme Court was of the view that the contract was for the execution of the work not involving sale of goods because only on fixing the windows as stipulated, could the contract be fully executed and the property in the windows passed on the completion of the work and not before. 23. In Commissioner of Sales Tax, Gujarat v. Sabarmati Reti Udyog Sahakari Mandali Ltd. [1976] 38 STC 203 the question before the Supreme Court was whether the supplies of bricks by the assessee to the Public Works Department were sales or works contract ? The Supreme Court, relying upon the decision in Chandra Bhan Gosain's case [1963] 14 STC 766 (SC), held that "the contract was a contract of sale and not a works contract and the assessee was liable to sales tax". 24. In Sunder Das Jindal and Company v. State of Rajasthan [1984] 56 STC 89 (Raj) the assessee entered into a contract with the Executive Engineer, Rajasthan Canal Project on behalf of the Government of the State of Rajasthan for manufacture and supply of bricks and tiles to the State Government for the use in the construction of Rajasthan Canal. The earth was supplied free of cost by the State Government but the other raw material, etc., were to be arranged by the contractor. The Division Bench of this Court, therefore, held that the case was one for the sale of bricks and tiles manufactured by the assessee and as the assessee has entered into a contract for sale of bricks and tiles, he was a "dealer" within the meaning of section 2(f) of the Act. 25. The Division Bench of this Court, therefore, held that the case was one for the sale of bricks and tiles manufactured by the assessee and as the assessee has entered into a contract for sale of bricks and tiles, he was a "dealer" within the meaning of section 2(f) of the Act. 25. The cases relied upon by the learned counsel for the parties, which have been discussed above, lay down only a general principal pointing out the distinction between the "works contract" and the "contract for sale". The ultimate decision of the individual case turns upon the true interpretation of the contract entered into between the parties, the circumstances of the transaction, the object of the parties and the customs of the trade. Whether a contract is a "works contract" or a "contract of sale" depends upon the construction of the terms of the contract in the light of the surrounding circumstances. The court has to find out what was the primary object of the transaction and the intention of the parties while entering into the contract ? Mere passing of the property will not render the transaction to be a transaction of sale. Even in a contract purely for work and labour, the article or property may pass to the other party. To constitute "sale" there must be transfer of title and possession in the property for a consideration. If there is a transfer of property for a consideration, in which the transferee has no previous right then the contract is a "control for sale" but where the passing of the property is merely ancillary to the contract for performance of the work, such a work does not thereby become a "contract for sale". 26. In the light of these principles laid down by the Supreme Court, now, we have to see whether the contract in the present case was a "works contract" or a "contract for sale" ? 27. In a contract for work, there is no "sale" because though the property passed but it does not pass for a price, while a "contract for sale" is a contract where the main object is the transfer of the property in and the delivery of the possession of the chattel as a chattel to the buyer. 27. In a contract for work, there is no "sale" because though the property passed but it does not pass for a price, while a "contract for sale" is a contract where the main object is the transfer of the property in and the delivery of the possession of the chattel as a chattel to the buyer. We have, therefore, to find out from the terms and conditions of the contract what was the primary object of the transaction, the attending circumstances and the intention of the parties while entering into the contract. 28. The appellant entered into four identical contracts with the respondents for the supply of kiln-burn bricks and tiles on the terms and conditions set out in the contract. The terms and conditions, which are relevant for the determination of the present controversy are that (i) royalty and sales tax to be paid by the department; (ii) water to be supplied by the department free of cost in the moulding area though water pond is to be constructed by the contractor; (iii) coal to be supplied free of cost by the department as per the Schedule (item No. 7); (iv) the rejected and by-product materials not required by the department, after payment of royalty, sales tax and the water charges, if the department so desires, will be sold to the contractor at the rate of Rs. 120 per thousand tiles, Rs. 100 per thousand of bricks and khog at the rate of Rs. 50 per thousand cubic feet; and (v) clay required for manufacture of the bricks will be supplied by the department free of cost and in case of excess burning of the coal in baking the bricks, the same will be supplied by the department to the contractor at the issue rate. 29. The terms and conditions of the contracts, thus, indicate that all the material used in the manufacture of the bricks and the tiles were supplied by the Government free of cost and belonged to the department. The contract was for manufacture and supply of the bricks and tiles and both the elements were two inseparable elements of the contract. Chattel is produced and transferred as a chattel. The contract was for manufacture and supply of the bricks and tiles and both the elements were two inseparable elements of the contract. Chattel is produced and transferred as a chattel. The bricks and the tiles manufactured and produced and the materials used by the contractor, in fact, even from the earlier stage and even during the process of manufacture, as per the terms and conditions of the contract, always remained the property of the State, i.e., the Rajasthan Canal Project. At no point of time it was the property of the contractor. Condition No. 5 of the terms and conditions of the contract, which deals with the selling of the rejected material and by-product by the department to the contractor at Rs. 120 per thousand of tiles, Rs. 100 per thousand of bricks and Rs. 50 per hundred cubic feet of broken material clearly reflects that the ownership of the bricks, tiles and the other materials was that of the Government and at no stage of time the contractor became the owner of the bricks, tiles, etc., so as to transfer the bricks and the tiles to the Government. Merely the delivery of the bricks and the tiles manufactured by the contractor in performance of the contract, does not amount to "sale". 30. "Sale", according to section 2(o) of the Rajasthan Sales Tax Act, 1954 means every transfer of the property or the goods (other than by way of mortgage, hypothecation, charge or pledge) by one person to another for cash or deferred payment or other valuable consideration. To constitute "sale" as per section 2(o) of the Act, there must be (i) transfer of the title in the property; (ii) the transfer of the title should be supported by money consideration; and (iii) there should be actual transfer of the possession. 31. In Chandra Bhan Gosain v. State of Orissa [1963] 14 STC 766 (SC) the appellant Chandra Bhan Gosain entered into a contract for manufacture and supply of the bricks to the company. The bricks were to be made out of the earth belonging to the company. The land was given free of charge by the company to the contractor. The bricks remained at the contractor's risk till the delivery to the company. The contractor was not allowed to sell the bricks to other party without the permission of the company. The bricks were to be made out of the earth belonging to the company. The land was given free of charge by the company to the contractor. The bricks remained at the contractor's risk till the delivery to the company. The contractor was not allowed to sell the bricks to other party without the permission of the company. Since the bricks remained the property of the contractor throughout, therefore, the Supreme Court held that it was a transaction for the sale of bricks; while in the present case the terms and conditions of the contract are different. In the present case the bricks never remained the property of the contractor. The ratio of this judgment is, therefore, not applicable to the present case. 32. In Commissioner of Sales Tax, Gujarat v. Sabarmati Reti Udyog Sahakari Mandali Ltd. [1976] 38 STC 203 (SC) the assessee entered into a contract with the Public Works Department of the Government of Gujarat for the manufacture and supply of kiln-burn bricks. As per the conditions of the contract, all the necessary arrangements of raw materials, equipments, water, coal, labour, etc., required for the supply and manufacture of the bricks had to be made by the contractor at his own cost but the Government was to provide the land for excavation of the soil for manufacture of the bricks, free of cost. There was, also, a condition to the effect that the contractor shall have no right to sell the bricks or any other material manufactured at the site to a private party but a penal provision for charging of 10 per cent of the value of the material at the tendered rate was fixed if the manufactured article is sold by him to a private party. Except the land given free of court, all other arrangements had to be made by the contractor; while in the present case all the materials used for the manufacture of bricks and tiles were supplied by the Government and remained the property of the Government. The ratio of this judgment is, therefore, not applicable to the present case. 33. Similar is the case of Sunder Das Jindal and Company v. State of Rajasthan [1984] 56 STC 89 (Raj). The ratio of this judgment is, therefore, not applicable to the present case. 33. Similar is the case of Sunder Das Jindal and Company v. State of Rajasthan [1984] 56 STC 89 (Raj). In this case only the land for excavating the clay required for the manufacture of the bricks was supplied free of cost by the Government and the price of coal supplied to him was subject to the adjustment thereof in the running bills of the contractor. The water though supplied by the Government was also, charged. The contractor was responsible for making his own arrangements for the remaining raw materials. The Division Bench of this Court, therefore, held that the transaction amounts to "sale" as the title in the bricks and the tiles did not pass to the State Government until the delivery was given by the contractor to the officer of the State and the property, therefore, remained the property of the Government. The terms and the conditions of the contract, in the present case, are different from the terms and conditions of the contract in the above case. 34. In the present case, at all point of time the title in the material used for manufacture as well as in the bricks and the tiles remained of the Government. The contractor, at no point of time, became the owner of the bricks or the tiles or of raw material used in the manufacturing process. The nature of the transaction, thus, clearly indicates that no sale was involved in the transaction and it is essentially a transaction for the performance of the contract for works and labour, i.e., for the manufacture and supply of the bricks and the tiles from the material supplied by the department and not a contract for sale. In this view of the matter we are of the opinion that the learned single Judge was not justified in holding the transaction as the "sale" and the petitioner (appellant) as a "dealer". 35. In the result, both the appeals filed by the appellant are allowed. In this view of the matter we are of the opinion that the learned single Judge was not justified in holding the transaction as the "sale" and the petitioner (appellant) as a "dealer". 35. In the result, both the appeals filed by the appellant are allowed. The judgment dated April 22, 1992 passed by the learned single Judge is quashed and set aside and the writ petitions filed by the petitioner-appellant are allowed and it is held that the transaction involved in the present case is not a "sale" exigible to tax and the petitioner-appellant is not a "dealer" for the transaction under the contract. Appeals allowed.