JUDGMENT : ASHOK KUMAR, J. 1. Heard Sri Kushagra Srivastava, learned counsel for the applicant and Sri B.K. Pandey, learned Standing Counsel. 2. This revision under Section 58 of U.P. Value Added Tax (hereinafter referred to as the Act) is directed against the order of the Commercial Tax Tribunal dated 23.03.2011 relating to the assessment year 2004-05. 3. Brief facts of the case are that the applicant is a transporter and is engaged in transporting the petroleum products, which are purchased by the parties from Hindustan Petroleum Corporation Limited. 4. As per the agreement executed in between the applicant and Hindustan Petroleum Corporation Limited there are certain conditions stipulated namely that the contractor will operate the tank trucks for haulage and deliver of bulk dangerous/ non dangerous petroleum products of the corporation as and when required by the corporation. 5. Condition Nos. IV, V, VIII and XV provides as follows:- "(iv) Use tank trucks, for the transportation of the products of the corporation, which are fit for carrying the products and which shall be maintained in good conditions and working order and shall confirm with respect to the shall norms specified by the Corporation. The contractor shall not use the said tank truck for any purpose other than for carrying out this agreement. It is distinctly understood that the corporation has not guaranteed an any minimum turnover, where her daily monthly or annually or during the duration of this agreement and the contractor will not be entitled to demand idle charges or minimum turnover charges or any other loss or damage of whatsoever nature against the corporation for non-utilization of the said tank truck's wholly or in part. (v) Get the tank truck's used for the transportation of the products calibrated from time to time at his/their cost as required under the laws for the time being in...... as enacted by the Central Government or the State Government, and also certified by the controller of explosives, The necessary certificates issued by the authorities for the above should always be available with tank trucks for inspection. (viii) Bear and pay for the entire operational costs of the tank trucks used for the transportation of the products with will included and be deemed always to include, inter alia the following: (a) Provision for salary and other emolument for crew and other necessary benefits for the staff. (viii) Bear and pay for the entire operational costs of the tank trucks used for the transportation of the products with will included and be deemed always to include, inter alia the following: (a) Provision for salary and other emolument for crew and other necessary benefits for the staff. (b) Cost of the fuels and lubricating oils required for operation of the tank trucks. (c) Maintenance and repair cost of the tank trucks. (xv) Be responsible for any non-delivery or short delivery of the products at the destination and shall be bound to reimburse to the corporation to the extent of the shortages of the products at the corporation's for ex installation/depot price. However, the corporation shall have the right and authority to deduct the cost of products out of the amount payable by the corporation under clause 3(ii) hereunder, or separately debit the Carrier, as the case may be." 6. The contention of the counsel for the applicant is that the control and possession of the truck tanker remained with the applicant and that the maintenance, salary of the driver and every employees, insurance and other expenses are borne by the applicant alone. 7. The Hindustan Petroleum Corporation was only to pay the freight charges as per the mileage of the truck tanker. 8. The assessing authority has passed an assessment order dated 29.03.2007 by which he has imposed the tax under Section 3-F of the Act to the tune of Rs. 7,90,95/-. The appeal was filed under Section 55 before the Joint Commissioner (Appeals), Allahabad which was rejected by the Joint Commissioner (Appeals) vide order dated 02.09.2009. 9. Against the order of the Joint Commissioner (Appeals) the Second Appeal was filed by the revisionist being Appeal No. 511 of 2009. The Tribunal vide its order dated 23.03.2011 has affirmed the orders passed by the authorities below and has confirmed the imposition of tax under Section 3-F. 10. Having heard the counsel for the parties, I have perused the order of the Tribunal and the orders of the authorities below. 11. Section 3-F of the Act reads as follows:- "Section 3-F. Rate of tax on the right to use any goods or goods involved in the execution of a works contract. Having heard the counsel for the parties, I have perused the order of the Tribunal and the orders of the authorities below. 11. Section 3-F of the Act reads as follows:- "Section 3-F. Rate of tax on the right to use any goods or goods involved in the execution of a works contract. Notwithstanding anything contained in Section 3-A, or Section 3-AAA or Section 3-D, the turnover relating to the business of transfer of the right to use any goods for any purpose or of transfer of the property in goods involved in the execution of a works contract shall be determined in the manner prescribed and shall be liable to tax at such rate not exceeding fifteen percent, as the State Government may, by notification, declare, and different rates may be declared for different goods or different classes of dealers." 12. The bare perusal of Section 3-F of the Act shows that the provision of Section 3-F is applicable only in cases where there is transfer of right to use the goods. 13. Similar question came up for consideration in Kando Transport & Others Vs. S.T.O. Assessment Unit, Barbil & others,1992 43 STL 67 Orissa. In this case also the petitioner entered into a contract with M/s Minerals & Metals Trading Corporation of India Ltd. For transportation work including loading, unloading and stacking. The contention of the transporter was that there was no transaction of sale and that the contract was for purely labour and service. The department, however, contended that "hire charges" received by the transporter come within the definition of "sale price". Considering the enlarged definition of 'sale' in view of the Constitutional amendment, the Orissa High Court held as follows: "In order to decide whether a transaction is of 'sale', the determinative factor is whether transfer or right of user is involved. By way of illustration we may indicate that if 'A' allows his vehicle to be used by 'B' for a consideration, and the vehicle is placed at the control, custody and possession of 'B' it may be a case of transfer of the right to use the vehicle for any purpose. Where however, the control, custody, and possession over the vehicle remains with 'A' notwithstanding the fact that certain amounts were received as hire charges no transfer of the right to use is involved." 14. Where however, the control, custody, and possession over the vehicle remains with 'A' notwithstanding the fact that certain amounts were received as hire charges no transfer of the right to use is involved." 14. In Rashtriya Ispat Nigam Ltd. vs. Commercial Tax Officer, Company Circle, Visakhpatnam, (1990) 77 STC 182 Andhra Pradesh, the petitioner which owned the Visakhapatnam Steel Project, for the purpose of the Steel project, allotted difference parts of the project work to contractors. To facilitate the execution of work by the contractors with the use of sophisticated machinery, the petitioner had undertaken to supply the machinery to the contractors for the purpose of being used in the execution of the contracted works of the petitioner and received charges for the same. The respondents made a provisional assessment in view of the enlarged definition of 'sale'. Then the Andhra Pradesh High Court held that under the agreement, the effective control of the machinery, even while the machinery was in the use of the contractor, was that of petitioner company. The contractor' was not free to make use of the same for other works or move it out during the period the machinery was in his use. Therefore, the contractor was entitled to make use of the machinery for purpose of execution of the works of the petitioner and there was no transfer of the right to use it as such in favour of the contractor. This is how the court held that the hire charges collected by the petitioner from the contractors were not exigible to sales tax. To come to this conclusion, the Andhra Pradesh High Court relied on Corpus Juris Secondum (Vol. 87) page 892 which emphasised that the essence of transfer is passage of control over the economic benefits of property which results in terminating rights and over relations in one entity and creating them in another. While construing the word "transfer" due regard must be had to the thing to be transferred. A transfer of the right to use the goods necessarily involves delivery of possession by the transferor to the transferee. Delivery of possession of a thing must be distinguished from its custody. It is not uncommon to find the transferee of goods in possession while transferor is having custody. 15. A transfer of the right to use the goods necessarily involves delivery of possession by the transferor to the transferee. Delivery of possession of a thing must be distinguished from its custody. It is not uncommon to find the transferee of goods in possession while transferor is having custody. 15. Against the aforesaid decision of the Andhra Pradesh High Court, the State of Andhra Pradesh filed Special Leave Petition before the Apex Court in the case of State of Andhra Pradesh and another vs. M/s Rashtriya Ispat Nigam Ltd., (2002) 2 JT 493 SC. Apex Court had affirmed the order of the Andhra Pradesh High Court and held as follows; "The High Court after scrutiny and close examination of the clauses contained in the agreement and looking to the agreement as a whole, in order to determine the nature of the transaction, concluded that the transactions between the respondent and contractor did not involve transfer of right to use the machinery in favour of the contractors and in the absence of satisfying the essential requirement of Section 5-E of the act, i.e., transfer of right to use machinery, the hire charges collected by the respondent from the contractors were not exigible to sales tax. On a careful reading and analysis of the various clauses contained in the agreement and in particular, looking to Clauses 1,5,7,13 and 14, it becomes clear that the transaction did not involve transfer of right to use the machinery in favour of contractors. The High Court was right in arriving at such a conclusion. In the impugned order, it is stated and rightly so in our opinion, that 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 move it out during the period the machinery was in his use; the condition that the contractor would be responsible for the custody of the machinery while it was on the site, did not militate against 'respondent's possession and control of the machinery." 16. A similar question came up for consideration before the Division Bench of this Court in the case of M/s Ahuja Goods Agency and another vs. State of U.P. and others, 1997 11 NTN 484. A similar question came up for consideration before the Division Bench of this Court in the case of M/s Ahuja Goods Agency and another vs. State of U.P. and others, 1997 11 NTN 484. Petitioner received transportation charges from a distillery in connection with the transportation of Indian made foreign liquor from the distillery to various Government bonded warehouses. Question for consideration was whether the transportation charges was liable to tax under Section 3-F of the act. The contention of the petitioner was that the transportation charges were paid for service under the agreement and there was no transfer of right to use the vehicle. The Division Bench examined the agreement and held that the truck to be used for carrying the goods will continue to remain in the custody of the drivers employed by the owners of the trucks. The distillery could have used the vehicle only for the purpose specified goods and not for any other purposes. The transit risk was of the petitioner and not of the distillery. It was the duty of the transporter to abide by all the laws relating to the motor vehicle and the excise. From these factors, it is manifest that there was no transfer of possession even of the vehicle, which were being used for carrying the goods. On these facts Division bench held that in the absence of transfer of possession of vehicle there was no transfer of right to use the goods and the provisions of Section 3-F of the act shall not applicable. 17. In view of the ratio laid down by the aforesaid decisions of the High Court and the Apex Court, it is clear that for the transfer of right to use the goods and to invoke the provisions of Section 3-F of the act, it is necessary that there should be transfer of effective control of the goods in favour of the party. 18. In the case of Bharat Sanchar Nigam Ltd. and another vs. Union of India and others, 2006 6 JT 114 SC, Apex Court held that for the transfer of right to use the goods, goods must be at a deliverable stage and at some stage it should be delivered. 19. 18. In the case of Bharat Sanchar Nigam Ltd. and another vs. Union of India and others, 2006 6 JT 114 SC, Apex Court held that for the transfer of right to use the goods, goods must be at a deliverable stage and at some stage it should be delivered. 19. This Court in the case of CTT vs. M/s Jamuna Prakash Jaiswal, Allahabad,2006 UPTC 285 held that unless possession and control of the goods is transferred there can not be transfer of right to use the goods under Section 3-F of the act." 20. Similar question came up for consideration before this Bench in Trade Tax Revision No. 1200, 1201, 1202 and 1205 of 1999 the Commissioner of Trade Tax U.P., Lucknow Vs. Nand Transport Company Ujhani, Budaun and this Court vide order and judgment dated 14.09.2007 has held that unless possession and control of the vehicle is transferred there can not be transfer of right to use the goods under Section 3-F of the Act. 21. In view of the above mentioned law laid down in the aforesaid decision by the Hon'ble Apex Court as well as by this Court, seeing the facts of the present case, it is crystal clear that for transfer of right to use the goods and to invoke the provisions of Section 3-F of the act, the delivery of the possession is sine qua non. 22. In view of the above, the revision petition filed by the assessee-revisionist is allowed. The order of the Tribunal dated 23.03.2011 is set aside. 23. In the result, the revision petition is allowed. No order as to costs.