JUDGMENT : Deepak Roshan, J. Since both the writ petitions arises out of a common order passed by the Commercial Taxes Tribunal, Jharkhand as such, they are taken up together and disposed of by this common order. 2. The writ application being W.P.(T) No. 3022 of 2017 has been preferred by the petitioner-company for quashing/setting aside the order dated 24.03.2017 for the assessment year 2008-09 whereas W.P.(T) No. 3172 of 2018 pertains to the assessment year 2009-10, passed in Revision Case No. JR 82 of 2012 and Revision Case No. JR 83 of 2012 respectively by the Commercial Taxes Tribunal, Jharkhand wherein order dated 30.10.2012 passed by the Commissioner of Commercial Taxes, Jharkhand has been confirmed. 3. The Case of the Petitioner is that the Petitioner-Company is engaged in production and supply of gases like, Oxygen, Nitrogen and Argon gases for industrial and medical use and the present writ petitions relate to one of its manufacturing unit situated at Jamshedpur in the State of Jharkhand. The petitioner, pursuant to two separate agreements vide agreements dated 3rd June, 1996 and 28th June 2002, established two units for meeting the requirement of continuous supply of Oxygen, Nitrogen and Argon gases to Tata Steel Ltd. Under the aforesaid agreements entered by the petitioner with Tata Steel Ltd., petitioner was required to install and operate its own air separation plant and ancillary equipments for supply of Oxygen, Nitrogen and Argon gases to Tata Steel Ltd. which is engaged in manufacturing of Iron and Steel products, having its works situated at Jamshedpur in the State of Jharkhand and having requirement of continuous supply of aforesaid industrial gases for enhancing the performance of its blast furnace producing hot metal, steel melting shops producing steel, etc. 4. The further case of the petitioner-company is that pursuant to the aforesaid agreements, Tata Steel Ltd. provided land adjacent to its works to the petitioner, wherein the petitioner erected its industrial unit for production of gases having capacity of 1290 Tonne per day (for short ‘TPD’) and 225 TPD respectively. Apart from establishing its industrial unit at the site adjacent to Tata Steel Ltd. at Jamshedpur, the petitioner also constructed pipelines from its industrial unit to the industrial unit of Tata Steel Ltd., which is owned, operated and maintained by the petitioner itself; and, further, industrial unit for production of gases is also owned, operated and maintained by the petitioner. Apart from establishing its industrial unit at the site adjacent to Tata Steel Ltd. at Jamshedpur, the petitioner also constructed pipelines from its industrial unit to the industrial unit of Tata Steel Ltd., which is owned, operated and maintained by the petitioner itself; and, further, industrial unit for production of gases is also owned, operated and maintained by the petitioner. It is an admitted fact that aforesaid two units were installed by the petitioner at its own cost pursuant to the agreements entered with Tata Steel Ltd. for ensuring continuous supply of gases to Tata Steel Ltd. The meter for measuring the quantity of gases supplied was installed in the periphery of the premises of the industrial unit of the Petitioner and not in the premises of Tata Steel Ltd. Even metering unit and the meter for recording supply of gases to Tata Steel Ltd. are owned, operated and maintained by the petitioner. 5. Under the agreements, the petitioner supplies industrial gases to Tata Steel Ltd. from its air separation plant set-up in its industrial unit, through pipelines and the petitioner recovers two distinct and separate charges from Tata Steel Ltd., namely (1) gas price for supply of gases, and (2) facility charge for provisions, operation and maintenance of the plant, the pipelines and the meter installed at the petitioner’s works. 6. Under the agreements, separate considerations have been provided towards supply of gases and provisions have been made for payment of facility charge at fixed rate per month. A perusal of the clauses of the agreements would reveal that a base monthly facility charge was determined under the agreement, which was to be paid by Tata Steel Ltd. to the petitioner irrespective of supply of gases by the petitioner to Tata Steel Ltd. except in cases of Force Majeure, where due to default on the part of the petitioner, supply of gases could not be undertaken. The said facility charge under the agreement is being recovered by the petitioner from Tata Steel Ltd. by raising advance monthly bills and, as already stated above, irrespectively of the fact whether gases were purchased by Tata Steel Ltd. or not during the month concerned and irrespective of the quantum of purchases, the facility charge amount was payable to the petitioner. The said amounts towards facility charge were not dependent upon the sale or supply of gases and were recovered from the buyer i.e. Tata Steel Ltd. irrespective of supply of gases. 7. It is a specific case of the petitioner is that it has discharged its liability of payment of value added tax (VAT) on the consideration received for supply of gases and no VAT amount was leviable and/or charged from the petitioner prior to the present assessment years in dispute on the amount of facility charge recovered by it from Tata Steel Ltd. for providing facilities mentioned aforesaid. 8. However, an inspection was carried out in the premises of the 22nd Petitioner on May, 2010, wherein the inspecting team enquired about non-payment of VAT on facility charge bills from the petitioner and, during the course of inspection, the inspecting team recommended for initiation of proceedings under Section 40(2) of the JVAT Act, 2005 by suggesting, inter alia, that the amount of facility charge should be treated as an ‘additional consideration of sale’ and since the petitioner has not discharged the liability of VAT on the amount of facility charge realized by it, the same amounts to suppression of facts. 9. Pursuant to the said inspection, notices were issued to the petitioner-company by the office of the Deputy Commissioner of Commercial Taxes, Jamshedpur Circle and the petitioner filed its reply before the said authority denying its liability for payment of VAT on “facility Charge”. However, the respondent-Deputy Commissioner of Commercial Taxes, Jamshedpur circle, in exercise of the power under Section 40(2) of the JVAT Act, levied VAT on the amount of facility charge realized by the petitioner, @ 4% thereupon and further levied interest @ 2% for delayed payment of tax. Even penalty was imposed upon the petitioner in exercise of the power under Section 40(2) of the JVAT Act. The petitioner, being aggrieved by the said order, preferred suo-moto revision applications before the Commissioner of Commercial Taxes, Jharkhand which were registered as Revision Case Nos. C.C.(S) 698 of 2011 and C.C.(S) 699 of 2011. Even penalty was imposed upon the petitioner in exercise of the power under Section 40(2) of the JVAT Act. The petitioner, being aggrieved by the said order, preferred suo-moto revision applications before the Commissioner of Commercial Taxes, Jharkhand which were registered as Revision Case Nos. C.C.(S) 698 of 2011 and C.C.(S) 699 of 2011. Vide common order dated 30th October, 2012, the said suo-moto revision applications preferred by the petitioner were dismissed by the Commissioner of Commercial Taxes, Ranchi, against which the petitioner preferred two separate revision applications before Commercial Taxes Tribunal, Jharkhand, which were registered as JR-82 of 2012 and JR-83 of 2012, pertaining to the financial years 2008-09 and 2009-10 respectively. The said revision applications were adjudicated and decided by passing a common Order dated 24th March, 2017, whereby the said revision applications were dismissed by learned Commercial Taxes Tribunal, Jharkhand, Ranchi, which is assailed in the present writ applications before us. 10. Mr. Sumeet Gadodia, learned counsel for the petitioner submitted that the learned Tribunal has erred both in law and in facts by declaring that ‘facility charge’ received by the petitioner is an additional consideration for sale and would be, thus, covered by the definition of ‘sale price’ as contained in section 2(xlviii) of the JVAT Act, 2005. Learned counsel for the petitioner referred to various clauses of the agreement and contended, inter alia, that the amount of “facility Charges” being realized by the petitioner from its customers cannot be treated to be a ‘sale consideration for gases’ but, in fact, it is the charges realized by the petitioner for providing facility of continuous supply of gases in a gaseous form. It has been submitted that the petitioner-company supplies industrial gases primarily in three forms namely,-- (i) Supply of gas in liquid form in gas cylinders. (ii) Gases in liquid form through tankers, stored in customer’s premises in vacuums insulated storage tanks; (iii) Gases in gaseous form through pipelines. 11. It has been submitted that so far as supply of gases through gas cylinders, the petitioner used to realize rental for gas cylinders which were sought to be taxed by the Central Excise authority by considering it to be ‘additional consideration of supply of gases’. However, the said issue was set at rest by the decision of the Hon’ble Supreme Court rendered in the case of Collector of Central Excise, Madras Vs. However, the said issue was set at rest by the decision of the Hon’ble Supreme Court rendered in the case of Collector of Central Excise, Madras Vs. M/s. Indian Oxygen Ltd. reported in 1988 (4) SCC 139 , wherein it was held that rental shall not form part of the sale consideration. 12. It has been further submitted that so far as supply of gases in liquid form through tankers, which are stored in the premises of the buyer in vacuum insulated storage tanks (VIST), the petitioner provides facility to its respective customers for erecting and maintaining the VIST, and realized facility charge which has no relation to the sale of gases. It has been submitted that, ordinarily, it is the duty of the buyer of the petitioner to construct and maintain the VIST storage tanks in its premises, but due to hazardous nature of the gases, customer of the petitioner requested the petitioner to construct the storage tanks in the buyer’s premises and to maintain the said tanks. The Petitioner, for the said facility provided to its buyer, charges “facility charge”, which is nothing but the cost of investment made by the petitioner on the construction of VIST at the buyer premises and other equipments including cost of maintenance. The said amount of facility charge realized by the petitioner has no relation with the sale of gases and the amount realized towards facility chares has nothing to do with the sale of gases for which separate consideration is being charged by the petitioner. 13. It has been further submitted that so far as 3rd mode of supply of gases is concerned, the said gases are supplied in gaseous form through the facility of pipelines and the said pipelines are erected, installed and maintained by the petitioner and the amounts realized as facility charge is pertaining to recovery towards cost of investment and maintenance of pipelines and other equipments. 14. Mr. Gadodia, further submitted that Tata Steel Ltd., being a huge industry, was under requirement of continuous supply of gases which could have been achieved only through supply of gases through pipelines. In order to meet its huge requirement of supply of gases, Tata Steel Ltd. was ordinarily required to construct its own air separation plant along with allied equipments and pipelines, etc. to ensure continuous supply of gases in gaseous form to its industrial unit. In order to meet its huge requirement of supply of gases, Tata Steel Ltd. was ordinarily required to construct its own air separation plant along with allied equipments and pipelines, etc. to ensure continuous supply of gases in gaseous form to its industrial unit. However, instead of constructing its own air separation plant, allied equipment and pipelines, Tata Steel Ltd. entered into agreement with the petitioner for installation of the aforesaid plant over the land adjacent to the industrial unit of Tata Steel Ltd. by the petitioner. Accordingly, under the agreement, two separate charges were prescribed, one being the ‘facility charges’ which accounted for reimbursement of the cost of investment undertaken by the petitioner on installation of industrial unit including operation and maintenance of the plant, pipelines and meters. The other charges stipulated in the agreement was the gas price which was payable on supply of gases. According to Mr. Gadodia, the amount realized towards facility charge has nothing to do with the sale of gases; and both are two distinct and separate charges realized by the petitioner from its customer Tata Steel Ltd. 15. It has been further submitted that, exactly, similar issue arising out of the same agreements came for consideration by Central Excise authority, wherein the amount of facility charge was treated to be an additional consideration for sale and excise duty was sought to be levied thereupon in terms of Section 4 of the Central Excise Act 1944. It is submitted that the said issue was initially adjudicated by Central Excise and Service Tax Appellate Tribunal (for short ‘CESTAT’), Kolkata and vide its Judgment and order dated 8th November, 2004, it was held by learned CESTAT, Kolkata that facility charge were payable by the buyer even when there was no sale during the month to the buyer concerned and it was categorically held that facility charge realized by the petitioner-company cannot be treated as an additional consideration for sale for the purpose of computing assessable value of gases for levy of excise duty. It was further submitted that the said decision of learned CESTAT, Kolkata, reported in (2005) 183 ELT 475 was followed by the subsequent decision of learned CESTAT, Kolkata passed in Central Excise Appeal No. EDM-126/05 dated 31.01.2008, wherein again levy of central excise duty on facility charge by treating it to be an additional consideration of sale was set aside by learned CESTAT, Kolkata. Counsel for the petitioner further submits that the said order passed by learned CESTAT, Kolkata was subject matter of challenge before the Hon’ble Supreme Court in Civil Appeal No. 5689 of 2008, wherein Hon’ble Supreme Court, vide its Judgment and order dated 28th July, 2009, was pleased to dismiss the appeal filed by the Revenue and was pleased to hold that facility charge realized by the petitioner-company cannot be computed as ‘additional consideration for sale’ for the purpose of computing it in the assessable value of gases. 16. It was further submitted that learned Tribunal, despite the aforesaid authoritative pronouncement of the Hon’ble Supreme Court, has wrongly distinguished the said Judgment by merely stating, inter alia, that the said Judgment has been rendered in the matter pertaining to central excise and not sales tax. 17. It was further submitted that learned Commercial Taxes Tribunal, while holding that facility charge would form part of the ‘Sale Price’ was primarily influenced by the fact that the amount of facility charge is nothing but cost of manufacture of gases and, thus, would be deemed to be part of ‘Sale Price’ of gases. It was submitted that learned Tribunal clearly erred in law by holding that since facility charge is the cost of manufacture of gases, it would form part of sale price of gases and has not appreciated the decision of the Hon’ble Apex Court relied upon by the petitioner in the case of Moriroku UT India (P) Ltd. Vs. State of Uttar Pradesh, reported in (2008) 4 SCC 548 . Lastly, it has been submitted on behalf of the petitioner that “Explanation-II” to the definition of ‘Sale Price’ as contained under Section 2(xlviii) of the JVAT Act is not applicable in the facts and circumstances of the present case as facility charge itself cannot be treated to be the consideration towards sale of gases. Lastly, it has been submitted on behalf of the petitioner that “Explanation-II” to the definition of ‘Sale Price’ as contained under Section 2(xlviii) of the JVAT Act is not applicable in the facts and circumstances of the present case as facility charge itself cannot be treated to be the consideration towards sale of gases. In this connection, reliance has been placed to the decision of the Hon’ble Madras High Court in the case of State of Tamil Nadu –Vs-Srinivasa Timber Depot, reported in (1974) 33 STC 423 (Madras) as well as the decision rendered by the Hon’ble Supreme Court against the aforesaid Judgment of the Madras High Court in the case of “State of Tamil Nadu –Vs-Srinivasa Timber Depot, reported in (1991) 80 STC 393 (S.C.)”. The petitioner has further relied upon the decision of Messrs. Srinivasa Timber Depot-Vs-Deputy Commercial Tax Officer, Choolai Division Madras & ors., reported in (1969) 828 L.W. 147 (Mad.) to demonstrate that Explanation-II to the definition of ‘Sale Price’ is not applicable in the facts and circumstances of the present case. The petitioner further relied upon the decision of the Hon’ble Supreme Court in the case of DJ Malpani –Vs-Commissioner of Central Excise, Nasik, reported in 2019 SCC Online SC 496” to contend, inter alia, that the term ‘transaction value’ occurring in the central excise enactment is much wider in scope than the definition of sale price as contained under the JVAT Act. By relying upon the aforesaid decision of the Hon’ble Supreme Court, it was contended that in the said decision, the amount charged towards “Dharmada” separately at the time of sale of goods was sought to be included in the transaction value for levy of excise duty on the sale of goods. However, the Hon’ble Supreme Court in the said Judgment has held that any amount paid at the time of sale transaction for the purpose other than the price of goods cannot form part of the transaction value; and has held in the said decision that the amount charged towards ‘Dharmada’ cannot be computed as the consideration received towards sale of goods. On the strength of the said Judgment, it has been submitted that facility charge is an amount charged other than the price of the goods i.e. gases and, hence, cannot form part of ‘Sale Price’ as said payment of facility charge cannot be treated as a consideration of goods. 18. On the strength of the said Judgment, it has been submitted that facility charge is an amount charged other than the price of the goods i.e. gases and, hence, cannot form part of ‘Sale Price’ as said payment of facility charge cannot be treated as a consideration of goods. 18. The Respondent-State heavily rely on the order passed by the learned Tribunal and submitted that the order passed by the learned Tribunal is based on correct finding and law as the Tribunal has rightly considered the entire agreement as a whole and provided due interpretation of the same. It was further submitted that the petitioner company cannot claim that the facility charge and the gas price are distinct and separate from each other as the contractual provision itself clarify that there is inter-dependency of the gas prices with the facility charges and both are linked to each other. In order to substantiate the above contention the respondent State draw our attention towards several clauses of the agreements; i.e. clause 1.2, clause 1.16, clause 2.4, clause 2.5, clause 4.3, clause 4.5, clause 9.4, clause 11, clause 11.1.A, clause 11.1.B, clause 11.2.A, clause 11.2.B, clause 11.3.A, clause 11.3.B, clause 11.3.C & clause 16: 19. Learned Counsel for the respondent State further argued that the submission of the petitioner Company is based upon reading contract terms in isolation. However, it is the settled principle of law that the terms of an agreement have to be read in whole in consonance with each other. The petitioner Company has relied upon individual clause and on basis of such clause tried to show that the gas prices and facility charges are independent and distinct from each other. However, a proper perusal of the agreement between the petitioner Company and the TATA Steel Ltd. shows that gas charge and facility charge are linked to each other. 19. It was further submitted that clause 11.3.A clearly stipulates that the base price of the facility charge shall be Rs. 76 Lakhs. However, 60 per cent of this base price shall vary in direct proportion to the wholesale price index. 19. It was further submitted that clause 11.3.A clearly stipulates that the base price of the facility charge shall be Rs. 76 Lakhs. However, 60 per cent of this base price shall vary in direct proportion to the wholesale price index. Further, gas price of various gases such as Oxygen, Nitrogen and Argon are also variable and is based on price variation on power cost which is clearly stipulated in clause 11.1.A, 11.1.B, 11.2.A and 11.2.B. The relation between the facility charge and the price of gas makes it clear that the facility charge as payable is dependent upon the price of gas so supplied. It was further submitted that as the facility Charge is dependent upon the wholesale price index, it cannot be said that facility charge is only being charged as against maintenance of the plant but also includes components of the cost and sale price of the gases so being supplied by the petitioner company. 20. The learned Counsels for the Respondent State referred the judgment passed in the case of BOC India Ltd. v. Commissioner of Commercial Taxes, (2016) 93 UPTC 326 , following the mandates as laid down in the case of Hindustan Sugar Mills v. State of Rajasthan (AIR 1978 SC 271) wherein the central issue was as to whether ‘facility Charge’ should be a part of sales price or not. The Hon’ble Apex Court held that as the facility charge is for supply of gases and is charged from the customer, the same is subject to ‘sale price’ under the West Bengal Vat Act, which is paripassu to the definition of sale price in JVAT, 2005. 21. It has been further submitted that apart from almost 90 per cent of the gases so being supplied to Tata Steel, the petitioner company also supplies gases to other companies such as Usha Martin, Tata Motors etc. The same is stated in the inquiry report as attached by the petitioner as Annexure-3 & 4 of their writ petition. The rate of supply of gases to these companies is variable and higher than that of Tata Steel. Therefore, it can be safely inferred that certain aspect of price is charged from Tata Steel under the head of facility charge and hence the same is subject to JVAT as it amply falls under the definition of sales Price as stated in Section 2 (xlviii) of JVAT Act, 2005. Therefore, it can be safely inferred that certain aspect of price is charged from Tata Steel under the head of facility charge and hence the same is subject to JVAT as it amply falls under the definition of sales Price as stated in Section 2 (xlviii) of JVAT Act, 2005. 22. It has been further submitted that the payment of facility charge, in case Tata Steel fails to take supply, is only there as there are huge reserves of around 1500 tonnes of liquid Oxygen and 150 tonnes as liquid Nitrogen and 120 tonnes as liquid Argon has to be held as safety stock as envisaged in clause 5 of the agreement. Further, clause 2.5 also stipulates that the petitioner have agreed to hold upon 3500 tonnes of liquid Oxygen during repair and shutdown of BOCI plant.From this it is clear that the facility charge as taken by the petitioner during which the plant is shut is for the maintenance of such reserves and again the facility Charge depends upon the gases supplied as 60 per cent of the sale is variable and depends on wholesale price index. 23. We have carefully examined the rival contentions of the parties and have carefully perused the two agreements dated 3rd June, 1996 and 28th June, 2002. For the sake of ready reference, certain clauses of the agreement dated 3rd June, 1996 is quoted herein-under:- “1.2: Appointment Date means the date on which BOCL will be ready to supply the full supply of Oxygen, Nitrogen and Argon to TISCO on a continuous basis and the date from which TISCO shall start to pay the monthly facility charge. BOCL will designate this date by 90 days Advance notice in writing. BOCL will designate this date by 90 days Advance notice in writing. TISCO’s obligation to start the monthly facility charge to BOCL in terms of this definition will not however start if after designating this date BOCL fails to commence supply of gases to TISCO from the date so designated” “1.6: “Facility Charge” means the monthly charge paid by TISCO to BOCI in accordance with this Agreement, for the provision, operation and maintenance of the Plant, the Pipelines and the Meters.” “1.7“Gas Prices” mean the prices paid by TISCO to BOCI for Oxygen, Nitrogen and Argon gas supplies in accordance with this Agreement.” “1.16 “WPI” means the Wholesale Price Index for Manufactured Products (base 1981/82 = 100) as published by the Reserve Bank of India in its weekly bulletins, calculated as a simple arithmetic average of the indices for each week ending in a Month.” “2.4: For any planned repair and shutdown of BOCL’s Plant, BOCL shall give written notice of not less than 7 days to TISCO. During any shutdown or plant outage, Nitrogen (Low Pressure) (GN-PL) and Nitrogen (Medium Pressure) (GN-MP) will not be available. During shutdowns other that Major maintenance, TISCO’s demands of Oxygen, Nitrogen (High Pressure) (GNHP) and Argon shall continue to be met. “2.5: BOCL agrees to reserve up to a maximum of 3500 tonnes Oxygen liquid storage capacity for TISCO to meet agreed rates of demand during any planned repair and shutdown including Major Maintenance of BOCL’s Plant. Total Oxygen availability to TISCO during such period of Major Maintenance will be limited to 3500 tonnes. BOCL will use liquid Oxygen in the liquid Oxygen storage for the purpose of supplying its other requirements. However, BOCL will ensure a minimum safety stock of 1500 tonnes in the storage at any point of time, reserved for supply to TISCO. Nitrogen (High Pressure) (GN-HP) shall be supplied to the extent of only 350 tonnes during Major Maintenance but TISCO’s demand of Argon during major Maintenance shall continue to be met in full. However, BOCL will ensure a minimum safety stock of 1500 tonnes in the storage at any point of time, reserved for supply to TISCO. Nitrogen (High Pressure) (GN-HP) shall be supplied to the extent of only 350 tonnes during Major Maintenance but TISCO’s demand of Argon during major Maintenance shall continue to be met in full. “4.3: In the event of either party failing to supply or purchase at the minimum agreed average supply rate as stated above, other than during the periods of Major Maintenance, compensation for the quantity, falling short shall be paid by the defaulting party to the other at the rate of the gas price applicable at the relevant time, as mentioned in Clause 11 “4.5Since it is necessary for TISCO to ensure adequate and regular supply of gasses provided for in this Agreement, for the smooth operation of its Iron and Steel Works, in the event of continuous non-supply for over one month or irregular supply of gases for a period of over six months for reasons other than Force Majeure, TISCO may exercise an option to acquire the Plant and installations put up by BOCI by paying a consideration based on the value of the same prevailing at the time of acquisition as may be determined by mutual agreement between the parties.” “9.4: Meters for Power, Water and Steam-TISCO shall at its own cost provide meters for measuring supply of steam, water and electrical power to BOCL’s Plant and Charging for the same. BOCL will provide TISCO free access to the metering panels for joint inspection at all times” “11.PRICE Subject to the provisions of the following sub-clauses of this Clause 11, TISCO shall pay the following prices and charges to BOCI under this Agreement. 11.1.A For Oxygen supplies (unit charge): Sl. No. Rate of Supply Nm3 per hour Base Price Rs./NM3 Power Cost Rs/100 Nm3 per 1P/kWh. 1. Upto 29,000 1.50 0.650 2. Over 29,000 1.45 0.625 11.1.B Oxygen Gas Price Variation on Power Cost: The above prices for Oxygen supplies are based on a Power cost of Rs. 2.32 KWh. For any increase/decrease in the actual cost of power from the base rate, there will be a corresponding pro rata increase/decrease in the gas price applicable for the week, as per clause 11.1.A, per 1P/kWh Power Cost variation from the base rate. 11.2. 2.32 KWh. For any increase/decrease in the actual cost of power from the base rate, there will be a corresponding pro rata increase/decrease in the gas price applicable for the week, as per clause 11.1.A, per 1P/kWh Power Cost variation from the base rate. 11.2. A For Nitrogen and Argon supplies (unit charge): Nitrogen --High Pressure : Rs. 0.60 per Nm3 Nitrogen --Medium Pressure : Rs. 0.30 per Nm3 Nitrogen --Low Pressure : Rs. 0.05 per Nm3 Argon --: Rs. 5.00 per Nm3 11.2.B The gas prices for Nitrogen and Argon are based on a Power Cost of Rs. 2.31 per kWh. For every 1P/kWh increase/decrease in the actual Power Cost from this base rate there will be a corresponding pro-rata increase/decrease in the gas prices for Nitrogen and Argon as follows: Nitrogen – High Pressure : Rs. 0.20 per 100 Nm3 Nitrogen–Medium Pressure: Rs. 0.05 per 100 Nm3 Nitrogen-Low Pressure : Rs. 0.02 per 100 Nm3 Argon : Rs. 0.65 per 100 Nm3 11.3A In addition to the gas prices applicable for the volumes supplied to TISCO, BOCI shall be paid a Facility Charge by TISCO with a base value of Rs. 7,600,000 per month. Sixty percent (60%) of this base value shall vary in direct proportion to the WPI for the applicable month from a base figure of 296.4 (provisional) obtained for the month of January, 1996. 11.3.B The base monthly Facility Charge as set out in Clause 11.3.A herein above will be subject initially to variation in the following manner to take account of changes in currency exchange rates between the Indian Rupee and foreign currencies and in the rate of import duty payable from the following base rates, affecting the cost of the import content of BOCI’s Plant. The base rates for foreign currency exchange and import duty (excluding countervailing duty that may be set off against Excise Duty on the products manufactured from the Plant) are as follows: Pound Sterling - Rs. 56.70 French Franc - Rs. 7.29 Deutsch Mark - Rs. 25.13 US Dollar - Rs. 36.64 Swiss Franc- Rs. 30.80 Import Duty - 25% ad valorem of c.i.f. value If any of the Plant items is imported against a currency other than those mentioned above, the exchange rate for that currency in relation to the Pound Sterling shall be used Any imports by BOCI not specific to this project shall be excluded. 36.64 Swiss Franc- Rs. 30.80 Import Duty - 25% ad valorem of c.i.f. value If any of the Plant items is imported against a currency other than those mentioned above, the exchange rate for that currency in relation to the Pound Sterling shall be used Any imports by BOCI not specific to this project shall be excluded. For every Rs. 6,000,000 or part thereof variation in the actual c.i.g. of import content of the Plant from a base figure of Rs. 1,135 million, the base monthly Facility Charge shall correspondingly be varied pro rate by Rs. 62,500 per month. This variation shall be applicable for imports executed within 24 months from the date of this Agreement. 11.3.CThe monthly Facility Charge as mentioned above shall be payable to BOCI by TISCO at all times during the subsistence of the Agreement irrespective of whether or not there is any supply or uptake of gases by the parties hereto, except in a situation of Force Majeure condition affecting BOCI operations, in which case the monthly Facility Charge shall be payable by TISCO for a maximum period of one month in case the Force Majeure condition continued beyond one month.” “16: Force Majeure-In the event of either party hereto being prevented or hindered from performing any of its obligation under this Agreement as a result of any breakdown of or accident to machinery or equipment, damage to pipelines, failure of electrical or water supply, any act of God, flood, fire, accident, commotion, strike, lockout, any act of third party or of Government or any cause beyond its reasonable control, the affected party shall give immediate written notice to the other. During the continued existence of the effect of such events, the parties shall be excused from the performance of their obligation under this Agreement, other than in the case of payment by TISCO of the monthly Facility Charge which will continue to be paid as specified in Clause 11. During the continued existence of the effect of such events, the parties shall be excused from the performance of their obligation under this Agreement, other than in the case of payment by TISCO of the monthly Facility Charge which will continue to be paid as specified in Clause 11. However, if due to Force Majeure event affecting BOCL operations, BOCL is prevented from supplying the gases to TISCO, then the Facility Charge shall be payable by TISCO for a maximum period of one month in case the Force Majeure continues beyond one month” 24.From bare reading of the agreement dated 3rd June, 1996, it transpires that the Petitioner was required to install and operate its own air separation plant and ancillary equipment on a site adjacent to Tata Steel Works for supply of Oxygen, Nitrogen, and Argon gases. Further, in the agreement, two separate charges were specifically provided to be paid by Tata Steel Ltd. to the petitioner company namely ‘facility charge’ and ‘gas price’. It is contended by the learned counsel for the petitioner that the amount paid by Tata Steel Ltd. to the petitioner company towards facility charge was for the provision, operation and maintenance of the plant, pipelines and the meter. He heavily relied upon clause 11.3.C of the agreement which provides, inter alia, that the monthly facility chargeshall be paid at all times during the subsistence of the agreement irrespective of whether there is any supply or uptake of gases by the parties. However, it provided that if force majeure conditions are affecting the operation of the plant of the petitioner, then facility charge would be paid for a period of one month and thereafter facility charge shall not be paid. 25. We are not in agreement with the contention of the petitioner-counsel that the facility charge and the gas price are distinct and separate from each other as the contractual provision itself clarify that there is inter-dependency of the gas prices with the facility charges and both are linked to each other. 26. The submission of the petitioner company is based upon reading contract terms in isolation. However, it is the settled principle of law that the terms of an agreement have to be read in whole in consonance with each other. 26. The submission of the petitioner company is based upon reading contract terms in isolation. However, it is the settled principle of law that the terms of an agreement have to be read in whole in consonance with each other. The petitioner company has relied upon individual clauses and on basis of such clauses tried to demonstrate that the gas prices and facility charges are independent and distinct from each other. However, a proper perusal of the agreement between the petitioner company and the TATA Steel as a whole shows that gas charge and facility charge are linked to each other. Clause 11.3.A clearly stipulates that the base price of the facility charge shall be Rs. 76 Lakhs. However, 60 per cent of this base price shall vary in direct proportion to the wholesale price index. Further, gas price of various gases such as Oxygen, Nitrogen and Argon are also variable and is based on price variation on power cost. This term is stipulated in Clause 11.1.A, 11.1.B, 11.2.A and 11.2.B. The relation between the facility charge and the price of gas makes it clear that the facility charge as payable is dependent upon the price of gas so supplied. Further, as the facility charge is dependent upon the wholesale price index, it cannot be that facility charge is only being charged as against maintenance of the plant but also includes components of the cost and sale price of the gases so being supplied by the petitioner. 27. Further, as per the inquiry report, which is attached as annexure-3 and 4 to the writ petition, it transpires that apart from almost 90 per cent of the gases so being supplied to Tata Steel the petitioner company also supplies gases to other companies such as Usha Martin, Tata Motors etc. The rates of supply of gases to those companies are variable and higher than that of Tata Steel. Therefore, it can be safely inferred that certain aspect of price is charged from Tata Steel under the head of facility charge and hence the same is subject to JVAT as it amply falls under the definition of sales Price as stated in Section 2 (xlviii) of JVAT Act, 2005. 28. Therefore, it can be safely inferred that certain aspect of price is charged from Tata Steel under the head of facility charge and hence the same is subject to JVAT as it amply falls under the definition of sales Price as stated in Section 2 (xlviii) of JVAT Act, 2005. 28. In order to show that gas price and facility charge are distinct from each other, the petitioner has strongly relied on the point that facility charge is payable even when there is no supply of gases. In order to substantiate the same the petitioner company has relied upon clause 11.3.C of the agreement, wherein, it is stipulated that facility charge shall be payable irrespective of the fact that whether there is any supply or uptake of gases except in a situation of force majeure conditions affecting BOCI operation wherein the facility charge shall be payable by Tata for a maximum of 1 month. However this distinction cannot be brought forth only by reading 11.3C clause, rather a constructive reading of the entire Agreement has to be done. Clause 1.2 clearly stipulates that payment of facility charge shall not be done if the petitioner fails to supply gases after the appointment date. Further, clause 4.3 and 4.5 envisage a situation where either party fails to supply gases at the agreed minimum average supply rate then in such case TISCO shall be free to purchase gases from other party, the compensation of which shall be borne by petitioner. From this it is clear that facility charge is not payable when the supply of gas is interrupted by the petitioner and in other cases as against what is stated by the petitioner. Further, the payment of facility charge in case Tata Steels Ltd. fails to take supply, is only there as there are huge reserves of around 1500 tonnes of liquid Oxygen and 150 tonnes as liquid Nitrogen and 120 tonnes as liquid Argon has to be held as safety stock as envisaged in clause 5 of the agreement. Further clause 2.5 also stipulates that the petitioner company have agreed to hold upon 3500 tonnes of liquid Oxygen during repair and shutdown of BOCI plant. Further clause 2.5 also stipulates that the petitioner company have agreed to hold upon 3500 tonnes of liquid Oxygen during repair and shutdown of BOCI plant. Thus, it is clear that the facility charge as taken by the petitioner during which the plant is shut is for the maintenance of such reserves and again the facility charge depends upon the gases supplied as 60 per cent of the sale is variable and depends on wholesale price index. 29. We are conscious of the settled proposition of law that no contract or agreement can be interpreted by just taking into consideration few specific clauses. The agreement has to be read in whole. The same has been rightly held by the Ld. Tribunal in paragraph 20 of its order wherein the entire agreement has been read, understood and interpreted in its entirety. The submissions made by the petitioner show that facility charge has been created in order to circumvent the applicability of JVAT on the same amount. Any agreement made with the intent to evade taxes is in contradiction to Section 23 of the Indian Contract Act, 1872 and hence the same is void. The same was held in the case of Unitech Limited v. Union of India (2016) 2 SCC 569 . 30. The Hon’ble High Court of Calcutta in its judgment rendered in the case of BOC India Limited v. West Bengal Commercial Tax Appellate and Revisional Board, Kolkata Ors. reported in (2010) 34 VST 448 has dealt with a case, which is similar to the instant case filed here by the same Petitioner i.e. BOC India Ltd., pertaining to the applicability of sales tax on the ‘facility charge’ being taken by the Petitioner. The Hon’ble High Court of Calcutta after analyzing the definition of ‘Sale Price’ under the Bengal Finance (Sales Tax) Act, 1941 and relying on the decision of the Hon’ble Supreme Court rendered in the case of Black Diamond Beverages v. Commercial Tax Officer, (1997) 107 STC 219 (SC) concluded that “… the charges which has been paid by the consumer at the place of sale would be nothing but the sale price of the said goods.”. Accordingly, the Hon’ble High Court of Calcutta held that sales tax is payable on the facility charges being taken by the Petitioner. 31. Accordingly, the Hon’ble High Court of Calcutta held that sales tax is payable on the facility charges being taken by the Petitioner. 31. The aforesaid judgment of the Hon’ble High Court of Calcutta was challenged by the Petitioner, BOC India Limited, before the Hon’ble Supreme Court. The said case at the Hon’ble Supreme Court was registered as Civil Appeal No. 1799 of 2010. The Hon’ble Supreme Court, vide its order dated 03.02.2016, passed in Civil Appeal No. 1799 of 2010 decided the issue in favour of the revenue and dismissed the appeal of the Petitioner. In its said judgment the Hon’ble Supreme Court confirmed the order of the Hon’ble High Court of Calcutta after relying on its own judgment rendered in the case of Hindustan Sugar Mills v. State of Rajasthan & Ors., (1978) 4 SCC 271 . The Hon’ble Supreme Court in its aforementioned judgment rendered in Civil Appeal No. 1799 of 2010 in effect concluded and confirmed that the facility charges being taken by the Petitioner would attract sales tax. 32. In the instant case, the modus operandi of the petitioner is similar, wherein the products are supplied though pipelines installed and maintained by the petitioner and the measurement of the same is to be done jointly by both parties and it is only then, the sale is complete (clause-7 of the agreement). 33. It is also relevant to note the law laid down by the Hon’ble Supreme Court in its judgment rendered in the case of Black Diamond Beverages v. Commercial Tax Officer, (1997) 107 STC 219 (SC). The Hon’ble Supreme Court in its said judgment has held the following: “10. If, therefore, the first limb of Section 2(d) of the Act is similar to Section 2(p) of the Rajasthan Act, 1954, the question then is as to what was actually decided in Hindustan Sugar Mills case [ (1978) 4 SCC 271 : 1978 SCC (Tax) 225 : (1979) 43 STC 13 ] ? In that case, this Court held that this part of the definition of “sale price” meant the amount payable to a dealer as consideration for the sale of any goods. It was pointed out that the test was as to what was the consideration passing from the purchaser to the dealer for the sale of goods? In that case, this Court held that this part of the definition of “sale price” meant the amount payable to a dealer as consideration for the sale of any goods. It was pointed out that the test was as to what was the consideration passing from the purchaser to the dealer for the sale of goods? It was immaterial to inquire as to how the amount of consideration was made up, whether it included excise duty or sales or freight. “The only relevant question to ask is as to what is the amount payable by the purchaser to the dealer as consideration for the sale and not as to what is the net consideration retainable by the dealer”. It was further held that the concept of real price or actual price retainable by the dealer was irrelevant. Reference in that connection was made by this Court to what Goddard, L.J. stated in Love v. Norman Wright (Builders) Ltd. [(1944) 1 All ER 618 : 1944 KB 484] This Court then observed that if the dealer transported goods from his factory to his place of business and sold them at a price which was arrived at after taking into account “freight and handling charges” incurred by him in transporting the goods, then the said charges would obviously be part of the “sale price” because it would be payable by the purchaser to the dealer as part of the consideration for the sale of goods. It was also observed that the same would be the position even if the freight and handling charges were shown separately in the bill and added to the price of the goods, for the character of the payment would be the same. If on the facts, the “freight and handling charges” represented the expenditure incurred by the dealer in making the goods available to the purchaser at the place of sale, then those charges would contribute an addition to the cost of the goods to the dealer and would clearly be a component of the price charged from the purchaser. This Court held that the amount of “freight and handling charges” would be payable by the purchaser not under any statutory or other liability but as part of the consideration for the sale of the goods and would form part of “sale price”. This Court held that the amount of “freight and handling charges” would be payable by the purchaser not under any statutory or other liability but as part of the consideration for the sale of the goods and would form part of “sale price”. That is the ratio of Hindustan Sugar Mills case [ (1978) 4 SCC 271 : 1978 SCC (Tax) 225 : (1979) 43 STC 13 ] . In the discussion by this Court in the above case reference was made to the freight expenses of a dealer who transported goods from the factory to his place of business. But this does not mean that this Court did not intend that freight expenses up to the point of delivery were not to be included in “sale price”. As rightly pointed out by the Tribunal [in para 32(b) of the order], this Court had also referred in Hindustan Sugar Mills case [ (1978) 4 SCC 271 : 1978 SCC (Tax) 225 : (1979) 43 STC 13 ] (at p. 29 of STC : SCC p. 281) to the freight charges “at the place of sale”, which would clearly be referable to the freight charges up to the point of delivery”. 34. According to the aforesaid decisions of the Hon’ble Supreme Court, the test for determining what constitutes ‘sale price’, on which sales tax is payable, is as to what was the consideration passing from the purchaser to the dealer for the sale of goods and it is immaterial to inquire as to how the amount of consideration was made up, whether it included excise duty or sales or freight or any other charge. 35. In the instant case, the facility charge is a consideration passing from the purchaser (Tata Steel Limited) to the dealer (Linde India Limited) in relation to the sale of gases. According to the agreement, the freight charges are being taken for the provision, operation and maintenance of the plant, the pipelines and the meters. All the three constituents are important for selling gases by the petitioner to Tata Steel Limited and in their absence sale may not be complete. The plant is important for producing the saleable goods, the pipeline is important for transporting the saleable goods and the meter is important for calculating the total quantity of goods sold. All the three constituents are important for selling gases by the petitioner to Tata Steel Limited and in their absence sale may not be complete. The plant is important for producing the saleable goods, the pipeline is important for transporting the saleable goods and the meter is important for calculating the total quantity of goods sold. Accordingly, facility charges are directly relatable to sale of goods by the petitioner to Tata Steel Limited and is a consideration passing from Tata Steel Limited to the petition for sale of goods as also confirmed by the Hon’ble Supreme Court of India in its judgment dated 03.02.2016 passed in Civil Appeal No. 1799 of 2010 wherein this very Petitioner was the contesting party. 36. Further, it is also relevant to note that the Petitioner for the same goods i.e. gases which are being sold to purchasers other than Tata Steel Limited is not charging facility charges but the petitioner is charging higher sale price for the said goods. This indicates that where the facility charge is not charged separately by the petitioner the sale price of the goods is higher and accordingly it demonstrates that the facility charge is a part of sale price but charged separately to some customers and charged compositely to other customers by including the same into the sale price. 37. The definition of ‘Sale Price’ under the JVAT Act, 2005 is also important and the same also supports the case of the revenue that Facility Charge has to be included in the ‘Sale Price’. ‘Sale Price’ has been defined in Section 2 (xlviii) of the JVAT Act, 2005. The definition of Sale Price along with Explanation II is relevant for the instant case. The said definition along with Explanation II reads as under: "Sale Price" means the amount payable to a dealer as valuable consideration in respect of the sale or supply of goods, and shall not include tax paid or payable under this Act, by a person in respect of such sales….. Explanation II – Sale price shall include any amount charged by the dealer for anything done in respect of the goods at the time of, or before delivery thereof to the buyer;” 38. As per the aforementioned definition, “Sale Price” includes any amount charged by the dealer for anything done in respect of the goods. Explanation II – Sale price shall include any amount charged by the dealer for anything done in respect of the goods at the time of, or before delivery thereof to the buyer;” 38. As per the aforementioned definition, “Sale Price” includes any amount charged by the dealer for anything done in respect of the goods. Accordingly, in the instant case the facility charge is an amount charged by the dealer (the Petitioner herein) for operating and maintaining the plant, pipeline and meter which are used in respect of the gases sold by the petitioner. Thus, the sale price of the petitioner for selling gases to Tata Steel Limited would include ‘Facility Charge’. 39. The Petitioner has heavily relied on the judgment of the Hon’ble Supreme Court dated 28.07.2009 passed in Civil Appeal No. 5689 of 2008 wherein the Hon’ble Apex Court has held that the facility charge cannot be included in the assessable value for the purpose of imposing excise duty under the Central Excise Act. The ratio laid down in the said judgment is not applicable in the case of the petitioner since the issue here is of applicability of sales tax and not of excise duty. 40. The petitioner has also relied on the decision of Hon’ble Apex Court in the case of Moriroku UT India (P) Ltd. v. State of Uttar Pradesh reported in (2008) 4 SCC 548 . However, the same judgment itself has clarified the scope and applicability of both the taxes and held in the following manner: “23. On the other hand, excise duty is a levy on a taxable event of “manufacture” and it is calculated on the “value” of manufactured goods. Excise duty is not concerned with ownership or sale. The liability under the excise law is event based and irrespective of whether the goods are sold or captively consumed. Under the excise law, the liability is there even when the manufacturer is not the owner of raw material or finished goods (as in the case of job-workers). Excise duty, therefore, is independent of ownership [see Ujagar Prints (II) v. Union of India [ (1989) 3 SCC 488 : 1989 SCC (Tax) 469] ]. Therefore, for sales tax purposes, what has to be taken into account is the consideration for transfer of property in goods from the seller to the buyer. Excise duty, therefore, is independent of ownership [see Ujagar Prints (II) v. Union of India [ (1989) 3 SCC 488 : 1989 SCC (Tax) 469] ]. Therefore, for sales tax purposes, what has to be taken into account is the consideration for transfer of property in goods from the seller to the buyer. For this purpose, tax is to be levied on the agreed consideration for transfer of property in the goods and in such a case cost of manufacture is irrelevant. As compared to the sales tax law, the scheme of levy of excise duty is totally different. For excise duty purposes, transfer of property in goods or ownership is irrelevant. As stated, excise duty is a duty on manufacture” 41. Thus is ample clear that taxable event in case of ‘Central Excise’ and ‘Sales Tax’ is different. While ‘manufacture’ is the event in case of Central Excise; the taxable event in the case of VAT is ‘sale’. 42. Furthermore, as aforesaid, the Hon’ble Apex Court, in the case of BOC India Limited Vs. Commissioner of Commercial Tax and Ors., (Civil Appeal No. 1799 of 2010) has clarified that the VAT is leviable on facility charges. As the ‘facility charge’ is dependent upon the sale price of the product (Clause 11.3A), coupled with the fact that the sale is concluded after joint measurement by both parties, VAT is applicable on facility charge. The petitioner cannot evade his liability by changing the scope and the nature of the words as used in the agreement as any agreement made with the intention to evade taxes is against public police and hence void as held in the case of Unitech Limited Vs. Union of India reported in (2016) 2 SCC 569 . 43. In view of the aforesaid discussions and judicial pronouncements, we hold and declare that “Facility Charge” levied by the petitioner company is towards consideration of sale of gases and is exigible to value added tax and there is no error in the common order dated 24.03.2017 passed by the Commercial Taxes Tribunal, Jharkhand in Revision Case No. JR 82 of 2012 and Revision Case No. JR 83 of 2012 wherein order dated 30.10.2012 passed by the Commissioner of Commercial Taxes, Jharkhand has been confirmed, and the same are confirmed. 44. As a result both the writ applications are dismissed on contest. Consequently, the pending interlocutory applications stand disposed of.