- (1.) THIS application for revision is directed against the order of the learned Deputy Commissioner, Sales Tax (Appeals) Jaipur dated 4. 4. 1961, whereby he partially accepted the applicant's appeal against the assessement order passed by the Sales Tax Officer, Jaipur on 27. 6. 1960. The applicant firm are "producers, rollers of steel casement sections, engineers and fabricators of steel doors, windows and sashes". THIS firm had contracted with the Executive Engineer Ajmer Central Division for "providing and fixing" windows of four different specifications in the office of the Accountant General, Jaipur by submitting a tender which was accepted. The total amount quoted for "providing and fixing" these windows was Rs. 23,480. 00 plus Rajasthan sales tax in the amount of Rs. 733. 75, making a total of Rs. 24,213. 75. The amount of sales tax included in the invoice was disallowed by the Executive Engineer. It was stipulated by the applicant in his tender that should there be a change in the current price of mild steel billets, a proportionate change in the cost of rolled sections used in the fabrication will be made in the quotation. The learned Sales Tax Officer assessed the applicant to sales tax for the entire amount of the contract money received by it, whereas the learned Deputy Commissioner directed that sales tax should be assessed only on the amount arrived at after excluding labour charges for fixing the windows. It is the contention of the applicant firm that its contract was an entire and indivisible contract which was in the nature of a works contract, that the windows never passed as movable property to the Executive Engineer but became a part of the building wherein they were fixed, and that as such no sale took place which could be deemed to be liable to tax. The applicant firm has relied on the judgment of the Supreme Court in State of Madras Vs. Gannon Dunkerley and Co. reported at page 353 of S. T. C. Volume IX. It has also sought support from a number of other rulings we shall deal with presently. The principle that is laid down by the Supreme Court in State of Madras Vs. Gannon Dunkerley is that in a building contract which is one, entire, and indivisible, there is no sale of goods and it is not within the competence of the Legislature to impose a tax on the supply of the materials used in such a contract treating it as a sale. It has to be seen whether the contract in the present case is a building contract, for only in that event will the dictum laid down by the Supreme Court will apply. The nature of the contract has been explained in the appellate order of the learned Deputy Commissioner which says that the windows were fabricated in the applicant's factory and fixed in the building of the Office of the Accountant General at Jaipur. The applicant is by no means a building contractor of the type of M/s Gannon Dunkerly and Co. It did not contract for the construction of a building into which it had to work some materials. It therefore, cannot be said that the doors fabricated by the applicant at its factory became the property of the Executive Engineer on the theory of accretion.
(2.) IT is now to be examined whether the property in the windows passed as movables or otherwise. In their judgment in State of Madras Vs. Gannon Dunkerley and Co. , the Supreme Court have approvingly quoted" Love Vs. Normal "wright (Builders) Ltd. " (page 384 of S. T. C IX) wherein it was held that a contract to make and fix curtains was a contract of sale though work and labour were involved in the making and fixing. The contract that was the subject matter of that case was to supply black-out curtains and curtain rails in a number of buildings. Their Lordships of the Supreme Court observed that in that case "there was no question of an agreement of supply of materials as parcel of a contract to deliver a chattel; the goods to be supplied were the curtains and rails which were the subject matter of the contract itself. " In our view the contract in the case before us is also of such a nature and the windows supplied passed as movables despite the fact that these windows were also fixed by the applicant. The mere fact that they did not separately quite the labour charges for fixing the windows doesn't change the nature of the contract which was one of supply of windows fabricated at its Factory. Certainly the applicants cannot be allowed to evade payment of sales tax by not quoting separately for the labour charges for fixing the windows which would be but a small proportion of the value of the total transaction. In this view it was quite in order for the the learned Dy. Commissioner to direct the learned Sales Tax Officer to ascertain the labour charges for fixing the windows and deduct this amount from the total amount received for the contract of providing and fixing windows for the purposes of determining taxable turnover of the applicant. IT will be recalled that the applicant firm had itself stipulated that the prices of the windows would be subject to modification in the event of a change in the market price of steel billets. A building or works contract is seldom made subject to such a condition, and possibility of such variation repels the contention that the contract is an entire and indivisible whole. In taking this view we find support in "the Guntur Tobacco Ltd. Guntur Vs. the Government of Andhra" (STC XII page 668 ). We now proceed to deal with the various rulings relied on by the applicant which we think do not at all help him. The first case is Carl Still Vs. State of Bihar (STC XII page 449 ). In this case the contract was for the installation of a coke oven battery and by products plant for an all inclusive price. Certainly, the "providing and fixing" of window is very different from a contract of this nature and magnitude. The other cases are S. T. C. IX page 987, S. T. C. X page 154, S. T. C. X page 170 and S. T. C. XI page 278. In these cases the contracts were for the repair of a car in the service department of a motor works shop or the re-treading of tyres, or for dyeing in which packing materials were used for packing the stuff that was dyed, or for embroidery work on the material supplied by customers. In all the four cases it was held that no sales tax was chargeable for the materials used in connection with the services rendered. But in the present case before us the applicant did not perform a contract for the supply of a service so as to enable him to claim exemption from tax on the materials used in connection with these services. The result is that this application for revision is rejected and the appellate order of the learned Deputy Commissioner is upheld. .;