- (1.) The question raised for consideration in these petitions is whether manufacture, supply and installation of lifts are to be treated as "sale" or "works contract". As the writ petitions filed by the Petitioners have raised important questions of law, the matters have been directed to be placed before a three-Judges Bench. Heard Mr. Harish N. Salve, learned Senior Counsel for the Petitioner and Mr. Anoop Choudhary, learned Senior Counsel for the State of Andhra Pradesh and learned Counsel for the States of Gujarat, Uttar Pradesh and Tamil Nadu.
(2.) In State of Andhra Pradesh v. Kone Elevators (India) Limited, 2005 3 SCC 389 (SC), it was held that such a contract constituted a "sale" and does not amount to "works contract" and the element of service provided by the vendor of the elevator was negligible. The learned Senior Counsel submitted that having regard to the nature of the contracts, the said view was not correct. Our attention was drawn to series of decisions rendered by this Court in State of Rajasthan and Anr. v. Man industrial Corporation Limited, Jaipur, 1969 AIR(SC) 1245 ; State of Rajasthan and Ors. v. Nenu Ram, 1970 26 STC 268(SC) and Vanguard Rolling Shutters and Steel Works v. Commissioner of Sales Tax, 1977 AIR(SC) 1505 , which take a contrary view. The said decisions have not been noticed in Kone Elevators (India) Limited's case.
(3.) The learned Counsel appearing for the States of Gujarat, Uttar Pradesh, Andhra Pradesh and Tamil Nadu submitted that the decision in Kone Elevators (India) Limited's case was correctly decided and placed reliance on Hindustan Shipyard Limited, Visakhapatnam v. State of Andhra Pradesh, 2000 AIR(SC) 2411 (SC). They also submitted that the petitions Under Article 32 of Constitution of India are not maintainable. The Respondents would be at liberty to raise these contentions also when the matters are finally heard. Having regard to the issues involved in these matters and apparent conflict in the views expressed by three-Judges Bench of this Court, we refer these matters to a Constitution Bench. Registry will take further steps to post before the Constitution Bench.;