ORDER A.K. Goel, C.J. 1. This order Will dispose of W.P. (C) Nos. 578 of 2009, 809 of 2009, 822 of 2009, 811 of 2009, 816 of 2009, 819 of 2009, 325 of 2011, 1705 of 2009, 802 of 2009, 1960 of 2009, Writ Appeal Nos. 286 of 2010, 279 of 2011, W.P.(C) Nos. 5343 of 2011, 5344 of 2011, 5345 of 2011, 5346 of 2011, 5347 of 2011, 5280 of 2011, 5348 of 2011, Writ Appeal No. 147 of 2011, W.P.(C) Nos. 2124 of 2011, 5585 of 2011 and Writ Appeal No. 383 of 2009 as it is stated by learned counsel for the parties that all the cases involve a common question of leviability of VAT under the Assam Value Added Tax Act, 2003 ("the Act") on the transaction in question on the ground that transfer of right to use the goods for consideration was involved therein. We have taken Writ Appeal No. 286 of 2010 and Writ Appeal No. 279 of 2011 as the lead cases-the first being the appeal by the Revenue and the second being appeal by the assessee against orders of learned single judge in identical matters. 2. In Writ Appeal No. 286 of 2010 one learned single judge Reported as D.P. Agarwalal v. Oil and Natural Gas Corporation Ltd. (2010) 32 VST 8 (Gauhati). has taken view in favour of the assessee while in Writ Appeal No. 279 of 2011 another learned single judge following an earlier Division Bench judgment dated November 25, 2009 in Writ Appeal No. 138 of 2007 (Dipak Nath v. Oil and Natural Gas Corporation Ltd. (2010) 31 VST 337 (Gauhati)) has taken a view in favour of the Revenue. 3. In Writ Appeal No. 286 of 2010, the respondent-assessee challenged deduction of tax at source under the Act in respect of the transaction covered under the contract dated June 22, 2009 between the assessee-contractor and the Oil and Natural Gas Corporation Ltd. (ONGC), contractee on the ground that no transfer of right to use was involved, the transaction being in the nature of service. Case of the assessee was that it owned cranes and in pursuance of notice inviting tenders issued by the ONGC for hiring cranes, the assessee had entered into the contract. The cranes were placed at the disposal of the contractee ONGC on day-to-day basis, without transfer of possession and custody thereof. Case of the assessee was that it owned cranes and in pursuance of notice inviting tenders issued by the ONGC for hiring cranes, the assessee had entered into the contract. The cranes were placed at the disposal of the contractee ONGC on day-to-day basis, without transfer of possession and custody thereof. Operating costs including maintenance, repair, insurance, salary of employees were to be borne by the assessee and there was no transfer of ownership of the cranes, nor of the right to use. The possession and custody of the cranes remained with the assessee. The assessee was paying service tax to the Central Government under the provisions of the service tax contained in the Finance Act, 1994. The Revenue informed the assessee that in view of judgment of this court in Dipak Nath (2010) 31 VST 337 (GAU.), the contract in question attracted VAT. The said judgment could not apply after the Finance Act, 1994 came to be amended with effect from May 16, 2008, whereby clause (zzzzj) was inserted in section 65(105) of the Finance Act, 1994, making service in relation to supply of tangible goods, including machinery, equipments and appliances for use without transferring right or possession and effective control, to be taxable service. The contract of providing cranes for hire to the ONGC was a contract of service and not of transfer of right to use in view of terms of the contract in question. The work included deep drilling rigs/work over rigs besides loading/unloading works of heavy and all connected rig materials from or into trailers/trucks/ railways wagons besides any other materials handling job as may be assigned from time to time by the authority. The employees for operating cranes remained employees of the assessee and were not paid any extra charges by the contractee-ONGC. The assessee was required to make arrangement for shelter, food, stay and other requirements of the said staff. The assessee also continued to remain responsible for any claim arising out of accident by the cranes. Per day hire charges for the cranes were inclusive of all expenses necessary for continuance of service of the cranes. Repair and maintenance of the cranes and establishment expenses were of the assessee. The contract could not be split up so as to treat a part of contract to be of sale, in case the contract was considered to be composite contract of sale and service. Repair and maintenance of the cranes and establishment expenses were of the assessee. The contract could not be split up so as to treat a part of contract to be of sale, in case the contract was considered to be composite contract of sale and service. 4. The writ petition was contested by the State of Assam by submitting that the contract was predominantly the transfer of right to use the cranes in favour of the ONGC. As per the terms of the contract, the right to use during subsistence of contract was with the ONGC and not with the assessee. Payment of service tax was not determinative of chargeability of VAT. Providing of service for operating the cranes was incidental to the contract of transfer of right to use the cranes. Even if the transaction involved two overlapping taxable events, distinctiveness of the aspect of sale enabled levy of VAT on the transaction. 5. The learned single judge 1. Reported as D.P. Agarwalal v. Oil and Natural Gas Corporation Ltd. (2010) 32 VST 8 (GAU.), after considering the rival submissions, upheld the plea of the assessee. The Division Bench judgment of this court in Dipak Nath (2010) 31 VST 337 (GAU.) was held to be distinguishable on the ground that the transaction involved therein was not unequivocal that cranes were being made available for services of ONGC, though substantially identical, the plea of indivisibility of composite contract was not decided therein and the transaction was prior to amendment of provisions of service tax by the Finance Act, 2008. It was further held that as per the recital in the scope of work, dominion of the contractee-ONGC, without cessation of duty of the contractor-assessee to maintain the cranes could not give rise to the interference of transfer of control of the cranes. The operative parts of the observations in the said judgment are (pages 38-40 in 32 VST): 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 336(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 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 derailment 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 of 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 of 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. 138/2007 (Dipak Nath v. Oil and Natural Gas Corporation Ltd., (2010) 31 VST 337 (Gauhati)) 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 article 366(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. 6. Contrary to the above, in Dipak Nath construing almost identical contract with the ONGC, it was held that transfer of right to use was involved as the cranes were placed at the disposal of the ONGC for its operation on all days except maintenance days. Mere fact that the contractor was required to provide employees or other facilities made no difference to issue of transfer of right to use, even if the physical possession may be with the contractor. It was held that (pages 350-353 in 31 VST) : 18. Mere fact that the contractor was required to provide employees or other facilities made no difference to issue of transfer of right to use, even if the physical possession may be with the contractor. It was held that (pages 350-353 in 31 VST) : 18. A reading of the core provisions of the terms of the contract, details of which have been extracted above, would indicate that insofar as the cranes are concerned, the same are required for dismantling or erection of deep drilling rigs/work over rigs and similar other works in different locations where the ONGC is engaged in its operations. Under clause 3.1 such cranes are to be placed at the disposal of the ONGC and should be available throughout the duration of the contract. Under clause 4 the cranes are to be brought to the places nominated by the ONGC on the date of commencement of the work and are to be taken by the contractors on the termination of the contract. Under clause 5.1 the cranes offered by the contractor are to be inspected by the ONGC along with the documents pertaining to the cranes. Under clause 5.3 'once a particular crane and its documents have been approved for service of the ONGC the same cannot be changed during the period of the contract except on being rendered defective. Under clause 8.1 of the contract agreement though the contractor is required to provide employees for operation of the crane such employees are to work as directed by the ONGC. Under clause 8.3 of the contract agreement a crane though hired for work in oil field conditions may also be required to work in other hazardous situations at the discretion of the ONGC. Refusal to work in such hazardous situations as directed by the authorized representative of the ONGC could lead to de-hiring of the crane. Under clause 8.7 of the contract agreement day-to-day operations are to be performed as per instructions given to the contractor's representatives by the authorized representatives of the ONGC. Under clause 8.11 normal working hours are to commence from seven hours for 10 hours everyday with half an hour as lunch break. However, the said clause has specifically mentioned that the timings indicated therein are subject to change and cranes may be asked for services beyond the normal working hours at the sole discretion of the ONGC. Under clause 8.11 normal working hours are to commence from seven hours for 10 hours everyday with half an hour as lunch break. However, the said clause has specifically mentioned that the timings indicated therein are subject to change and cranes may be asked for services beyond the normal working hours at the sole discretion of the ONGC. Under clause 8.12, a contractor is required to provide the crane on all days in the calendar month except 4 (four) days which are to be treated as maintenance off days. Even on such maintenance off days the ONGC can demand operation of the cranes by the contractor. Under clause 8.14 the employees provided by the contractor are to be provided with suitable residence at a convenient place near the site of operations so as they can be available for duty for 10 hours starting from seven hours to 17.00 hours or as directed by the authorized representative of the ONGC. Under clause 9.10 of the contract agreement the contractor is to arrange the fuel lubricants and other consumable at all times. Under clause 8.15 the contractor is to additionally ensure that each crane while reporting for duty is provided with adequate fuel for at least 24 hours of work. Under clause 9.14 the staff of the contractor engaged in the operation of the crane is required to maintain the log books provided by the ONGC and have the same signed at the required intervals by the authorized officer of the ONGC. Under clause 11.2 of the contract agreement apart from monthly operational charges for 26 days at the rate of 10 hours per day (the remaining four days are maintenance off days) additions on account of excess operational hours is contemplated. Furthermore, even during maintenance off days ONGC is to pay 50 per cent of the operational charges per day though the crane may not be actually deployed in operations. 19. The above analysis of the relevant provisions of the contract agreement between the parties indicates the clear dominion and control of ONGC over the crane during the entire period of operation of the contract once a crane is placed at the disposal of the ONGC under the contract. 19. The above analysis of the relevant provisions of the contract agreement between the parties indicates the clear dominion and control of ONGC over the crane during the entire period of operation of the contract once a crane is placed at the disposal of the ONGC under the contract. The crane is to be deployed at worksites as per the discretion of the ONGC and though the normal period of deployment is 10 hours in a day, such deployment at the discretion of the ONGC may be for any period beyond the normally contemplated 10 hours. The deployment of the crane in oil field operations as well as other hazardous situations is at the sole discretion of the ONGC. Though the cranes are operated by the crew provided by the contractor such crew while operating a crane is under the effective control of the ONGC and its authorities. Therefore, under the contract though the normal operational time is 10 hours in a day, the ONGC is entitled to deploy the cranes, if required, for the entire period of 24 hours to perform duties, the kind of which and the locations whereof is to be decided by the ONGC The mere fact that after the operation of the crane is over on any given day the crane may come back to the owner/contractor will hardly be material to decide as to who has dominion over the crane inasmuch as the crane can be recalled for duty by the ONGC at any time. Under the contract the crane is to be operated for 26 days in a month and the remaining four days are to be treated as maintenance off days. Though the crane is not operational on the maintenance off days, yet, 50 per cent of the operational charges is paid by the ONGC for the maintenance off days and the terms of the contract make it clear that even on the off days the crane can be called for operation by the ONGC as its sole discretion. 20. The above features of the contract, in our considered view, makes it abundantly clear that it is the ONGC and not the contractor who has exclusive control and dominion over the crane during the subsistence of the contract, though, during the aforesaid period, at times, physical possession of the crane may come back to the contractor. 20. The above features of the contract, in our considered view, makes it abundantly clear that it is the ONGC and not the contractor who has exclusive control and dominion over the crane during the subsistence of the contract, though, during the aforesaid period, at times, physical possession of the crane may come back to the contractor. Such temporary physical possession of the contractor, according to us, would hardly be relevant as under the contract the ONGC is vested with the authority to requisition the crane for operational purposes at any time. Besides, such temporary possession of the crane by the contractor does not mitigate against the transfer of the right to use the crane which event, as already indicated on the authority of the decision of the apex court in 20th Century Finance Corpn. Ltd. v. State of Maharashtra (2000) 119 STC 182 (SC), constitutes the taxable event under article 366(29A)(d) of the Constitution. 7. We have heard learned counsel for the parties. 8. The learned counsel for the Revenue submits that this court may not go into the question as to whether the transaction covered by contract dated June 22, 2009 amounted to transfer of right to use so as to pre-empt the assessing authority from taking a decision. Alternatively, it was submitted that the real effect of the transaction in question was to transfer the right to use of the cranes by the assessee to the ONGC for the hire charges as held in Dipak Nath, which was binding on learned single judge and has been wrongly distinguished in spite of contract being identical. Further, the recital in the agreement shows that the notice inviting tender was for "hire of the cranes" and for all practical purposes the use of the cranes was transferred to the ONGC for the period of contract and the assessee had no right to use the same, such right having been transferred to the contractee-ONGC for consideration. Mere fact that under the contract, responsibility for the maintenance and proper use of the cranes was of the assessee did not deviate from the nature of transaction being transfer of right to use. The transaction was not covered by the Finance Act, 2008 as thereunder services of supply of tangible goods were taxable if right to possession and control was retained by the service provider. The transaction was not covered by the Finance Act, 2008 as thereunder services of supply of tangible goods were taxable if right to possession and control was retained by the service provider. Reliance was placed on judgment of the honourable Supreme Court in Bharat Sanchar Nigam Ltd. v. Union of India (2006) 3 VST 95 (SC): (2006) 145 STC 91 (SC): (2006) 282 ITR 273 (SC): (2006) 3 SCC 1 , particularly paragraphs 74, 75, 76, 77 and 97 (paras 73, 74, 75, 76 and 97 in 3 VST 95) as follows : 74. In determining the situs of the transfer of the right to use the goods, the court did not say that delivery of the goods was inessential for the purposes of completing the transfer of the right to use. The emphasised portions in the quoted passage evidences that the goods must be available when the transfer of the right to use the goods takes place. The court also recognised that for oral contracts the situs of the transfer may be where the goods are delivered (see para 26 of the judgment). 75. In our opinion, the essence of the right under article 366(29A)(d) is that if relates to the user of goods. It may be that the actual delivery of the goods is not necessary for effecting the transfer of the right to use the goods but the goods must be available at the time of transfer, must be deliverable and delivered at some stage. It is assumed, at the time of execution of any agreement to transfer the right to use, that the goods are available and deliverable. If the goods, or what is claimed to be goods by the respondents, are not deliverable at all by the service providers to the subscribers, the question of the right to use those goods, would not arise. 76. In State of Andhra Pradesh v. Rashtriya Ispat Nigam Ltd. (2002) 126 STC 114 (SC): (2002) 3 SCC 314 , it was claimed by the sales tax authorities that the transaction by which the owner of certain machinery had made them available to the contractors was a sale. 76. In State of Andhra Pradesh v. Rashtriya Ispat Nigam Ltd. (2002) 126 STC 114 (SC): (2002) 3 SCC 314 , it was claimed by the sales tax authorities that the transaction by which the owner of certain machinery had made them available to the contractors was a sale. The court rejected the submission saying that (SCC, page 315, para 4) (page 116 in 126 STC) : ...the transaction did not involve transfer of right to use the machinery in favour of contractors....the effective control of the machinery even while the machinery was in use of the contractor was that of the respondent-company; the contractor was not free to make use of the machinery for the works other than the project work of the respondent or... 77. But in the case of Aggarwal Brothers v. State of Haryana (1999) 113 STC 317 (SC) : (1999) 9 SCC 182 when the assessee had hired shuttering in favour of contractors to use it in the course of construction of buildings it was found that possession of the shuttering materials was transferred by the assessee to the customers for their use and, therefore, there was a deemed sale within the meaning of sub-clause (d) of clause (29A) of article 366. What is noteworthy is that in both the cases there were goods in existence which were delivered to the contractors for their use. In one case there was no intention to transfer the right to use while in the other there was. ... 97. What is noteworthy is that in both the cases there were goods in existence which were delivered to the contractors for their use. In one case there was no intention to transfer the right to use while in the other there was. ... 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. 9. The learned counsel for the assessee supported the view taken by learned single judge 1. Reported as D.P. Agarwala v. Oil and Natural Gas Corporation Ltd. (2010) 32 VST 8 (GAU.)., particularly, the conclusion in para 33 (paras 39 and 40 in 32 VST 8) of the judgment as follows : 33. 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 therefore. The essence of the contract agreements is not the cranes, but the covenants to employ the same. 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) 282 ITR 273 (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 therefore, (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. The transfer of right would thus imply relinquishment of both possession and control of the goods by the transferor in favour of the transferee where after 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 to 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. 10. The learned counsel for the assessee also relied upon, apart from Bharat Sanchar Nigam Ltd. (2006) 3 VST 95 (SC): (2006) 145 STC 91 (SC): (2006) 282 ITR 273 (SC): (2006) 3 SCC 1 , following judgments: (1) Commissioner, Trade Tax, U.P., Lucknow v. Jamuna Prosad Jaiswal [2008] 13 VST 403 (All). 10. The learned counsel for the assessee also relied upon, apart from Bharat Sanchar Nigam Ltd. (2006) 3 VST 95 (SC): (2006) 145 STC 91 (SC): (2006) 282 ITR 273 (SC): (2006) 3 SCC 1 , following judgments: (1) Commissioner, Trade Tax, U.P., Lucknow v. Jamuna Prosad Jaiswal [2008] 13 VST 403 (All). (2) Rungta Projects Limited v. State of Bihar (1998) 108 STC 234 (Patna). (3) Commissioner, VAT v. International Travel House Ltd. (2009) 25 VST 653 Del). (4) Bhopal Sugar Industries Ltd. v. Sales Tax Officer, Bhopal (1977) 40 STC 42 (SC). (5) W.P. (C) No. 127 of 2005 (Agartala Bench) HLS Asia Limited v. State of Tripura (2011) 41 VST 341 (GAU.). 11. We have given due consideration to the rival submissions and also perused the judgments relied upon and the record. 12. Main question for consideration is whether the transaction covered by the contract in question involves transfer of right to use. 13. Before we deal with the main question, we may deal with the objection raised on behalf of the State that the writ court may not deal with the nature of transaction so as to pre-empt the statutory assessing authorities determining the question whether the transaction was of transfer of right to use the goods. Undoubtedly, the writ court is not expected to decide a question of fact which is required to be gone into during the assessment. But no such objection having been raised before learned single judge and the parties having participated in adjudication of the issue on merits, it will be too late in the day to non-suit the assessee at this stage. 14. Coming to the merits, it has to be analysed whether, under the transaction in question, right to use of the cranes remains vested with the contractor-assessee or gets transferred to the contractor ONGC. 15. To determine the nature of transaction, regard has to be had to the substance of the transaction than to its form. The substance has to be gathered from the totality of the terms of the contract. 16. As held in BSNL, for determining whether transfer of right to use the goods was involved, there must be goods available for delivery; there should be consensus as to identity of goods; the transferee should have legal right to use the goods, to the exclusion of the transferor. 17. 16. As held in BSNL, for determining whether transfer of right to use the goods was involved, there must be goods available for delivery; there should be consensus as to identity of goods; the transferee should have legal right to use the goods, to the exclusion of the transferor. 17. Applying these tests, the Division Bench of this court in Dipak Nath (2010) 31 VST 337 (GAU.) held that transfer of right to use the goods was involved in the transaction. We are in respectful agreement with the view taken therein. 18. The distinguishing features pointed out by the learned single judge are of no consequence to the core issue. Question whether it was transfer of right to use did not depend on the provisions of the service tax law and thus amendment by the Finance Act, 2008 had no relevance to determine the said question. Plea of indivisibility of the contract also did not make any difference, if the transaction clearly involved transfer of right to use. The terms of the contract have already been analyzed in the Division Bench judgment in Dipak Nath (2010) 31 VST 337 (GAU.) and present contract is substantially identical. 19. The agreement is for hiring of the cranes. The heading and the recital clearly show that nature of transaction is for the hiring. The hire charges are per day for all days except the off days, though the bill is to be raised monthly. The provisions for maintenance, providing staff for maintenance and operation and taking responsibility for claim of third parties do not affect the nature of the transaction. 20. Some of the clauses, which are material for the issue in question, are as follows : Whereas ONGC is desirous of entering into a contract for hiring of hydraulic cranes for carrying out ONGC's operations conforming to specifications as set forth in the scope of work of this agreement. 9.0 Performance The contractor shall undertake to perform all services under this contract with all reasonable 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. 9.0 Performance The contractor shall undertake to perform all services under this contract with all reasonable 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 36 (thirty) days written notice. 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 of 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 not by way of lease or transfer of rights for use of. the vehicle/equipment, by the contract to ONGC. The work under contract shall include but not limited to dismantling/erection of deep drilling rigs/work over rigs besides loading/ unloading works of heavy drilling/production equipment's, like tubulars, bunk houses, store houses of odd size and all connected rig materials from or into trailers/trucks/railways wagons besides any other materials handling 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. 2. Cranes and its operation; 2.1 Cranes placed at the disposal of ONGC should be available throughout the contract duration with the required efficiency/fitness to handle loads up to the designed capacity. 9. Rates and mode of payment : 9.1. The contractors shall raise crane wise monthly bills in TRIPLICATE in the prescribed pro forma in the name of FINANCE and ACCOUNTS OFFICER, ONGC and submits the same to incharge-logistic-operations, ONGC, or any other authority advised from time to time for arranging payment. 9. Rates and mode of payment : 9.1. The contractors shall raise crane wise monthly bills in TRIPLICATE in the prescribed pro forma in the name of FINANCE and ACCOUNTS OFFICER, ONGC and submits the same to incharge-logistic-operations, ONGC, or any other authority advised from time to time for arranging payment. These bills will be duly supported by the completed logbook sheets to him duly signed by the authorized officers for record by the logistic Department. The bills after verification and checks by an authorized officer of ONGC (logistic Department) will be sent to finance and accounts Department for payment. The payment shall be made to the contractor by cheque drawn on State Bank of India. The payment, shall normally be made within 30 days of the receipt of the bill duly complete in all respects. No interest shall be payable for any delay. No advance against hire charge is payable under any circumstances. 9.2 The rate 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 cranes (maximum up to four days in a month). Contractor may also avail such four maintenance off days at a time in any month, if due, to carry out repair and maintenance of 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). (iii) If the crane is engaged on any maintenance day(s), in a month, payment will be made as per the day rate. (iv) (a) In case, due to ONGC operational requirement contractor has not availed of maintenance day(s) in a particular month (max. up to four days), contractor can avail of the left over maintenance days in the subsequent months in addition to the available maintenance days of the respective month. However, contractor may accumulate maintenance days only up to eight days at any point of time. up to four days), contractor can avail of the left over maintenance days in the subsequent months in addition to the available maintenance days of the respective month. However, contractor may accumulate maintenance days only up to eight days at any point of time. These maintenance days can be availed of by the contractor with prior approval of ONGC The number of maintenance days shall not be carried forward for more than 8 accumulated days at any point of time and no LD will be imposed on such cases. (b) Depending on the urgency and requirement of work, if the crane is utilized by ONGC, beyond 10 hours (including half an hour lunch) in a day, for each hour of utilization payment will be made on pro rata basis, calculated as per clause 1.31 of section A of annexure II of the contract. This would include all expenses, including OT charges if any to the operating crew and operational charges. Occasionally the crane may be required to work round the clock during lowering and pulling of casting operations. (v) During the period if the crane(s) remained in stuck up conditions in the ONGC's operational site as per the ONGC's record during normal working hours a day, the payment will be restricted to the rate of 10 per cent of the day rate/pro rata hourly rate as mentioned in clause 1.31 of section A of annexure II of the contract, as the case may be. No other payment for this period will be made. The decision of ONGC with regard to stuck up condition will be final and binding and the contractor will abide by the decision of ONGC. (vi) The payment of hired charges of crane(s) will be made on the basis of crane utilization record (date/time/period, etc.) entered in the log book of crane(s) provided to the contractor by ONGC, the contractor should maintain logbook and see that proper crane utilization/operations are recorded in the log book of the crane and log book is completed in all respect duly signed by ONGC's user/representative without any erasing, overwriting, cutting whatsoever. Whenever necessary and if any entry is cut/rewritten it should be got signed by the user. Log book should be completed every day before closing. 9.3. Whenever necessary and if any entry is cut/rewritten it should be got signed by the user. Log book should be completed every day before closing. 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. 21. A perusal of the above terms shows that (a) the contract is for hiring of the cranes for carrying out the operations of the ONGC; (b) the scope of work is mentioned to specify the operation in connection with which the cranes are hired; (c) the work is not to be executed by he contractor but by the ONGC itself; (d) the contractor is to provide cranes on hire in connection with the said work. It appears to have been wrongly assumed that the contractor is to execute the work mentioned in the heading of "scope of work". It is clear from the recital that the scope of work is mentioned as the work for which the cranes were hired; (e) clause 2.1 shows that the cranes are at the disposal of the ONGC and per day hire charges are paid for all days, except maintenance days; (f) services of staff and maintenance are incidental to the hiring of the cranes. Liability to the third party is on account of the fact that in spite of hiring of the cranes by the ONGC, the employees operating the cranes are provided by the assessee. In Mersey Docks and Harbour Board Ltd. v. Coggins and Griffiths (Liverpool) Ltd. and Mcfarlane (1946) 2 All E. R. 345 (HL), and in Karuppan Bhoomidas v. Port of Singapore Authority (1978) 1 All ER 956, it has been held that even if a ship is hired, responsibility for damage to a third party is not of the hirer but of the owner as it is the owner who controlled the manner and working of the employees; (g) it is the ONGC alone which is entitled to exclusively use the cranes and not the assessee. 22. On totality of above factors, we, conclude that the transaction clearly involved transaction of right to use. 23. Coming now to the judgments relied upon on behalf of the assessee, the judgment of the honourable Supreme Court in Bhopal Sugar Industries (1977) 40 STC 42 (SC) relates to interpretation of words in a transaction and holds that the court has to see the substance than the form. There is no dispute with this proposition. Judgments in (1) Commissioner, Trade Tax, U.P., Lucknow v. Jamuna Prasad Jaiswal (2008) 13 VST 403 (All), (2) Rungta Projects Limited v. State of Bihar (1998) 108 STC 234 (Patna) and (3) Commissioner, VAT, Trade and Taxes Department v. International Travel House Ltd. (2009) 25 VST 653 (Del) are on individual fact situations. The nature of contract involved therein being different, the said judgments are of no assistance. 24. As regards HLS Asia Limited (2011) 41 VST 341 (GAU.), the transaction involved therein is also not identical. Moreover, the said judgment in referring to the impugned judgment of the learned single judge with approval can not be read as dissenting from the Division Bench judgment of this court in Dipak Nath (2010) 31 VST 337 (GAU.). The said judgment has thus to be limited to the nature of the transaction considered therein. In absence of discussion of ratio of Division Bench judgment of this court in Dipak Nath (2010) 31 VST 337 (GAU.), it cannot also be held that there is a conflict in two Division Bench judgments of this court so as to refer the matter to a Larger Bench. In absence of discussion of ratio of Division Bench judgment of this court in Dipak Nath (2010) 31 VST 337 (GAU.), it cannot also be held that there is a conflict in two Division Bench judgments of this court so as to refer the matter to a Larger Bench. In view of above, we allow Writ Appeal Nos. 286 of 2010, 147 of 2011 and 383 of 2009 filed by the Revenue and dismiss Writ Appeal No. 279 of 2011 and W. P, (C) Nos. 578 of 2009, 809 of 2009, 822 of 2009, 811 of 2009, 816 of 2009, 819 of 2009, 325 of 2011, 1705 of 2009, 802 of 2009, 1960 of 2009; 5343 of 2011, 5344 of 2011, 5345 of 2011, 5346 of 2011, 5347 of 2011, 5280 of 2011, 5348 of 2011, 2124 of 2011 and 5585 of 2011 filed by the assessee.