JUDGMENT A. K. MATHUR, C.J. - In both the writ petitions, a common question of law is involved; therefore, they are disposed of by this common order. For convenient disposal of both the writ petitions, the facts given in M.P. No. 1118 of 1990 are taken into consideration. 2. Petitioner M/s. National Thermal Power Corporation Limited is a Government of India undertaking. It is incorporated under the Indian Companies Act, 1956 and it has its registered office at N.T.P.C. Bhawan, Scope Complex, 7 Institutional Area, Lodi Road, New Delhi. By this petition, the petitioner has challenged levy of sales tax by the respondent-State for the period from 1st April, 1983 to 31st March, 1984 on the supply of petitioner's own materials like iron and steel, cement, etc., to its contractors for exclusive use in the construction of petitioner's power plants, offices, residential quarters, townships, etc., in Vindhyanagar, treating such supply as "sale". 3. The petitioner floated tenders for civil works for construction of various sections of power plants, residential colonies, etc., at Vindhyanagar, on rate contracts. As per the terms of the civil works contract as given in the award letter, the petitioner undertook to provide its own iron and steel, cement, etc., of requisite quantity at the specified rate and the value of such material was to be set-off/deducted from the bills payable to the contractors for the works actually done by them In accordance with terms and conditions and specifications of the contract. 4. The petitioner-corporation obtained a provisional registration certificate dated 23rd November, 1982 under section 16-B of the M.P. General Sales Tax Act, 1958 (for short, "the Act"). The petitioner-corporation filed a consolidated return on 25th March, 1985 for the period 1983-84 on the basis of financial year followed by it in which "nil" turnover in respect of sales was shown. The assessment proceedings were taken up by Assistant Commissioner of Sales Tax. The petitioner was asked to furnish details and on furnishing details of the works got done through contractors and payment made to them and the recoveries made from their bills for the materials supplied to them for the execution of the works, etc. the assessment proceedings continued. The contention of the petitioner was that there was no sale and as such it was not liable for payment of sales tax. the assessment proceedings continued. The contention of the petitioner was that there was no sale and as such it was not liable for payment of sales tax. The Assistant Commissioner held that the supply of materials such as iron and steel and cement to the contractor under the works contract was a sale and determined the tax payable it Rs. 10,36,891.30. He also levied a penalty of Rs. 2,60,000 under section 17(3)(2) of the Act and for not filing quarterly returns. 5. The petitioner contested the matter and submitted that no sale was involved in supply of its own material to the contractors for the petitioner's own work. In revision before the Additional Commissioner of Sales Tax under section 39(i) of the Act, the case was remanded to the assessing authority for reassessment in accordance with law for levy of tax and to re-determine the penalty leviable under section 17(3) of the Act vide order dated 4th January, 1990. The petitioner-corporation instead of approaching the taxing authority on remand has filed this writ petition challenging the view taken by the Assistant Commissioner of Sales Tax and Additional Commissioner of Sales Tax that the petitioner is liable to pay sales tax 'for the goods supplied by it to the contractor for construction of works. The main submission of the petitioner is that as per the terms of contract, the petitioner-corporation was not under obligation to supply these goods to the contractor and by no stretch of imagination such transfer of goods by the petitioner-corporation can be termed as a sale under section 2(n) of the Act and the petitioner is not liable to pay the sales tax and likewise the penalty. In this connection, the petitioner-corporation referred to the general conditions of the contract and reproduced clause 15(b) of the Civil Contracts (General Conditions of Contracts-Civil Works). 6. The petition was contested by the respondents and in their return they submitted that since the petitioner had supplied the goods to the contractor and has charged price therefor, therefore, it amounts to "sale" within the meaning of section 2(n) of the Act and hence the approach of the Assistant Commissioner as well as the Additional Commissioner of Sales Tax is correct. 7. 7. In order to decide the controversy in the matter, much will depend upon the terms and conditions of the contract entered into between the petitioner-corporation and the contract or for construction of the power house. Clause 15(b) of the Civil Contracts (General Conditions of Contracts-Civil Works) which is relevant for our purposes is reproduced as under : "15(b) : Material to be supplied by the corporation Materials to be supplied by the corporation are shown in Schedule 'B' which also stipulates quantum, place of issue and rate(s) to be charged in respect thereof. (1) If after acceptance of the tender the contractor desires the corporation to supply any other materials, such materials may be supplied by the corporation, if available, at rates to be fixed by the Engineer-in-Charge. The corporation reserves the right not to issue any such materials. The non-issue of such materials will not entitle the contractor for any compensation whatsoever either in time or in cost. 2(a). The corporation may issue all the materials to be issued to the contractor under the contract at its site stores or nearest rail head. In case the materials are issued at the nearest rail head the cost of the transportation only from the nearest rail head to the site will be borne by the corporation subject to the reasonableness of such transportation cost being certified by the Engineer-in-Charge. All other costs such as loading, unloading, transportation to contractor's godown, storage, etc., till the materials are incorporated in the works or returned to the corporation shall be to the account of the contractor. 2(b). For the materials listed in Schedule (8) which the corporation has agreed to supply to the contractor, he shall give a reasonable notice in writing of his requirements to the Engineer-in-Charge in accordance with the agreed phased programme. Such materials shall be supplied for the purpose of the contract only and the value of materials so supplied at the rates specified in the aforesaid Schedule shall be set-off or deducted, as and when materials are consumed in item of work for which payment is being made to the contractor, from any sums then due or which may thereafter become due to the contractor, under the contract. At the time of submission of bills the contractor shall properly account for the materials issued to him to the satisfaction of the Engineer-in-Charge, certify that balance of materials supplied is available at site. 3. The contractor shall bear the cost of loading, transporting to site, unloading, storing under cover as required, assembling and joining the several parts together as necessary and incorporating or fixing materials in the works including all preparatory work of whatever description as may be required. 4. All materials issued to the contractor by the corporation for incorporation of fixing in the works (including preparatory work) shall, on completion or on foreclosures of the works, be returned by the contractor at his expense at the place of issue, after making due allowance for actual consumption, reasonable wear and tear and/or waste. The reasonable wastage percentage shall however be mentioned in Schedule indicating the issue of stores. If the contractor is required to deliver such materials at a place other than the place of issue, he shall do so and the transportation charges from the site to such place, less the transportation charges which would have incurred by the contractor had such materials been delivered at the place of issue, shall be borne by the corporation. 5. The following are the allowable wastages on different materials (a) Cement 3 per cent of estimated quantity of cement to be used in items of work. (b) Reinforcement steel5 per cent of estimated quantity based on bar banding schedules. (c) Structural steel As stipulated in technical specification (d) Cut-pieces of reinforcement rods of length 3.0 metres and above may be accepted by the corporation and credit given at the issue rates. 6. Surplus materials returned by the contractor shall be credited to him by the Engineer-in-Charge at rates not exceeding those at which these were originally issued to him after taking into consideration any deterioration or damage which may have been caused to the said materials whilst in the custody of the contractor. 7. If on completion of works the contractor fails to return surplus materials out of those supplied by the corporation, then in addition to any other liability which the contractor would incur the Engineer-in-Charge may by a written notice to the contractor, require him to pay within a fortnight of receipt of the notice for such unreturned surplus materials at double the issue rates. 8. 8. Empty cement bags The recovery of cement is inclusive of cost of jute or paper bags. The contractor shall have to return at least 90 per cent of the cement jute bags in good and acceptable condition to the bag collecting agents. The payments for the cost of empty bags will be made to the contractor by the bag collecting agents. The contractor shall get the name of the bag collecting agent, from the Engineer-in-Charge in writing. The contractor must produce the certificate on the printed letter head from the authorised bag collecting agents as proof for the number of bags returned by him while claiming payment against each running bill. In cases the number of serviceable jute bags returned is less than 90 per cent of the jute bags issued, compensation at the rate of Re. 1 per bag returned short of the minimum number shall be recovered from the contractor. The contractor should send intimation by registered post to the bag collecting agents of cement factories for collecting the bags within a period of 30 days. If the bag collecting agents fail to turn up within specified period, the contractor with prior approval of the Engineer-in-Charge shall be at liberty to dispose of the bags." 8. Shri Shrivastava, learned counsel for the petitioner submitted that as per the aforesaid condition No. 15(b), the corporation was under obligation to supply all the materials stipulated therein in specified quantity at the rate specified and those goods supplied by it will remain the property of the corporation and the contractor has to use that material and the price of that material consumed shall be deducted from the final bills of the contractor. Learned counsel submits that in fact it remained the property of the petitioner and the contractor was not supposed to take that material. In case, he takes the material, then he has to pay the price for it. Learned counsel submitted that in the case of Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 where though similar question arose before the apex Court but in that case it was not seriously disputed whether such contract amounts to sale or not. In that case, almost similar contract came for consideration arising out of Orissa Sales Tax Act. In that case, almost similar contract came for consideration arising out of Orissa Sales Tax Act. During 1954 to 1959, the company was erecting a factory building for its steel plant, residential buildings for its employees and ancillary work such as roads, water supply and drainage. Some constructions were done departmentally and the rest through contractors. The company supplied to the contractors for use in construction bricks, coal, cement, steel, etc., for a consideration which in addition to the cost price of the company included some additional amounts which were charged by the company. Question was whether the supply of building materials amounted to "sale" and the company was a "dealer" for the purposes of sales tax under the Orissa Sales Tax Act, 1947. It was held that the supply constituted "sale". The company supplied the building material to the contractors at agreed rates. There was concurrence of the four elements which constitute a sale : (1) the parties were competent to contract; (2) they had mutually assented to the term of contract; (3) absolute property in building materials was agreed to be transferred to the contractors; and (4) price was agreed to be adjusted against the dues under the contract. It was also observed that no serious argument was advanced in that case that the supply of building material belonging to the company for an agreed price did not constitute a sale. After discussing all the case laws on the subject, their Lordships came to the conclusion that-this supply made by M/s. Hindustan Steel Ltd. constitutes "sale". Learned counsel for the petitioner submitted that in fact no serious attempt was made in that case to test whether the four elements aforementioned amount to "sale" at all or not. In fact, it was conceded; therefore, the honourable apex Court did not dilate on the subject any further and it cannot be said that they are the decisive factors for constituting sale. It is true that one line observation made by the apex Court that no serious argument was advanced that the supply of materials did not constitute the sale; but nonetheless, it appears that the apex Court, after going through the contract and taking into consideration the common factors laid down that these four ingredients would constitute the sale. It is true that one line observation made by the apex Court that no serious argument was advanced that the supply of materials did not constitute the sale; but nonetheless, it appears that the apex Court, after going through the contract and taking into consideration the common factors laid down that these four ingredients would constitute the sale. The definition of "sale" as given in the Sales Tax Act, 1958, which was prevalent at that time, reads as under : "'Sale' with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or for other valuable consideration and includes a transfer of property in goods involved in the supply or distribution of goods by a society or club or any association to its members, but does not include a mortgage, hypothecation charge or pledge, and the word 'purchase' shall be construed accordingly. Explanation. - ............" As per definition, transfer of property in goods for cash or deferred payment or for any other valuable consideration and includes a transfer of property in goods involved in the supply or distribution of goods by a society or club or any association to its members except mortgage, hypothecation, charge or pledge. In the background of the definition of "sale" above mentioned, which was pari materia with that of Orissa Sales Tax Act, their Lordships have taken out the four ingredients to constitute a sale. This case further came up for consideration before the apex Court in the case of Goel & Co. v. Sales Tax Officer [1989] 72 STC 368 wherein their Lordships also examined clause (10) of the contract which was entered between Central Public Works Department and the contractor for construction of foodgrain godowns and ancillary buildings at Rajnandgaon. Referring to the decision in the case of Hindustan Steel Ltd. [1970] 25 STC 211 (SC) with reference to clause (10) of the contract, their Lordships held that in the present case also, supply made by the Central P.W.D. to the contractor amounts to sale. Referring to the decision in the case of Hindustan Steel Ltd. [1970] 25 STC 211 (SC) with reference to clause (10) of the contract, their Lordships held that in the present case also, supply made by the Central P.W.D. to the contractor amounts to sale. Their Lordships also referred to another decision of the apex Court in the case of State of Himachal Pradesh v. Associated Hotels of India Ltd. [1972] 29 STC 474 and in the case of Brij Rhushan Lal Parduman Kumar v. Commissioner of Income-tax [1978] 115 ITR 524 held as under : "Therefore, from the above decisions it follows that in order to be sale taxable to duty, not only the property in the goods should pass from the contractor to the Government, or the appellant in this case but there should be an independent contract-separate and distinct-apart from mere passing of the property where a party purchases or procures goods from the Government. Merely passing of property from the contractor to the Government would not suffice. There must be sale of goods. The primary object of the bargain judged in its entirety must be viewed. In the instant case, clause (10) is significant as we have set out hereinbefore. For the purpose of performance, the contractor was bound to procure materials. But in order to ensure that quality materials are procured, the PWD undertook to supply such materials and stores as from time to time required by the contractor to be used for the purpose of performing the contract only. The value of such quantity of materials and stores so supplied was specified at a rate and got set-off or deducted from any sum due or to become due thereafter to the contractor. Mr. Virmani, appearing for the appellant, submitted before us that in the instant case, there was no such independent and separate sale. But we are unable to accept. Though, in a transaction of this type there is no inherent sale; a sale inheres from the transaction. Clause (10) read in the proper light indicates that position." 9. Shri Shrivastava, learned counsel for the petitioner has taken us to clause 15(b) and clause (10) appearing in the case of Goel & Co. [1989] 72 STC 368 (SC) and submitted that this case is distinguishable as the nature of contract in both the cases is different. Clause (10) read in the proper light indicates that position." 9. Shri Shrivastava, learned counsel for the petitioner has taken us to clause 15(b) and clause (10) appearing in the case of Goel & Co. [1989] 72 STC 368 (SC) and submitted that this case is distinguishable as the nature of contract in both the cases is different. It is submitted that in the case of Goel & Co. [1989] 72 STC 368 (SC), cement, iron and steel were necessarily to be taken by the contractor. In the present case, under clause 15(b), the contractor was under obligation to take this material from the corporation and the contractor was bound to return the unused material, price issue was confirmed and no escalation was allowed and for such unreturned surplus materials, price was to be recovered at double the issue rates. The goods were sold at the fixed rates which were lower than the purchase rates. All the goods which were issued to the contractor were like a bailee and therefore, these distinctive features make out a distinguishable case from Goel & Company's case [1989] 72 STC 368 (SC). It may be relevant to produce clause (10) of the agreement in the case of Goel & Co. [1989] 72 STC 368 (SC) which reads as under : "If the specification or Schedule of terms provides for the use of any special description of materials to be supplied from Engineer-in-Charge's stores, or if it is required that the contractor shall use certain stores to be provided by the Engineer-in-Charge as shown in the Schedule of materials hereto annexed, the contractor shall be bound to procure and shall be supplied such material and stores as are from time to time required to be used by him for the purposes of the contract only, and the value of the full quantity of materials and stores to supply at the rates specified in the said Schedule of materials may be set-off or deducted from any sums then due or thereafter to become due to the contractor under the contract or otherwise, or against or from the security deposit, or the proceeds or sale thereof if the same is held in Government securities, the same or a sufficient portion thereof being in this case sold for the purpose. All materials so supplied to the contractor shall remain the absolute property of Government and shall not be removed on any account from the site of the work, and shall be at all times open to inspection by the Engineer-in-Charge. Any such materials remaining unused and in perfectly good condition at the time of the completion or determination of the contract shall be returned to the Engineer-in-Charge at a place directed by him, if by a notice in writing under his hand he shall so require; but the contractor shall not be entitled to return any such materials unless with such consent and shall have no claim for compensation on account of any such materials so supplied to him as aforesaid not being used by him or for any wastage in or damage to any such materials. Provided that the contractor shall in no case be entitled to any compensation or damages on account of any delay in supply or non-supply thereof all or any such materials and stores. Provided further that the contractor shall be bound to execute the entire work if the materials are supplied by the Government within the scheduled time for completion, of the work plus 50 per cent thereof (scheduled time plus 6 months if the time of completion of the work exceeds 12 months) but if a part only of the materials has been supplied within the aforesaid period, then the contractor shall be bound to do so much of the work as may be possible with the materials and stores supplied in the aforesaid period. For the completion of the rest of the work, the contractor shall be entitled to such extension of time as may be determined by the Engineer-in-Charge whose decision in this regard shall be final." This clause (10) and clause 15(b) as reproduced above are pari materia except that there is change of expression of words here and there. If we read the whole of the clause (10) and clause 15(b), then it will emerge that there is not much of difference in substance. Therefore, in the case of Goel & Co. [1989] 72 STC 368 (SC) their Lordships have clearly mentioned that what is to be seen is the whole of the contract and not piecemeal here and there. Therefore, in the case of Goel & Co. [1989] 72 STC 368 (SC) their Lordships have clearly mentioned that what is to be seen is the whole of the contract and not piecemeal here and there. A bare perusal of clause 15(b) and clause (10) above quoted makes it clear that both the contracts by and large are of the same nature and the distinguishing features pointed out by learned counsel Shri Shrivastava are not of such distinguishing nature which can take out the case of the petitioner different than the one decided by the apex Court in the case of Goel & Co. [1989] 72 STC 368 (SC). In fact the idea behind supply of iron and steel, cement by the petitioner-company was to ensure quality product, therefore, the petitioner-corporation had undertaken supply to the contractor so that there is a least possibility of any poor material being used by the contractor. In the case of Goel & Co. [1989] 72 STC 368 (SC) similar provision was there that the petitioner therein had to take these items from the C.P.W.D. After giving our serious consideration to both the clauses abovequoted, we are of the opinion that both the clauses are almost identical in nature and there is not much difference so as to distinguish the present case from the purview of the law laid down in the case of Goel & Co. [1989] 72 STC 368 (SC). 10. Similar question came up before this Court also in the case of Hindustan Steel Ltd. v. Commissioner of Sales Tax [1996] 101 STC 282 wherein similar clause 51(1) of the general conditions of the contract was there and in that also, the Hindustan Steel Ltd. undertook to supply the steel and cement to the contractor for construction of the plant. Clause 51(1) of that agreement also reads almost identically as the clause (1) of the case of Goel & Co. Clause 51(1) of that agreement also reads almost identically as the clause (1) of the case of Goel & Co. [1989] 72 STC 368 (SC) and clause 15(b) of the case of the present petitioner-corporation : "51(1) If the specification or estimate of the work provides for the use of any special description of materials to be supplied from the Engineer's store, or if it is required that the contractor shall use certain stores to be provided by the Engineer, the contractor shall be supplied with such materials and stores as required from time to time to be used by him for the purpose of the contract only and the value of the full quantity of materials and stores so supplied at the rates specified in the said schedule or memorandum may be set off or deducted from any sums then due. All materials supplied to the contractor shall remain the absolute property of the employer, and shall not on any account be removed from the site of the work, and shall at all times be open to inspection by the Engineer. Any such materials unused and in perfectly good condition at the time of the completion or determination of the contract shall be returned to the Engineer's store, if by a notice in writing under his hand he shall so require; but the contractor shall not be entitled to return any such materials unless with such consent, and shall have no claim for compensation on account of any such materials so supplied to him as aforesaid being unused by him, or for any wastage in or damage to any such materials." In this case also, the contractor was under obligation to take these materials from the store of the Engineer and the value of that material is to be deducted from the bills of the contractor. It was also stipulated that all the materials supplied to the contractor shall remain exclusive property of the Hindustan Steel Limited and unused material in a good condition at the time of implementation of the contract shall stand restored. By and large these were the terms of contract of the Hindustan Steel Limited. This Court in the said case held that it amounts to sale and the objection of the petitioner was overruled. 11. By and large these were the terms of contract of the Hindustan Steel Limited. This Court in the said case held that it amounts to sale and the objection of the petitioner was overruled. 11. Shri Shrivastava, learned counsel for the petitioner invited our attention to two decisions of the Allahabad High Court in the cases of Indian Farmers Fertiliser Co-operative Limited v. Commissioner of Sales Tax [1997] 106 STC 479 and Oil & Natural Gas Commission v. Commissioner of Sales Tax [1996] 102 STC 466 [App.] and submitted that the learned single Judge of Allahabad High Court in the case of Indian Farmers Fertiliser Co-operative Limited [1997] 106 STC 479 examined the terms of the contract and distinguished and held that the case in hand was not covered by the ratio laid down in Goel & Co.'s case [1989] 72 STC 368 (SC). This depends on terms and conditions of each agreement. In the said case, the learned single Judge of Allahabad High Court examined the terms of contract and found that as per the terms of the contract, the case of the Indian Farmers Fertiliser Co-operative Limited does not fall within the ratio laid down in the case of Goel & Co. [1989] 72 STC 368 (SC). Similarly in the case of Oil & Natural Gas Commission [1996] 102 STC 466 [App.] the learned single Judge of Allahabad High Court after examining-the terms and conditions of the agreement held that this case was not covered by the ratio laid down in Goel & Co.'s case [1989] 72 STC 368 (SC). We have examined the present case with reference to clause 15(b) of the agreement and we find that clause 15(b) is also pari materia to clause (10) in the case of Goel & Co. [1989] 72 STC 368 (SC). Therefore, we hold that the supply made by the petitioner-corporation to the contractor of the goods iron, steel and cement amounts to sale and they are liable to sales tax. 12. In view of above discussion, we are of the opinion that the approach of the Assistant Commissioner of Sales Tax as well as the Additional Commissioner of Sales Tax is well founded. There is no merit in these petitions and the same are accordingly dismissed. There shall be no order as to cost. Security amount if any be refunded to the petitioner. Petitions dismissed.