JUDGMENT Amitava Roy, J. 1. The proposed deduction of tax at source under the Assam Value Added Tax Act, 2003 (hereafter referred to as, "the Act") by the Oil and Natural Gas Corporation (for short, hereafter referred to as, "the corporation") from the petitioner's entitlements under the contract for hiring of hydraulic cranes by it is under impeachment in the present series of proceedings at the instance of the contractors providing the machines. The quintessential features of the contract agreements and the legal issues centering the debate being inseverably identical permitting analogous adjudication, a common determination would suffice. The prolix rival pleas notwithstanding, the essential factual details for reference have been culled from the pleadings of W. P. (C). No. 5453 of 2009 and W. P. (C) No. 5456 of 2009. 2. I have heard Dr. A. K. Saraf, senior advocate for the petitioners, Dr. B. P. Todi, senior advocate for the corporation, Mr. D. Saikia, learned standing counsel, Finance Department, Government of Assam, for the Revenue and Mr. B. Sharma, learned Central Government standing counsel, for the Union of India. 3. The pleaded accounts of the parties in the fray are indispensable to appropriately comprehend the contentious arguments based thereon. The petitioners represent to be proprietorship firms carrying on business in various locations of the State and own hydraulic cranes with necessary licence and other testimonials to be legally, possessed thereof. In response to the notice inviting tenders (for short, hereafter referred to as, "the NIT") issued by the corporation for the hire of services of hydraulic cranes for carrying out its operations on stipulations as mentioned therein, the petitioners responded thereto and eventually individual contract agreements were executed between the parties June 22/23, 2009. Meanwhile the Act had been enforced on and from May 1, 2005 mandating imposition and collection of tax on sales and purchases of goods in the State of Assam and matters connected therewith and incidental thereto. 4. According to the petitioners, in terms of the clauses of the contracts, the transactions are evidently not of sale as envisaged under the Act or within the meaning of Clause (29A)(d) of article 366 of the Constitution of India and, therefore, no tax is payable by them. 4. According to the petitioners, in terms of the clauses of the contracts, the transactions are evidently not of sale as envisaged under the Act or within the meaning of Clause (29A)(d) of article 366 of the Constitution of India and, therefore, no tax is payable by them. Inspite thereof, the corporation basing on the decision of this Court in W. A. No. 138 of 2007 and other connected cases rendered on November 25, 2009 (Dipak Nath v. Oil and Natural Gas Corporation Ltd. [2010] 31 VST 337) had informed them that tax under the Act for the instant contracts would be deducted at source construing the transactions to be those of lease. The petitioners have asserted that the contracts herein are distinctly different from those involved in the aforementioned proceedings decided by this Court, and service tax leviable under the Finance Act, 1994, was only contemplated by the parties. 5. Moreover the present contract agreements in categorical terms envisage that the transactions would not be by way of lease or transfer of the right to use the vehicle/equipments. As the express intention of the parties is for providing and availing of the services of the hydraulic cranes which do not conceive of any transfer of right to use the same, the proposed deduction of tax under the Act is constitutionally as well as legally impermissible. The petitioners in the alternative have also averred that even if the contracts could be perceived to evidence an element of transfer of the right to use of the cranes, as those are of composite nature also inclusive of the service component, the same do not admit of splitting under article 366(29A) and, therefore, the sale segment thereof cannot be made exigible to tax under the Act. 6. 6. The corporation in its affidavit while expressing nescience about the payment of service tax by the contractors to the Central Government for the contracts in question has maintained that the agreements involved and the transactions embodied therein are exactly the same as those analysed with by this Court in W. A. No. 138 of 2007 (Dipak Nath v. Oil and Natural Gas Corporation Ltd. [2010] 31 VST 337) and matters connected therewith and that, therefore, it has no option but to deduct the tax at source while making the petitioners' bills lest it would be subjected to penalty leviable under Sub-section (12) of Section 47 of the Act. 7. The Revenue in its counter affirmed by the Joint Commissioner of Taxes, Assam, however, has insisted that a bare perusal of the contract agreements demonstrates the transactions involving transfer of right to use the cranes in favour of the corporation, superficial trappings to the contrary notwithstanding and that therefore the petitioners are liable to pay tax under the Act. While contending that the contract agreements proclaim a clear dominion of the corporation over the cranes during the subsistence of the contract as an unmistakable index of transfer of right to use thereof by the contractors, the answering respondent has dismissed the recital to the contrary as inconsequential being a delusive representation to avoid the tax liability. It has been maintained that the petitioners' claim of payment of service tax in the transactions per se would not be extinctive of the other discernible attributes of sale and that in the facts and circumstances of the case, having regard to the scope and ambit of the Act, the proposed deduction of tax thereunder is valid in law. 8. The Union of India in its affidavit while reinforcing the petitioners' plea of providing service through their cranes under the contract agreements and the consequent inessentiality to pay tax under the Act, has contended that they being engaged in business auxiliary service up to May 15, 2008 under the Finance Act, 1994 and thereafter, any supply of tangible goods service is subject to service tax. According to this answering respondent, from the scope of the work in the contracts, the petitioners though are liable to pay service tax with effect from July 1, 2003 under Section 65(19) of the Finance Act, 1994, under the category "business auxiliary service" they have not done so. According to this answering respondent, from the scope of the work in the contracts, the petitioners though are liable to pay service tax with effect from July 1, 2003 under Section 65(19) of the Finance Act, 1994, under the category "business auxiliary service" they have not done so. It has been maintained that notwithstanding the fact that the supply of tangible goods services have been effected with effect from May 16, 2001 and consequentially they are liable to pay service tax from July 1, 2003 under business auxiliary service the petitioners have omitted to do so for which meanwhile a show-cause notice on October 15, 2009 had been issued to them demanding an amount of Rs. 21,64,769. The Union of India, therefore, has refuted the petitioners' claim of paying service tax. 9. In the above backdrop of pleadings, Dr. Saraf has emphatically urged that as the contract agreements read as a whole would unequivocally attest that the transactions contemplated therein are out and out for hiring the services of the cranes with no element of transfer of right to use thereof to draw the same within the purview of sale and or lease under the Act, the proposed deduction of tax is ex facie illegal and unauthorised. Referring to various clauses of the contract agreements bearing on the nature and extent of the use of the cranes, the period of service to be rendered, the responsibility of maintenance thereof as well as the unalienable control of the device by the contractors, the learned senior counsel has argued that those clearly demonstrate against the lease or transfer of right to use of the machines. While contending that mere position or the location of cranes in course of their engagement in the oil fields of the corporation per se would not signify the lease thereof or transfer of right of use of the same, Dr. Saraf has maintained that having regard to the essential features of the contract agreements, even if service as well as lease components thereof can be comprehended, no bifurcation of the lease/sale segment is permissible to make it exigible to tax under the Act. According to the learned senior counsel, such a segregation in the case of a composite contract comprised of sale and service constituents is permissible only in cases envisaged in Clauses (b) and (f) of article366(29A) of the Constitution of India. According to the learned senior counsel, such a segregation in the case of a composite contract comprised of sale and service constituents is permissible only in cases envisaged in Clauses (b) and (f) of article366(29A) of the Constitution of India. He has thus pleaded that for the application of Clause (d) thereunder the transfer of right to use goods should be in absolute terms encompassing the contract as a whole. In case such a transfer of right to use of goods is a unit of a composite contract, Clause (d) cannot be invoked and the same cannot be set apart to enable the State to levy tax thereon. As in the case in hand, the contract agreements envisage payment of service tax by the contractors, the parties consciously construed the transactions to be one of hiring of the service of the cranes and, therefore, on that count as well sales tax on the cranes is not payable, he urged. Dr. Saraf further argued that the contracts involved in the present proceedings are distinguishably different from those scrutinised by this Court in W. A. No. 138 of 2007 (Dipak Nath v. Oil and Natural Gas Corporation Ltd.[2010] 31 VST 337) and, therefore, the analogy of that decision being inapplicable to the facts and circumstances herein, the plea of the corporation and the Revenue based thereon is wholly misconceived. The learned senior counsel has persuasively insisted that apart from the obvious distinctive attributes of the two sets of contracts, the aspects of payment of service tax and the indivisibility of a composite contract, under article 366(29A)(d) did not figure for adjudication in the aforementioned writ appeals and, therefore, the verdict rendered therein has no bearing on the present impugnment. Further the principle of res judicata is inapplicable in taxation lis, he urged. While pointing out that the petitioners' plea that the contracts involved were of hiring of the service of the cranes had remained uncontroverted by the corporation in its counter, Dr. Saraf has contended that mere possession sans custody and control is of no consequence and that, therefore, having regard to the various clauses of the contract, it by no means can be construed that the same envisaged any transfer of right to use thereof. Saraf has contended that mere possession sans custody and control is of no consequence and that, therefore, having regard to the various clauses of the contract, it by no means can be construed that the same envisaged any transfer of right to use thereof. Referring to Section 65(105)(zzzzj) of the Finance Act, 1994, the learned senior counsel has insisted that it being apparent from the contracts that the parties had consciously agreed on the payment of service tax only, levy under the Act, was clearly not in their comprehension. To reinforce his arguments Dr. Saraf has placed reliance on the decision of the apex courts in Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 VST 95 : [2006] 145 STC 91 : [2006] 3 SCC 1 and of the Delhi High Court in Commissioner, VAT, Trade and Taxes Department v. International Travel House Ltd. [2009] 25 VST 653. 10. Dr. Todi for the corporation abiding by its pleaded stand has reiterated that the contracts in question being similar to those involved in W. A. No. 138 of 2007 (Dipak Nath v. Oil and Natural Gas Corporation Ltd. [2010] 31 VST 337) are construable as lease and, therefore, it being obliged under Section47 of the Act to deduct the tax at source thereunder, its action cannot be faulted in law. 11. Mr. Saikia for the Revenue on a detailed reference to the various clauses of the contract agreements has persuasively insisted that the subject-matter thereof is evidently the cranes and not the service to be rendered thereby and, therefore, as a transfer of the right to use thereof is conspicuous, the proposed deduction of tax under the Act is valid in all respects. According to the learned standing counsel, the clauses of the contracts demonstrate with particularity the exclusive dominion of the corporation over the cranes and the employees of the contractors during the subsistence thereof which testify the transfer of right to use of the machines to it. As the hire rent under the contracts is payable for the cranes irrespective of the use thereof, the concept of hiring of the same for the services only is misconceived, he urged. According to Mr. Saikia, the right reserved to the corporation to get the unexecuted work completed by other agencies evinces its prerogative and control over the transactions. As the hire rent under the contracts is payable for the cranes irrespective of the use thereof, the concept of hiring of the same for the services only is misconceived, he urged. According to Mr. Saikia, the right reserved to the corporation to get the unexecuted work completed by other agencies evinces its prerogative and control over the transactions. While emphasising that the contractors under the contract are not entitled to withdraw the cranes once placed with the corporation, Mr. Saikia has insisted that the contracts as involved in W. A. No. 138 of 2007 (Dipak Nath v. Oil and Natural Gas Corporation Ltd. [2010] 31 VST 337) are exactly similar to those in hand and, therefore, the decision rendered therein is final and binding. Further the stand of the corporation in this regard is also decisive, he urged. 12. According to him, viewed in the context of the definition of "taxable service" as provided in Section 65(105)(zzzzj) read with the notification dated February 29, 2008, sales tax is clearly payable in the face of the effective control of the cranes with the corporation which denotes transfer of right of user thereof. The learned standing counsel however agreed that the contract agreements in question are indivisible and that these do not admit of the concept of dominant intention theory but are within the purview of Clause (d) of article 366(29A). As the requisites of sale as contemplated in law are conspicuously present in the transactions in hand the State is competent to levy sales tax under the Act, he urged. Mr. Saikia to buttress his submissions has placed reliance on the decisions of the apex court in Federation of Hotel and Restaurant Association of India v. Union of India [1989] 74 STC 102 (SC) : [1989] 3 SCC 634 and in Bharat Sanchar Nigam Ltd. v. Union of India [2006] 3 VST 95 : [2006] 145 STC 91 : [2006] 3 SCC 1. 13. The learned Central Government standing counsel has argued that as the petitioners have been registered as service providers under Section 69 of the Finance Act, 1994, in terms of the circular/letter DOF No. 334/1/2008/TRU dated February 29, 2008, service tax is payable as no transfer of right to use of the cranes in the contracts involved is deductible. 13. The learned Central Government standing counsel has argued that as the petitioners have been registered as service providers under Section 69 of the Finance Act, 1994, in terms of the circular/letter DOF No. 334/1/2008/TRU dated February 29, 2008, service tax is payable as no transfer of right to use of the cranes in the contracts involved is deductible. He however contended that the petitioners though liable to pay service tax on and from July 1, 2003 have not done so for which a proceeding has already been initiated. 14. The competing pleadings and the submissions have received the due consideration of this Court. The legality and/or validity of the proposed deduction of tax under the Act would essentially be contingent on the interpretation of the contract agreements involved. The transactions evidenced thereby if exude a transfer of the right by the petitioners to use the manned cranes only with no service element, those would tantamount to lease/sale under the enactment and would be exigible to tax thereunder under article 366(29A)(d) of the Constitution of India. 15. Whereas, the petitioners contend that the contract agreements testify "taxable service" as defined in Section 65(105)(zzzzj) of the Finance Act, 1994 without transferring the right of possession and effective control of the cranes involved, the Revenue and the corporation plead that an overall view thereof would unambiguously proclaim a deemed sale as contemplated by the Act and the above constitutional provision. The litmus test to unravel the conundrum is an indispensable analysis of the contract agreements engrafting the intention of the parties thereto. Decisive significantly herein is the Revenue's concurrence on the indivisibility of the contract agreements if ascertained to be an amalgam of sale and service segments. 16. For the sake of brevity and certitude the contract agreement in W. P. (C) No. 5453 of 2009 would be referred to. As all the contract agreements share a common paradigm, the reference to any one would adequately depict the quintessence thereof, sans any prejudice to the parties. 16. For the sake of brevity and certitude the contract agreement in W. P. (C) No. 5453 of 2009 would be referred to. As all the contract agreements share a common paradigm, the reference to any one would adequately depict the quintessence thereof, sans any prejudice to the parties. Noticeably, the contracts are post May 16, 2008 with effect from which Clause (zzzzj) was inserted in Section 65(105) by the Finance Act, 2008 bringing within the purview of taxable service, the service provided or to be provided to any person by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use without transferring the right of possession and effective control of such machinery equipment and appliances. The opening recital of the contract agreements discloses that the same were for hiring of hydraulic cranes for carrying out the corporation's operations in conformity with the specifications as set forth in the scope of works enumerated therein. The entrustment of the enterprise was in view of the assurance of the contractors of their necessary experience for carrying out such operations by offering the required service as per the corporation's tender to that effect. A few clauses of the common contract agreement with the above preface need be extracted for ready reference and obvious insight into the contracting minds: Section A 1.3 Site Shall mean the place in which the operations/services are to be carried out or places approved by the ONGC for the purposes of the contract together with any other places designated in the contract as forming part of the site. 1.13 Works/operations Shall mean all work to be performed by the contractor as specified in the scope of work under this contract. 1.15 Mobilisation Shall mean rendering the equipment fully manned and equipped as per contract and ready to begin work at site designated by ONGC after on hire survey and ONGC's acceptance thereafter. The date and time of ONGC's acceptance of on hire survey will be treated as the date and time of mobilisation. 1.25 Crane Shall mean a truck mounted/all terrain hydraulic crane in good working condition with its certified lifting capacity of minimum 40 MT for type II crane and minimum 20 MT for type III crane at an operating radius of three metres and meeting the other technical specifications given herein. 1.25 Crane Shall mean a truck mounted/all terrain hydraulic crane in good working condition with its certified lifting capacity of minimum 40 MT for type II crane and minimum 20 MT for type III crane at an operating radius of three metres and meeting the other technical specifications given herein. It should comply with Motor Vehicle Act as applicable and in possession of valid documents as applicable such as certificate of registration, fitness, insurance, test certificate, etc. 1.26 Crew Shall mean the staff required for operation of crane such as drivers, crane operations, riggers, stingers, handymen, khalasi, etc., provided by the contractor. 1.29 Working day 'Working day' normally starts at seven hours, or the time given by the authorized officer of the ONGC and shall normally extend for a period of 10(ten) hours including any spill over time necessitated for the continuity of the operation. 1.30 Operational time Shall mean the time spent by the crane at the site of work in actual operation, i.e., loading, unloading and movement required for positioning including waiting time on duty. 1.31 Operational charges 'Operational charges' are the charges mentioned below : Operation time charges per working day-Per day hire charges as per schedule of rates. Operational time charges per working hour : Operational time charges per working day/10 hours. (pro rata hourly rate). 1.34 Commencement of contract period 'Commencement of contract period' means the date on which the crane, fully equipped with crew and in perfect working condition has been placed at the disposal of ONGC at Sivasagar or any other appointed place in the Eastern Region of ONGC (refer clause 6 of this contract agreement). 3.0 Duration of the contract This contract shall remain valid for a period of three years from the actual date of mobilisation (the date when the crane is deployed for ONGC duty) as per the rates given at annexure A. The date of commencement of contract for each crane for reckoning its period of contract shall be date on which the said crane under the contract is deployed for duty of the ONGC. 6.4 Assignment The contractor shall not, save with the previous consent in writing of the ONGC, sublet/sub-contract, transfer or assign the contract or any part thereof in any manner whatsoever. 6.4 Assignment The contractor shall not, save with the previous consent in writing of the ONGC, sublet/sub-contract, transfer or assign the contract or any part thereof in any manner whatsoever. However, such consent shall not relieve the contractor from any obligation, duty or responsibility under the contract and contractor shall be fully responsible for the services hereunder and for the execution and performance of the contract. 7.1 ONGC shall pay to contractor for the services, to be provided by the contractor as per the scope of work as per the Schedule of rates attached as annexure A. The rates payable shall be firm during the entire contract period. 8.1 Claims Contractor agrees to pay all claims, taxes and fees for equipment, labour, materials, services and supplies to be furnished by it hereunder and agrees to allow no lien or charge resulting from such claims to be fixed upon any property of ONGC. ONGC may, at its option, pay and discharge any liens or overdue charges for contractor's equipment, labour, materials, services and supplies under this contract and may thereupon deduct the amount or amounts so paid from any sum due, or thereafter become due, to contractor hereunder. Taxes Contractor, unless specified otherwise in the contract, shall bear all tax liabilities, duties, Government, levies, etc., including service tax, customs duty, corporate and personnel taxes levied or imposed on the contractor on account of payments received by it from the corporation for the work done under this contract. It shall be the responsibility of the contractor to submit to the concerned Indian authorities, the returns and all other concerned documents required for this purpose and to comply in all respects with the requirements of the laws in this regard, in time. 9.0 Performance The contractor shall undertake to perform all services under this contract with all responsible skill, diligence and care in accordance with sound industry practice to the satisfaction of the ONGC and accept full responsibility for the satisfactory quality of such services as performed by them. Any defect, deficiencies noticed in the contractor's service will be promptly remedied by the contractor within 10 days upon the receipt of written notice from ONGC to improve their performance failing which ONGC may terminate the contract by giving the contractor 30 (thirty) days written notice. Any defect, deficiencies noticed in the contractor's service will be promptly remedied by the contractor within 10 days upon the receipt of written notice from ONGC to improve their performance failing which ONGC may terminate the contract by giving the contractor 30 (thirty) days written notice. 10.0 Performance bond The contractor has submitted security deposit/performance bond vide BG No. 191/09 dated June 9, 2009 for Rs. 7,35,000 from Canara Bank, Sivasagar Branch, Hospital Road, Sivasagar, valid up to November 30, 2012. The security deposit/performance guarantee is to secure satisfactory performance and execution/completion of all jobs by the contractor against the said contract. The performance bond/bank guarantee shall be kept valid for 60 days beyond the expiry period of the contract. In absence of above validity period of performance bond (back guarantee), payment of all dues to the contract up to the limit of SD shall be returned as part of the SD, which shall be refunded after receipt of requisite bank guarantee. The security deposit is refundable only after successful completion of work/contract, without any interest thereon and after the adjustment of any dues of the ONGC, if so arises during the execution/currency of the contract. In the event contractor fails to honour any of the commitments entered into under this agreement or in the event of termination of the contract under provisions of integrity pact, and/or in respect of any amount due from the contractor to the ONGC, the ONGC shall have unconditional option under the guarantee to invoke the above bank guarantee and claim the amount from the bank. The bank shall be obliged to pay the amount to the ONGC on demand. 11.0 Discipline Contractor shall carry out operations hereunder with due diligence and in a safe and workman like manner according to good international oilfield practice. Contractor shall maintain strict discipline and good contract among its employees and its sub-contractor's employees and shall abide by and conform to all rules and regulations promulgated by the ONGC governing the operations. Should ONGC feel that the conduct or any of contractor/sub-contractor's employees is detrimental to ONGC's interest, the ONGC shall have the unqualified right to request for the removal of such employee either for incompetence, unreliability, misbehaviour, security reasons, etc., while on or off the job. The contractor shall comply with any such request to remove such personnel at contractor's expense unconditionally. The contractor shall comply with any such request to remove such personnel at contractor's expense unconditionally. The contractor will remove such personnel at contractor's expense unconditionally. The contractor will be allowed a maximum of... Working days to replace the person by competent qualified person at contractor's cost. 12.0 Safety and labour laws Contractor shall comply with the provision of all laws including labour laws, rules, regulations and notifications issued thereunder from time to time. All safety and labour laws enforced by statutory agencies and by ONGC shall be applicable in the performance of this contract and contractor shall abide by these laws. Contractor shall take all measures necessary or proper to protect the personnel, work and facilities and shall observe all reasonable safety rules and instructions. No smoking shall be permitted outside the living quarters, and welding jobs will be carried out with full safety precautions. ONGC's employee also shall comply with safety procedures/polity. The contractor shall report as soon as possible any evidence which may indicate or is likely to lead to an abnormal or dangerous situation and shall take all necessary emergency control steps to avoid such abnormal situations. 15.0 Insurance Contractor shall, at his own expense arrange appropriate insurance to cover all risks assumed by the contractor under this contract in respect of its personnel deputed under this contract as well as contractor's equipment tools and any other belongings of the contractor or their personnel during the entire period of their engagement in connection with this contract. ONGC will have no liability on this account. 16.1 Indemnity by contractor Unless otherwise specified elsewhere in this contract, contractor shall indemnify and keep indemnified ONGC, its contractors (other than the contractor) and/or sub-contractors and its/their employees from all actions, proceedings suits, claims, demands, liabilities, damages, losses, costs, charges, expenses (including without limitation, wreck or debris, removal costs, where wreck or debris removal is ordered by a competent authority) judgments and fines arising out of or in the course of or caused by the execution of work under the contract or other obligations hereunder directly or indirectly associated herewith and/or arising from: 17.4 Termination for unsatisfactory performance If the ONGC considers that the performance of the contractor is unsatisfactory or, not up to the expected standard, the ONGC shall notify the contractor in writing and specify in detail the cause of such dissatisfaction. The ONGC shall have the option to terminate this agreement by giving 30 days notice in writing to the contractor, if, contractor fails to comply with the requisitions contained in the said written notice issued by the ONGC. 31.0 Independent contractor status The contractor shall act as an independent contractor performing the contract. The contract does not create any agency, partnership, joint ventures or joint relationship between the parties. Subject to all compliance with the contract the contractor shall be solely responsible for the manner in which works are performed. All employees, representatives or sub-contractors engaged by the contractor in performing the contract shall be under the complete control of the contractor and shall not be deemed to be employees of the ONGC and nothing contained in the contract or in any sub-contract awarded by the contractor shall be construed to create any contractual relationship between any such employees or representative or subcontractor and the ONGC. Contractors shall be responsible for the acts, defaults or negligence of the contractor, his agencies, servant or workman. Section B 1. Scope of work The services of the manned (driver/operator/slinger/khalasi, etc., as the case may be) crane (type of crane to be given) as per technical specifications given herein or a vehicle/equipment or equivalent technical specifications and acceptable to ONGC along with the necessary accessories with valid permits/licences, insurance, etc., sufficient fuel in well maintained condition and fulfilling other pre-requisites should be available for performing the duties as advised by ONGC, at the appointed time and place, throughout the contract period not by way of lease or transfer of rights for use of the vehicle/equipment by the contractor to ONGC The work under this contract shall include but not limited to dismantling/erection of deep drilling rigs/work over rigs besides loading/unloading works of heavy drilling/producing equipments, like tubulars, bunk houses, store houses of odd size and all connected rig materials from or into trailers/trucks/railway wagons besides any other materials handing job as may be assigned from time to time by the authorized representative of ONGC at various points/sites (slushy)/installations, etc. The area of operation shall normally be in connection with the activities of Assam asset of ONGC or anywhere as per requirement of ONGC in and around Sivasagar, Jorhat, Dibrugarh Districts, Assam. The area of operation shall normally be in connection with the activities of Assam asset of ONGC or anywhere as per requirement of ONGC in and around Sivasagar, Jorhat, Dibrugarh Districts, Assam. 2.3 Lifting tickles The contractor shall have to provide necessary numbers of slings, hooks, dunnage material, other expedient for loading/unloading, etc., to ensure prompt and efficient operations in slushy and difficult oil field conditions by the crane, as per the requirement of the operation to attain an optimum use of crane. He shall also maintain at all time the crane in perfect working condition for the rated capacity and designed efficiency during the period of contract with following minimum Nos. of slings/hooks/dunnage materials. 3. Placement of crane 3.1. Contractor shall mobilize the offered crane(s) within 150 days of issue of fax order/NOA/LOI. 3.2 The crane shall be brought at the place to be nominated by ONGC at the commencement date and taken back on the conclusion/termination of the contract or rejection/non-acceptance of the crane (s) entirely at contractor(s) cost and ONGC shall bear no cost and will not be held responsible for such transportation. 4. Inspection 4.1 The crane offered by the contactor shall be inspected/documents verified for sale operations and meeting requirements as specified in this tender. The contractor shall be obliged to provide to the ONGC's representative advance intimation of not less than 15 days of readiness of the crane to carry out inspection at Sivasagar at suitable location. Inspection by ONGC is a contractual requirement and does not absolve the contractor for any defect/deficiency noticed in the crane after its arrival at site. The contractor shall be fully responsible for replacement/rectification of any deficiency noticed during inspection. In case inspection team finds that crane needs major repairs or the performance of the crane is not satisfactory, ONGC reserves the right to cancel the LOI. It is therefore suggested that the bidder must ensure that offered cranes meets the technical specification. 4.3 The crane(s) along with their original documents including the certificate at clause 4.2 shall be presented/produced for the inspection at the nominated place before putting it into operation/service of ONGC. The operation/service of crane along with its/their documents shall require the approval of the competent inspection authority for its deployment. 4.3 The crane(s) along with their original documents including the certificate at clause 4.2 shall be presented/produced for the inspection at the nominated place before putting it into operation/service of ONGC. The operation/service of crane along with its/their documents shall require the approval of the competent inspection authority for its deployment. Once a particular crane(s) and its documents have been approved for the service of ONGC, the same shall not be changed during the period of the contract, except on being defective and another crane of similar specifications offered as replacement. An intimation of such change shall be given to the authorized representative of ONGC for accepting such replacement. Such replacement shall require valid inspection certificate from the certifying agencies at clause 4.2 above and accepted by ONGC. 5. Award of contract 5.1 ONGC reserves the right to award whole or part of the work against this contract to any number of contractors at its sole discretion. 5.2 The contractors will have the right to claim any particular share in total work and ONGC shall have sole discretion for distribution of work amongst other contractors. 5.3 ONGC also reserves the right to award the contract for any or all the jobs under this contract to any other contractor(s) at any time during the currency of the contract without assigning any reason whatsoever. The contractor, shall not be entitled to any compensation whatsoever in such cases. 5.4 ONGC also reserves the right to get the work covered under the contract done departmentally or through some arrangement in part or in full at its sole discretion. The contractor shall not be entitled to any compensation in such cases. 6. Operational norms/conditions: 6.1 The employees of the contractor and/or its sub-contractor if any, although working for and at the discretion of the ONGC shall be and remain the employees of the contractor and such working arrangement shall in no way create or to be constructed to create an employer-employee relationship between such employees and ONGC. The contractor shall also undertake to replace any of their employee(s) who misbehave(s) with the employee(s) of ONGC or whose continuance may hamper the smooth operation under the contract. 6.2 The contractor shall do all acts and deeds as and when required and necessary for rendering services against this contract whether expressly provided in the contract or not and whether directly related or incidental thereto. 6.2 The contractor shall do all acts and deeds as and when required and necessary for rendering services against this contract whether expressly provided in the contract or not and whether directly related or incidental thereto. No extra charges shall be payable to the contractor for attending to all jobs and liaison work. 6.3 The crane is being hired for work in oil field conditions, which in addition to normal operations of oil fields include hazardous situation like blow out in wells. In such hazardous situation the crane shall have to work as per the direction of ONGC authorized representative and carry out the desired work within the hazardous zone. Refusal to work under these situations shall not be acceptable and may lead to de-hiring of the crane. 6.4 The contractor shall render the services mentioned herein the contract and other auxiliary and/or incidental services as may be ordinarily required for operation of such contract by way of practices, customs or usage and/or as prescribed by the law of the land. 6.8 The field operations/advance planning shall usually call for the presence of a representative of the contractor to be present for briefing at the appointed time and place in furtherance of the operations without loss of the available operational time. 6.9 The denial or failure of the execution of the timely operations or delays due to poor planning or failure to take timely actions or delays attributed by bad, inefficient operations of crane/prime mover including bogging down of the crane(s), etc., shall be to the account of the contractor and shall not count towards the operational time and make the contractor liable for imposition of liquidated damages as per clause 16 of the contract. Such loss of operational time shall be governed by the relevant clause. 6.11 The cranes are required to be placed at the disposal of ONGC on daily rate basis. Normal working hours will start from seven hours for 10 hours duty everyday within 1/2 (half) hour as lunch break. However, these timings are subject to change and the cranes could be asked for services beyond these working hours at the sole discretion of the ONGC. 6.12 The contractor is required to provide the crane for all days in a calendar month excepting for 4(four) days (maintenance off days). However, these timings are subject to change and the cranes could be asked for services beyond these working hours at the sole discretion of the ONGC. 6.12 The contractor is required to provide the crane for all days in a calendar month excepting for 4(four) days (maintenance off days). The four days shall be called maintenance off days and will be used by the contractor for maintenance of the crane. However ONGC reserves the right to engage the crane during the maintenance off days depending upon the exigencies of work. The contractor is allowed to accumulate the off days (if not availed) up to a maximum of 15 days at any point of time during the enforcement of the contract. 6.14 The contractor shall make his own arrangement at his cost for shelter, food, right stay and other requirements of their staff/representatives, etc., at a convenient place near the site of operation so that the crane is available for duty from seven hours to 17 hours (or as directed by the authorized representative of ONGC). Similarly to and for transport arrangement shall be made by the contractor for all his staff/representative at his own cost and when required for the continuity of the operations or for staff replacement needed in any particular field/site or for any other purpose. The contractor shall maintain adequate transport for such immediate assistance. 6.15 The contractor shall have proper and adequate arrangement for fuel, lubricants and other consumables, etc., all the time to complete the job within the scheduled time. Without prejudice to any other rights that ONGC may have under the contract, the contractor shall be liable to pay the liquidated damages to ONGC in case the contractor fails to complete the work in scheduled time and the assigned manner. The scheduled time shall be computed based on standard norm of operations settled mutually. In case of any dispute the decision of the competent authority of ONGC shall, however, be final and binding on contractor. 6.16 All the works related to operation of cranes, repairs/maintenance, POL shall be arranged by the contractor at his cost. The scheduled time shall be computed based on standard norm of operations settled mutually. In case of any dispute the decision of the competent authority of ONGC shall, however, be final and binding on contractor. 6.16 All the works related to operation of cranes, repairs/maintenance, POL shall be arranged by the contractor at his cost. In the event of failure of contractor to place the crane (s) at the disposal of ONGC for its works at the appointed time and place, ONGC shall be at liberty to make alternative arrangement at the risk and cost of the contractor and such arrangement shall continue till such time a proper substitute of the defective hired crane (s) is arranged or defect of the hired crane (s) is rectified, whichever is earlier, or limited to contract period. The time for which the crane is not available for use at the disposal of ONGC due to any defect will be treated as non-operational time. 6.18 All the operational staff (competent and mentally fit), viz., driver/crane operator/rigger slingers/khalasi/handimen/cleaners, etc., shall be provided by the contractor at his own cost along with the crane. The staff should be skilled/experience in the line for proper/safe operation of crane such as loading/unloading/slinging dunnage placement, etc. The experience of the crew should not be less than three years. However, even if during currency of contract, if ONGC is not satisfied with the performance of any of crew member, the contractor shall be required to replace the same. 7.3 The contractor will be solely responsible for and shall keep the ONGC indemnified against any consequence under laws (whether Central, State or local) arising out of any accident caused by the crane(s) to equipment/property/personnel engaged in the said contract. The contractor will also be responsible for any claim/compensation that may arise due to damages/injuries to any third party/parties, death, permanent or partial disability or damage to the property, etc., caused by his crane(s) and in addition contractor shall also be responsible to damages/disability/death, etc., to the ONGC employees/property. The contractor shall safeguard his interest through comprehensive and adequate insurance at his cost to cover such liability. ONGC shall not pay any charges towards insurance premium. However, ONGC's claim or any other claim cannot be linked up with the payment of such claim by any such insurance(s). The contractor shall safeguard his interest through comprehensive and adequate insurance at his cost to cover such liability. ONGC shall not pay any charges towards insurance premium. However, ONGC's claim or any other claim cannot be linked up with the payment of such claim by any such insurance(s). 7.5 In case of occurrence of any accident to the crane, due to which performance of the contract by the contractor and the operation of ONGC are affected, the contractor shall inform of such occurrence of accident, within 48 hours of such occurrence, along with adequate documentary proof to the satisfaction of ONGC. Failure on the part of the contractors to inform the ONGC about the occurrence of the accident, within the prescribed period aforesaid shall make the contractor liable for payment of liquidated damages as per clause No. 16 of the contract agreement. However, if the contractor provides a substitute crane of the same specifications, as the original, within a reasonable period of seven days, from the date of occurrence of the accident, ONGC may at its option consider the case to waive the imposition of liquidated damages as per clause 16 of the contract agreement. 7.9 The ONGC shall not be responsible for any claim/compensation that arises due to damages/injury/pilferage to the contractor's cranes/property/operator/driver/rigger-slinger/khalasi/labourers and staff under any circumstances while the crane were/are/is engaged for the ONGC duty by him. The contractor shall ensure that his crew should refrain from smoking or carry any inflammable substance at the installations/rig-site/stores yards, etc., while on duty with ONGC. The contractor shall also abide by and comply with all rules regarding safety and security measures while on duty with ONGC, as per the Mines Act/any other Act or statutory order or executive instructions from the competent authority as per directions issued by the safety representative of the ONGC and also of its representative at the work site/installations. The contractor shall provide necessary safety kits and liveries as per the regulations to his employees. 7.14 In order to maintain necessary operational efficiency, the contractor shall maintain jeep/pickup van and any other light transport arrangement for transportation of fuel, crew, expedients, repair staff or any other assistance required by the crane(s)/crew to meet the urgency of the connected operations. 9.2 The rates in the Schedule are all inclusive, complete, composite and firm for the contract period. 9.2 The rates in the Schedule are all inclusive, complete, composite and firm for the contract period. For work done under this contract the contractor shall be paid as under: (i) Per day hire charges for all days in a month except maintenance off days and period of non-availability (days/hours) of cranes in operation. (ii) Normally, ONGC may allow one day per week to carry out repair/maintenance of the crane (s)(maximum up to four days in a month). Contractor may also avail of such four maintenance off days at a time in any month, if due to carry out repair and maintenance off the crane with the prior approval from ONGC without any day rate payment and no LD. will be levied on such maintenance days (four days per month). 9.3 The above rates are inclusive of all expenses, which means every expenditure necessary for the continuance of the services of the cranes throughout the contract duration. Such expenses shall also include (but not restricted to) payments to regional transport authorities, labour authorities, any Government/semi-Government, local and municipal authorities dues, taxes, levies, fees, connected with the service, repairs of cranes, maintenance, HSD/Oil, lubricants, insurance, local services, all expenses of the contractor's establishments, crane crew, labourers' salaries, interest on capital, bonus, etc., of the personnel employed for the operation/maintenance of the cranes and any other expenses in providing an acceptable and satisfactory level of service. It must be clearly understood that ONGC shall not make any other payment except the agreed hire charges. 9.4 The ONGC shall not be liable to make any other payments except the agreed hire charge (as mentioned in clause No. 9.2). The rates shall also be inclusive of all incidental and contingent operations (and consequent expenses) although not specifically mentioned in terms and conditions but considered necessary or expedient to the performance of the services in a satisfactory manner and up to desired standard. 9.5 Contractor shall pay Income Tax, sales tax, custom duties and other taxes, levies, etc., as applicable from time to time directly to the respective authorities. However ONGC shall make deduction from the bills as per the demand of the respective authorities from remittance on behalf of the contractor. 9.5 Contractor shall pay Income Tax, sales tax, custom duties and other taxes, levies, etc., as applicable from time to time directly to the respective authorities. However ONGC shall make deduction from the bills as per the demand of the respective authorities from remittance on behalf of the contractor. 9.7 ONGC shall not be liable to make any payment to the contractor, unless and until the successful bidder gets himself registered under the AGST Act and submits an authenticated copy of the certificate of registration and sales tax clearance certificate to ONGC within 15 days from the date of award of contract. 16. Liquidated damages 16.1 The failure of the contractor to provide the required service quantitatively/qualitatively, timely and efficiently results into substantial losses to ONGC, which the Contractor is fully aware, ONGC cannot be fully compensated for such losses, the same being very heavy in terms of loss or production and the overheads being incurred by ONGC. However, to regulate the commercial relationship of the parties the financial losses have been quantified as hereunder: 16.4 The crane(s) deployed is/are required to be available in operations for 10 hours per day (including half an hour lunch break) for all days in a month except maintenance off days. 16.5 If on account of any reason due to the fault of the contractor, e.g., non-availability of crane/crew/fuel/defects of crane(s), etc., in case the available hours of crane operation in a particular day are less than the hours mentioned in clause 16.4 above, then payment would be made on pro rata hourly rate basis as per clause No.1.31 of section A of annexure II for actual available hours of crane(s) in operation. In addition, L. D for an amount equal to one per cent of (per day hire charges x 26/10) per hour will be recovered for the actual period of non-availability of cranes for operation. 16.8 If the crane is not made available for more than one month at a time, ONGC reserves the right to terminate the default crane contract without further notice and forfeit the performance guarantee. 17. Contractor's supervision 17.1 The contractor shall be providing a competent and experience project incharge acceptable to ONGC who shall be duly authorized in writing to act for and bind the contractor in matter relating to this contract. 17. Contractor's supervision 17.1 The contractor shall be providing a competent and experience project incharge acceptable to ONGC who shall be duly authorized in writing to act for and bind the contractor in matter relating to this contract. The project incharge shall receive and carry out directions and instructions with regard to SCOPE OF WORK from the ONGC's authorized representative. Schedule of rates for hiring of truck mounted/all terrain diesel hydraulic cranes Contract No. HQ/CHMM/HYDCRANES-3/AA/2009-2012/ZN6JCO 8006/DPA. Name of the contractor : M/s. D. P. Agarwala, AT. Road, Milan Mandir Complex, Sivasagar (Assam). Particulars Type of cranes No. of cranes to be mobilized Rate per crane Rs./day) Per day hire charges of crane, with an assured payment for all days in a calendar month except four days (maintenance days) with 10 (including ½ an hour lunch break Type III (20MT) 3 Per day Rs. 9,259 hire charge service tax Rs. 954 (10.3%) extra as applicable Total Rs. 10,213 17. The clauses and covenants of the contract agreements as alluded here-inabove, testify hiring of hydraulic cranes of the petitioners by the corporation to conduct its operation as per the specifications outlined in the scope of work. The contractors are thereby required to provide manned and equipped cranes to be accepted on due inspection thereof by the corporation. The operations essentially have to be carried out at the corporation's site(s) as it would be identified and selected by it. The cranes are required to be placed at the disposal of the corporation on daily rate basis with the normal working hours from seven hours for 10 hours everyday with half hour as lunch break. The contractors are required to provide the cranes for all days in a calendar month accepting four days earmarked as maintenance off days. The corporation however, had reserved to itself the right to engage the cranes also during the maintenance off dates depending upon the exigencies of work. 18. The contract period commences from the date on which the cranes fully equipped with crew and in perfect condition are placed at the disposal of the corporation at Sivasagar or any other appointed place in the eastern region under it. 18. The contract period commences from the date on which the cranes fully equipped with crew and in perfect condition are placed at the disposal of the corporation at Sivasagar or any other appointed place in the eastern region under it. Under the contract agreement, the contractors are to perform all services thereunder with all reasonable skill, diligence and care in accordance with sound industry practice to the satisfaction of the corporation and accept full responsibility for the qualities of such services. If any defect or deficiency is noticed by the corporation it is required to be promptly remedied within the time-frame fixed by it (corporation). To secure such satisfactory performance, the contractors are to submit security deposit/performance bond for the amount and duration from the bank as specified therein. In order to maintain necessary operational efficiency, the contractors are obliged to maintain jeep/pickup van and any other light transport arrangement for transportation of fuel, crew, expedients, repair staff or any other assistance required by the machines/crew to meet the urgency of the connected operations. They need to carry out the operations with due diligence and in a safe and workmen like manner maintaining discipline and good conduct amongst its employees and further abide by and conform to all rules and regulations promulgated by the corporation governing such operations. If the conduct of any such employee is considered to be detrimental to the interest of the corporation, it has the right to request for his/her removal and the contractors would have to comply with the same. The contractors at their expense are to arrange appropriate insurance to cover all risk under the contract in support of their personnel deputed by them as well as their equipment, tools and belongings, etc., during the period of their engagement under the contract. The corporation under the agreement has excused itself of all liabilities on this count. The contractors are also required to indemnify and kept indemnified the corporation, its other contractors and sub-contractors as well as their employees from all actions, legal proceedings, claims, demands, liabilities, damages, etc., arising out of or in course of the execution of the work under the contract or other obligations directly or indirectly associated therewith. The contractors are also required to indemnify and kept indemnified the corporation, its other contractors and sub-contractors as well as their employees from all actions, legal proceedings, claims, demands, liabilities, damages, etc., arising out of or in course of the execution of the work under the contract or other obligations directly or indirectly associated therewith. To this effect, the contractors are to safeguard their interest through comprehensive and adequate insurance at their cost to cover such liability and that the corporation is not to pay any charge towards the insurance premium. 19. The corporation also has safeguarded itself against any claim/compensation arising due to damages/injury/pilferage to the contractors' cranes/property/operator/driver, etc., under any circumstances while the machines would be engaged for it for the works. All safety measures to prevent such eventualities are also to be secured by the contractors. The services of the manned cranes, under the contract agreements are to be available for performing the duties as advised by the corporation at the appointed time and place throughout the period thereof and the works would include but not limited to dismantling/erection of deep drilling/rigs/work over rigs besides loading/unloading works of heavy drilling production equipments, etc., as may be assigned from time to time by the authorized representatives of the corporation at the various points/sites/installations/production. 20. The stipulations, however provide that the cranes along with their original documents once approved by the corporation for its services would not be changed during the period of the contract except on being defective and other cranes of similar specifications are offered as replacement. All works relating to the operation of cranes/repair/maintenance, have to be arranged by the contractors at their own cost and in the event of their failure to place the cranes at its disposal for its works at the appointed time and place, the corporation would be at liberty to make alternative arrangements at their risk and cost till proper replacements are arranged by them. They are also required to provide necessary number of slings, hooks, dunnage material and other expedients for loading/unloading, etc., to ensure prompt and efficient operations in slushy and difficult oil field conditions by the cranes to ensure optimum use thereof. They at all times would be required to maintain the cranes in a perfect working condition for their rated capacity and the designed efficiency during the period of the contracts. 21. They at all times would be required to maintain the cranes in a perfect working condition for their rated capacity and the designed efficiency during the period of the contracts. 21. The contractors as the relevant clauses proclaim, would have independence in their actions and subject to the compliance with the contract agreements would be solely responsible for the manner in which the works are performed. The contract agreements clarify that the same do not create any agency/partnership/joint ventures or joint relationship between the parties. All employees/representatives or sub-contractors engaged by the contractors in performing the contract work would be under their complete control and would not be deemed to be employees of the corporation and that nothing in the contract agreements or in any sub-contract, if awarded by the contractors would be construed to create any contractual relationship between any such employee or representative of sub-contractors and the corporation. The contract agreements, in clear terms stipulate that the employees of the contractors and/or their sub-contractors, if any, although working at the discretion of the corporation would remain the employees of the contractors and such working arrangement would not in any way create or be construed to create an employer-employee relationship between them and the corporation. The contract agreements render the contractors responsible for the acts, default or negligent of their agencies, servants or workmen. The contractors are required to make their own arrangements at their own cost for the shelter, food, night stay and other arrangements of their staff/representatives at a convenient place near the site of the operation so that the cranes are available for duty at the determined hours. All the operational staff would have to be provided by the contractors at their own cost. They have to ensure that the staff is skilled/experienced in the line for the proper/safe operation of the cranes as contemplated. They are also required to provide competent and experience project incharge acceptable to the corporation who would receive and carry out directions and instructions from it with regard to the scope of work. 22. They have to ensure that the staff is skilled/experienced in the line for the proper/safe operation of the cranes as contemplated. They are also required to provide competent and experience project incharge acceptable to the corporation who would receive and carry out directions and instructions from it with regard to the scope of work. 22. The corporation has reserved to it the right to award the whole or part of the work against the contract to any number of contractors at its sole discretion and the contractors would thus have no right to claim any particular share in total work and it would be the discretion of the corporation for any distribution thereof amongst other contractors, even during the currency of the contract and that too without assigning any reason whatsoever. The right to get the work under the contract executed departmentally or through some arrangement in part or in full has also been retained by the corporation. The contractors are not only required to comply with all relevant clauses ensuring, inter alia, all measures necessary to protect their personnel, the work and facilities but also abide by all reasonable safety rules and instructions. They are obliged to bear all tax liabilities, duties, levys, etc., including service tax, customs duty, et al. The corporation has reserved to itself its right to terminate the contract for unsatisfactory performance by giving thirty days notice in writing to the contractors. The liability for liquidated damages is also in the account of the contractors in the eventualities as mentioned in the contract agreements, in the event of their failure to provide required service qualitatively/quantitatively, timely and efficiently. 23. For the execution of the work the contractors are to be paid per day hire charges of the cranes with an assured payment for all days in a calendar month except the four maintenance off days for 10 hours operation in a day. Operational time charges per working hour/10 hours, i.e., at pro rata hourly rate is also contemplated. The relevant clauses clarify that the rates are inclusive of all expenses encompassing every expenditure necessary for the continuance of the services of the cranes throughout the duration of the contract and that the corporation would not be required to make any other payment. Operational time charges per working hour/10 hours, i.e., at pro rata hourly rate is also contemplated. The relevant clauses clarify that the rates are inclusive of all expenses encompassing every expenditure necessary for the continuance of the services of the cranes throughout the duration of the contract and that the corporation would not be required to make any other payment. The schedule of rates appended to the contract agreements clearly includes service tax at the rate of 10.3 per cent included in the per day hire charge. In other words, the service tax forms an integral unit of the rate at which the contractors are to be paid the hire charges for the cranes provided by them for executing the works of the corporation in accordance with the terms and conditions of the contract agreements. 24. The significance of the words "transfer of the right to use" in the context of the Assam Value Added Tax Act, 2003 lies in the quintessence of the concept of "lease" and "sale" as defined in Section 2(27) and 2(43) thereof. These expressions in turn determine the exigibility or otherwise of the transaction contemplated thereby under the said enactment. The definitions of these two expressions as provided by the Act for the limited purpose of this adjudication are extracted hereinbelow: 2(27) 'lease' means any agreement or arrangement whereby the right to use any goods for any purpose is transferred by one person to another (whether or not for a specified period) for cash, deferred payment or other valuable consideration without the transfer of ownership of goods and includes a sub-lease but does not include any transfer on hire purchase or any system of payment by instalments. 2(43) 'sale' with all its grammatical variations and cognate expressions means every transfer of the property in goods (other than by way of a mortgage, hypothecation, charge or pledge) by one person to another for cash or for deferred payment or other valuable consideration and includes: (iv) a transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration. 25. 25. Being confronted with the problem relating to the power of the State to levy tax on the sale of goods, more particularly vis-a-vis composite contracts such as works contracts, hire purchase contracts and catering contracts keeping in view of the decision of the apex court rendered in State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. AIR 1958 SC 560 : [1958] 9 STC 353, the law commission to which the issue was referred for scrutiny suggested amongst others an enlarged definition of the expression "sale" to be inserted in article 366 of the Constitution of India so as to include works contracts. The Constitution (Forty-sixth Amendment) Act, 1982 followed incorporating Clause (29A) in article 366 to define "tax on the sale or purchase of goods" as hereunder: (a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration; (b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (c) a tax on the delivery of goods on hire-purchase or any system of payment by instalments; (d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration; (e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration; (f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made; 26. The Statement of Objects and Reasons for the Forty-sixth Amendment is, inter alia, as follows: 2. The Statement of Objects and Reasons for the Forty-sixth Amendment is, inter alia, as follows: 2. By a series of subsequent decisions, the Supreme Court has, on the basis of the decision in Gannon Dunkerley's case AIR 1958 SC 560 : [1958] 9 STC 353; held various other transactions which resemble, in substance, transactions by way of sales, to be not liable to sales tax. As a result of these decisions, a transaction, in order to be subject to the levy of sales tax under entry 92A of the Union List or entry 54 of the State List, should have the following ingredients, namely, parties competent to contract, mutual assent and transfer of property in goods from one of the parties to the contract to the other party thereto for a price. 3. This position has resulted in scope for avoidance of tax in various ways. An example of this is the practice of inter-State consignment transfers, i.e., transfer of goods from head office or a principal in one State to a branch or agent in another State or vice versa or transfer of goods on consignment account, to avoid the payment of sales tax on inter-State sales under the Central Sales Tax Act. While in the case of a works contract, if the contract, treats the sale of materials separately from the cost of the labour, the sale of materials would be taxable, but in the case of an indivisible works contract, it is not possible to levy sales tax on the transfer of property in the goods involved in the execution of such contract as it has been held that there is no sale of the materials as such and the property in them does not pass as movables. . . 27. A conjoint reading of the definitions of "lease", "sale" and "tax on the sale or purchase of the goods" therefore irrefutably testifies that in the instant case the transactions evidenced by the contract agreements, if demonstrate transfer of right to use the cranes would be exigible to tax under the Act and not otherwise. 28. In Bharat Sanchar Nigam Ltd. [2006] 3 VST 95; [2006] 145 STC 91; [2006] 3 SCC 1, the apex court dwelt upon the scope and purport of Article 366(29A) to decipher the precise connotation of the constituent clauses thereof. 28. In Bharat Sanchar Nigam Ltd. [2006] 3 VST 95; [2006] 145 STC 91; [2006] 3 SCC 1, the apex court dwelt upon the scope and purport of Article 366(29A) to decipher the precise connotation of the constituent clauses thereof. The tussle for eligibility to levy the impost on sale or service as the case may be between the States and the Union related to transactions involving mobile phone services. Tracing the evolution of article 366(29A) of the Constitution of India, their Lordships on an indepth analysis of the six clauses thereof propounded that the same permitted specific composite contracts vis-a-vis works contracts, Sub-clause (b), hire purchase contracts, Sub-clause (c) and catering contracts (sub-clause f) to be divisible by a legal fiction where the sale element could be severed and subjected to sales tax. It was held that out of different kind of composite transactions only three species thereof, namely works contract, hire purchase contract and a catering contract were drawn within the fiction of a deemed sale. It was clarified that the first and second eventualities involved elements of service and sale at the same time and apart from these, no other service under this constitutional provision is permitted to be disintegrated or secured. Their Lordships enunciated that in case of any composite contract other than those excepted by article 366(29A), unless the transaction in truth represents two distinct and separate contracts and is discernible as such, the State would not possess the power to segregate the unit of sale from the one to render service and impose tax on the same. Their Lordships, therefore, recognized the "dominant nature test" to determine any such contract and ascertain whether the transaction fell into one category or the other to decipher the intention of the parties thereto. This test, however, their Lordships observed would not be applicable to the contracts covered by the six sub-clauses of article 366(29A). Referring to the earlier decision of the apex court in 20th Century Finance Corpn. Ltd. v. State of Maharashtra [2000] 119 STC 182 it was held that the determination therein could not be cited as an authority for the proposition that delivery of the possession of goods was not a necessary concomitant for completing a transaction of sale for the purpose of article 366(29A)(d) of the Constitution. Ltd. v. State of Maharashtra [2000] 119 STC 182 it was held that the determination therein could not be cited as an authority for the proposition that delivery of the possession of goods was not a necessary concomitant for completing a transaction of sale for the purpose of article 366(29A)(d) of the Constitution. With reference to this particular clause, it was enounced that the essence of the right therein relates to the user of goods and though the actual delivery thereof was not necessary for effecting the transfer of the right to use the same, those must be available at the time of transfer and deliverable and delivered at some stage. It was observed that the delivery, though may not be simultaneous with the transfer of the right to use, the goods must be in existence and deliverable when such right is sought to be transferred. 29. In his Lordship's concurring judgment, Dr. Ar. Lakshmanan J-(as he then was) spelt out the essential attributes of a transaction to constitute transfer of right to use goods in paragraph 97 of Bharat Sanchar Nigam Ltd. [2006] 3 VST 95 (SC) : [2006] 145 STC 91 (SC) : [2006] 3 SCC 1 (at page 133 of 3 VST): 97. To constitute a transaction for the transfer of the right to use the goods, the transaction must have the following attributes: (a) there must be goods available for delivery; (b) there must be a consensus ad idem as to the identity of the goods; (c) the transferee should have a legal right to use the goods-consequently all legal consequences of such use including any permissions or licences required therefore should be available to the transferee; (d) for the period during which the transferee has such legal right, it has to be the exclusion to the transferor-this is the necessary concomitant of the plain language of the statute-viz., a 'transfer of the right to use', and not merely a licence to use the goods; (e) having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others. 30. 30. His Lordship elucidated that while discerning the true scope of article 366(29A), each sub-clause has to be determined only within the parameters of the provisions in that sub-clause, so much so, that one sub-clause is not projected into another and one fiction upon the other. The overall conclusion that article 366(29A) permits severance of service and supply components of composite contracts only as contemplated in the sub-clauses was affirmed. 31. Axiomatically, therefore, the transactions in hand to be validly subjected to the levy under the Act would have essentially to be adjudged to constitute transfer of right to use the cranes. In the event a service element is traceable therein and any intention whatsoever of the contracting parties to contemplate two independent agreements, i.e., one for transfer of right of use and the other for service with respective values attached thereto is lacking, the bargain would catapult beyond the purview of the Act thus rendering the same inexigible to tax thereunder. To reiterate, the learned Counsel for the Revenue in course of the arguments on a dialectical scrutiny of the clauses of the contract agreements has admitted the same to constitute indivisible contracts. 32. The Delhi High Court in Commissioner, VAT, Trade and Taxes Department [2009] 25 VST 653 while dealing with the same issue relatable to a contract for hiring of Maruti omni cabs by the respondent therein to M/s. N. D. P. L. portrayed the same view. Their Lordships reiterated with reference to the decision rendered in Bharat Sanchar Nigam Ltd. [2006] 3 VST 95 (SC); [2006] 145 STC 91 (SC); [2006] 3 SCC 1 that not only the State in absence of any intention of the parties to a composite contract cannot artificially split the same to tax the sale element thereof, it cannot as well construe the contract as only for sale of goods and tax the whole value of the transaction as sale of goods. Relying on the decision of the Constitution Bench of the apex court in Godfrey Phillips India Ltd. v. State of U.P [2005] 139 STC 537, their Lordships observed that a taxing provision must be construed with clarity and precision so as to maintain exclusivity and any construction leading to overlapping ought to be eschewed. Relying on the decision of the Constitution Bench of the apex court in Godfrey Phillips India Ltd. v. State of U.P [2005] 139 STC 537, their Lordships observed that a taxing provision must be construed with clarity and precision so as to maintain exclusivity and any construction leading to overlapping ought to be eschewed. The fact that the contract involved therein was taxed as one for service by the Central Government under the Finance Act, 1994 was also taken note of to decide against any interpretation facilitating mutual entrenchment of taxing entries to render the same transaction taxable both for services, as well as for goods. Their Lordships thus concluded that in case of a composite contract of both services and sale of goods, having regard to the backdrop of article 366(29A), the same ought to be construed as a contract of service assessable to tax under the Finance Act, 1994. Relying on paragraph 97 of Bharat Sanchar Nigam Ltd. [2006] 3 VST 95 (SC) : [2006] 145 STC 91 (SC) : [2006] 3 SCC 1 it was held, inter alia, with reference to the clauses in the contract involved that the permission and licences for operating the Maruti omni cabs having remained in the control and possession of the respondent, no transfer of right to use the same had occurred. The decisions cited on behalf of the Revenue having been appropriately noted and discussed in Bharat Sanchar Nigam Ltd. [2006] 3 VST 95 (SC) : [2006] 145 STC 91 (SC) : [2006] 3 SCC 1 separate dilation thereof is considered inessential. 33. The various clauses referred to hereinabove if considered in conjunction along with the unqualified recital in the scope of work, in the estimate of this Court do not comprehend a lease or transfer of right of use of the crane(s) and propel the transaction out of the purview of lease/sale as contemplated by article 366(29A)(d) of the Constitution of India or Section 2(27)/2(43) of the Act. A dominion of the corporation over the manned crane(s) though perceptible for the operational needs the overwhelmingly emphatic covenants consciously incorporated by the contracting parties emphasise as well the singular responsibility and accountability of the contractors to unfailingly guarantee the timely placement, and availability of the manned crane (s) as well as the smooth and quality execution of the works. A dominion of the corporation over the manned crane(s) though perceptible for the operational needs the overwhelmingly emphatic covenants consciously incorporated by the contracting parties emphasise as well the singular responsibility and accountability of the contractors to unfailingly guarantee the timely placement, and availability of the manned crane (s) as well as the smooth and quality execution of the works. A few clauses of the contract though are suggestive of the corporation's prerogative to use the crane (s) as per its requirements, the same per se do not constitute cessation of the contractors' duties as enumerated on various fronts for due discharge of the services expected of them. The terms and conditions of the contract agreements taken as a whole, do not proclaim corporation's possession, custody and control of the crane(s) to the total exclusion and estrangement of the contractors wholly alienating them from the assignment agreed to be undertaken. The parties seem to be ad idem to accentuate upon continuous supervision and surveillance of the contractors not only to affirm unhindered execution of the corporation's works but also to ensure quality service. The residuary discretion and the power retained by the corporation in the matter of detailment of the works and the prohibition against the withdrawal of the crane (s) approved by it do not ipso facto militate against the otherwise all pervasive service aura discernible in the contract agreements. Though the working hours of the crane (s) have been specified, the contract agreements do not ordain continuance of the location thereof at the site(s) even thereafter. Payments on hourly pro rata basis are also contemplated. Not only the opening recital portraying the transaction to be neither a lease nor a transfer of right to use the crane(s) consciously incorporated in the contract agreements ought not to be readily trivialized, the comprehension of service tax only being payable is also redolent of the predominant service feature thereof. The parties, inspite of all the clauses bearing on the minutiae of the operations did not contemplate transfer of right to use of the cranes by the contractors in favour of the corporation divesting themselves of their authority and control over the same. 34. The parties, inspite of all the clauses bearing on the minutiae of the operations did not contemplate transfer of right to use of the cranes by the contractors in favour of the corporation divesting themselves of their authority and control over the same. 34. The determination made by a Division Bench of this Court in Writ Appeal No. 138 of 2007 (Dipak Nath v. Oil and Natural Gas Corporation Ltd. [2010] 31 VST 337) and a batch of other writ appeals and writ petitions accompanying the same in view of the apparent distinguishable features in the contract agreements involved, in the present adjudication does not wrest the issue in favour of the Revenue. Not only the contract agreements scrutinized in the aforementioned appeals, though otherwise substantially identical with those in hand did not inscribe the striking and unequivocal recital that the services of the manned cranes to be made available for performing the duties of the corporation would not be by way of lease or transfer of rights for use thereof by the contractors to it (corporation), the parties thereto, in clear terms contemplated realization and payment of service tax at the rate of 10.3 per cent thereon under the Finance Act, 1994. Moreover, the plea of indivisibility of a composite contract of the type involved in the perspective of article366(29A) of the Constitution was not raised to be analysed and adjudged in those appeals. The contract agreements therein also related to a point of time prior to the incorporation of Sub-clause (zzzzj) in the definition of "taxable service" provided in Section 65(105) thereof vide the Finance Act, 2008 with effect from May 16, 2008. 35. The apex court amongst others in Bharat Sanchar Nigam Ltd. [2006] 3 VST 95 (SC) : [2006] 145 STC 91 (SC) : [2006] 3 SCC 1 while reflecting on the plea of res judicata raised therein enunciated that the court's would generally adopt an earlier pronouncement of law or a conclusion of the fact unless there is a new ground urged or a material change in the factual position. The endeavour of the Revenue to draw sustenance from the decision in the said appeals is thus of no avail. 36. Taxable service referred to hereinabove and as defined in Section 65(105) of the Finance Act, 1994 as amended by the Finance Act, 2008 being essential for the instant adjudication is extracted hereunder: 65. The endeavour of the Revenue to draw sustenance from the decision in the said appeals is thus of no avail. 36. Taxable service referred to hereinabove and as defined in Section 65(105) of the Finance Act, 1994 as amended by the Finance Act, 2008 being essential for the instant adjudication is extracted hereunder: 65. (105) 'Taxable service' means any service provided or to be provided.-... (zzzzj) to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances. 37. Vide Circular/letter DOF No. 334/1/2008/TRU dated February 29, 2008 issued by the concerned Department of the Central Government, a clarification was provided in the context of article 366(29A)(d) of the Constitution that the transfer of right to use any goods is subject to sales tax/VAT. While explaining that the transfer of right to use involves transfer of both possession and control of the goods to the user thereof, it was elucidated that transactions of allowing another person to use the goods without giving the legal right of possession and effective control would be treated as service. Whether a transaction involves transfer of possession and control, the notification clarified, was a question of fact and was to be decided based on the terms of the contract and other material facts as well as from the fact whether or not VAT is payable or paid. 38. The contracts presently involved are apparently of the post-amendment period. The concurrence of the parties in the integration of the service charges in calculating the rate per crane when construed with the opening recital mentioned hereinabove that the transaction would not be one of lease or sale is a veritable index of their outright intention to sequester it from a sale or lease within the meaning of the Act or article 366(29A) of the Constitution of India. 39. In the face of the overwhelming clauses of the contract agreements which predominantly project the transactions for rendition of services of manned cranes by the petitioners, the challenge laid to the competence of the Revenue to realize tax under the Act in connection therewith, appears to be formidable. To reiterate the Revenue has admitted the transactions to be otherwise indivisible. In the face of the overwhelming clauses of the contract agreements which predominantly project the transactions for rendition of services of manned cranes by the petitioners, the challenge laid to the competence of the Revenue to realize tax under the Act in connection therewith, appears to be formidable. To reiterate the Revenue has admitted the transactions to be otherwise indivisible. The contract agreements, however do not evidence even a little of the intention of the parties to mutilate the integrity of the transactions engrafted therein into two independent undertakings for transfer of the right to use the cranes and services, quantifying separate values therefor. The essence of the contract agreements is not the cranes, but the covenants to employ the same. As has been envisioned in paragraph 97 of Bharat Sanchar Nigam Ltd. [2006] 3 VST 95 (SC) : [2006] 145 STC 91 (SC) : [2006] 3 SCC 1 the essential feature of sale amongst others are (1) the legal right of the transferee to use the goods to the exclusion of the transferor during the period of the contract and not merely a licence therefor, (2) the legal right of the transferee to use the goods with all legal consequences thereof including permissions or licence to be available to permit the exercise thereof. 40. The transfer of right would thus imply relinquishment of both possession and control of the goods by the transferor in favour of the transferee whereafter during the transaction the former would have absolute dominion thereupon to the alienation of the latter. 40. The transfer of right would thus imply relinquishment of both possession and control of the goods by the transferor in favour of the transferee whereafter during the transaction the former would have absolute dominion thereupon to the alienation of the latter. The enjoinments proclaimed by the various clauses of the contract agreements albeit are to secure the maximum utilization of the manned cranes and the quality services to be rendered thereby, (i) all permeable supervision of the contractors over the works to be executed on the instructions of the representatives of the corporation, (ii) their singular responsibilities and liabilities to guarantee the availability of the manned cranes while ensuring the perfect working condition thereof, (iii) the insulatory stance of the corporation from all liabilities, risks, hazards, claims, etc., that may arise from the operations and (iv) recognition of the independence of the contractors and their employees considered cumulatively, in the opinion of this Court are extinctive of any supervening dominion of the corporation over the possession, custody and control of the cranes so as to signify transfer of right of use thereof to it by the contractors. No patent or latent comprehension of the contracting parties is perceptible from the contract agreements to deduce any transfer of right to use the cranes so as to render the transactions exigible to tax under the Act. 41. On a totality of the considerations as hereinabove and in the wake of the determinations made, this Court is of the view that the petitioners' assailment ought to succeed. The proposed action of the respondents to deduct tax under the Act at source qua the transactions is thus adjudged to be illegal and without jurisdiction. 42. The petitions are thus allowed. In the fact and circumstances of the case, however the parties would bear their own costs.