VALLINAYAGAM, J. ( 1 ) THE petitioner was subjected to tax on the turnover of rs. 5,18,425/- which was considered as stone ballast. The petitioner has entered into two types of contracts with railway authorities. One was for stacking the stone on the side of the railway line which was scattered and the only work done was to collect and stack in accordance with the directions given. The second type of contract was to obtain the ballast stone from the quarries belonging to the railway authorities on which royalty was paid. The Assessing Authority found that out of the total receipt of amount from the railway rs. 8,98,987, the net collection of ballast from quarry is at rs. 4,14,740/ -. The Assessing Authority added 25% to this figure and levied tax. The Appellate Authority vide its order dated 28. 3. 95 considered the contract as that of works contract and not for supply of stone. The appeal was allowed. The revising authority under section 22-A (1) reversed the order of the first Appellate Authority and came to the conclusion that it is the sale. In this appeal, the order of the revising authority have been challenged. ( 2 ) LEARNED Counsel for the appellant relied on the decision given in the case of the COMMISSIONER OF SALE TAX, M. P. vs purushottam PREMJI1. In the contract the assessee was to remove from the railway premises of rejected ballast and the royalty, was to be paid to the State Government. It was found by the Apex court that the property in the ballast at all relevant times was with the railway and the ballast was never the property of the assessee and, therefore, there was not question of transfer of property by the assessee. The decision of CHANDRA BHAN GOSAIN vs THE state OF ORISSA AND OTHERS was also considered. ( 3 ) ON behalf of the revenue, reliance is placed on the judgment given in the case of COOCH BEHAR CONTRACTORS' association AND OTHERS vs STATE OF WEST BENGAL AND others, wherein it was considered that the royalty paid by the contractor to the Forest Department or Government for boulders, earth etc. , used in works contract have to be included in the contractual transfer price and cannot be deducted from the turnover. , used in works contract have to be included in the contractual transfer price and cannot be deducted from the turnover. ( 4 ) RELIANCE is also placed on the Full Bench decision of this Court in case of H. Y. JADHAV vs STATE OF KARNATAKA, where the contract was to supply jelly (ballast) to the railway with the condition that the jelly would be stacked in a particular manner before delivery would not amount to a contract for work or a composite contract for sale of goods and for work, but only amounts to a contract for sale. The view taken by this Court in STATE OF mysore vs S. R. BHIDE was distinguished. Andhra Pradesh High court in ANAMOLU SESHAGIRI RAO AND COMPANY AND others vs STATE OF ANDHRA PRADESH AND OTHERS, took a view that the contract for supplying the stacking ballast amounts to sale. This decision was also considered by the Full Bench of this court. ( 5 ) ARGUMENTS of both the learned Counsel for the parties are heard. ( 6 ) IN Chandra Bhan Gosain vs State of Orissa, the land was given free which was considered as transfer of property in earth to the assessee and the price thereof was considered to have been adjusted while quoting the rate of bricks to be supplied. Supply of bricks was considered as sale and it was observed that the intention of the parties in making the contract is that the chattels should be purchased and transferred as chattels for a consideration which was liable to tax. The essence of the contract was considered to be delivery of the bricks and the contract was for transfer of chattel quo chattel. Reference was made to the Benjamin on Sales (8th edition) Page 161 and Halsbury's Laws of England (3rd edition) Vol. 34 Page 6, ( 7 ) ACCORDING to the definition of sale, there must be transfer of property by the appellant to the railway. If the contract is merely for stacking the ballast on the side of the railway track, then it is pure and simple labour contract as the property does not pass to the assessee at any point of time. If the contract is merely for stacking the ballast on the side of the railway track, then it is pure and simple labour contract as the property does not pass to the assessee at any point of time. But if the ballast is to be collected from the quarry they may be belonging to the railway or others for which the royalty is paid then it will be considered to be the case of transfer of property by the assessee to the railway to that extent in respect of blast. The decision relied on by the learned Government advocate of the Full Bench of this Court has not dealt with the case where it was pure and simply stacking of stone ballast on the side of railway and which have scattered with lapse of time by use of railway lines for which only labour is put by the contractor in collecting and stacking and, therefore, no reliance can be placed on that decision. It is only in respect of those supplies where the assessee has to collect the stone ballast from a different source, may be the state Government quarry or may be railway quarry. While procuring the stone ballast the assessee has to make the payment of royalty which has to be considered as the purchase price of the assessee and, therefore, property in stone ballast vest with the assessee which is transferred when such stone ballast are stacked on the side of the railway line. The decision given in the case of Purushottam Premji has not examined the aspect as to whether the royalty paid is price or not which has been consequently considered by the Apex Court in the case of COOCH BEHAR CONTRACTORS' ASSOCIATION. ( 8 ) LEARNED Counsel for the assessee has pointed out that the entire figure on which the tax has been levied is not of such stone ballast which have been obtained from the quarries of railway. This is a factual matter and as such we consider it proper that the assessing authority may examine this aspect again and tax may not be levied on that part of the contract where the stacking is of the scattered stones nearby railway line by the assessee and only labour was put in collecting and stacking. This is a factual matter and as such we consider it proper that the assessing authority may examine this aspect again and tax may not be levied on that part of the contract where the stacking is of the scattered stones nearby railway line by the assessee and only labour was put in collecting and stacking. Tax could be levied only on that stone which has been procured from the quarries for which royalty was paid. We may also observe that procuring the raw material on payment or lesser payment i. e. , concessional payment is also a sale by the awarder to the contractor as has been held in series of decisions of Apex Court. The observation of Apex Court in CHANDRA bhan GOSAIN is also relevant that even if the material is supplied free, still there can be transfer of property by the contractor to the awarder. ( 9 ) APPEAL is partly allowed. --- *** --- .