advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, August 12, 2016

whether iron and steel reinforcements of cement concrete that are used in buildings lose their character as iron and steel at the point of taxability, that is, at the point of accretion in a works contract.=claimed exemption for iron and steel goods - held not entitled = we are concerned with Rule 6(4)(m) of the Karnataka Sales Tax Rules, 1957. “Rule 6(4): 6. DETERMINATION OF TOTAL AND TAXABLE TURNOVER: (1)……. ……. (4) In determining the table turnover, the amount specified in clause (a) to (p) shall, subject to the conditions specified therein, be deducted from the total turnover of a dealer as determined under clauses (a) to (e) of sub-Rule (1). (a)….. (b)…. ….. (m) In the case of works contract specified in Serial Numbers 1,2,3,4,5,7,8,9,10,11,12,17,26,27,35,36,40 and 42 of the Sixth Schedule; (i) all amounts received or receivable in respect of goods other than the goods taxable under sub-section (1-A) or (1-B) or Section 5 which are purchased form registered dealers liable to pay tax under the Act and used in the execution of works contract in the same form in which such goods are purchased. (ii) …… …….EXPLANATION-III For the purpose of sub-rule (4), the expression ‘in the same form’ used in sub-clause (i) of clause (m) shall not include such goods which, after being purchased, are either consumed or used in the manufacture of other goods which in turn are used in the execution of works contract.”= the appellant is engaged in works contracts of fabrication and creation of doors, window frames, grills, etc. in which they claimed exemption for iron and steel goods that went into the creation of these items, after which the said doors, window frames, grills, etc. were fitted into buildings and other structures. On facts, therefore, we find that the High Court’s judgment is correct and does not need to be interfered with inasmuch as the iron and steel goods, after being purchased, are used in the manufacture of other goods, namely, doors, window frames, grills, etc. which in turn are used in the execution of works contracts and are therefore not exempt from tax.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.4149 OF 2007

SMT. B. NARASAMMA                       …APPELLANT

                                   VERSUS

DEPUTY COMMISSIONER COMMERCIAL
TAXES KARNATAKA & ANR.                ...RESPONDENTS

                                    WITH

                        CIVIL APPEAL NO.4318 OF 2007

                        CIVIL APPEAL NO.4319 OF 2007

                       CIVIL APPEAL NO. 7400  OF 2016
                (ARISING OUT OF SLP(CIVIL) NO.15253 OF 2015)

                    CIVIL APPEAL NOS.  7401-7872 OF 2016
             (ARISING OUT OF SLP(CIVIL) NOS.18646-19117 OF 2015)

                     CIVIL APPEAL NOS. 7873-7916 OF 2016
             (ARISING OUT OF SLP(CIVIL) NOS.10081-10124 OF 2015)


                               J U D G M E N T
R.F. Nariman, J.

1.    Leave  granted  in  SLP(C)  Nos.15253/2015,  18646-19117/2015,  10081-
10124/2015.

2.    This group of appeals concerns the  rate  of  taxability  of  declared
goods – i.e. goods declared to be of special importance under Section 14  of
the Central Sales Tax Act, 1956.  The question that has to  be  answered  in
these appeals is whether iron and steel reinforcements  of  cement  concrete
that are used in buildings lose their character as iron  and  steel  at  the
point of taxability,  that  is,  at  the  point  of  accretion  in  a  works
contract.  All these appeals come from the State of  Karnataka  and  can  be
divided into two groups – one group  relatable  to  the  provisions  of  the
Karnataka Sales Tax Act, 1957 and post 1.4.2005, appeals that are  relatable
to the Karnataka Value Added Tax Act, 2003.  The facts in these appeals  are
more or less similar. Iron and Steel products are used in the  execution  of
works contracts for reinforcement of cement, the  iron  and  steel  products
becoming part of pillars, beams, roofs, etc. which  are  all  parts  of  the
ultimate immovable structure that is the building or other structure  to  be
constructed.

3.    Before coming to the submissions of learned counsel for  the  parties,
it  is  necessary  to  first  set  out  the  relevant  provisions   of   the
Constitution, the Central Sales Tax  Act  and  the  two  Karnataka  Acts  in
question.

4.    Article 286(3) of the Constitution reads as follows:-

“Article 286. Restrictions as to imposition of tax on the sale  or  purchase
of goods
xx xx xx
(3) Any law of a State shall, in so far as it  imposes,  or  authorises  the
imposition of,
(a) a tax on the sale or purchase of goods declared by Parliament by law  to
be of special importance in inter State trade or commerce; or
(b) a tax on the sale or purchase of  goods,  being  a  tax  of  the  nature
referred to in sub clause (b), sub clause (c) or sub clause  (d)  of  clause
29 A of Article 366, be subject  to  such  restrictions  and  conditions  in
regard to the system of levy, rates  and  other  incidents  of  the  tax  as
Parliament may by law specify.”


5.    Section 14 of the Central Sales Tax Act, insofar as it is relevant  to
the present case reads as follows:

“Section-14

Certain goods to be of special importance in inter-State trade or commerce.-
 It is hereby declared that the following goods are  of  special  importance
in inter-State trade or commerce:-

(iv)    iron and steel, that is to say,-

[pig iron, sponge iron  and]  cast  iron  including  [ingot  moulds,  bottom
plates], iron scrap, cost iron scrap, runner scrap and iron skull scrap;

Steel semis (ingots, slabs, blooms and billets of all qualities, shapes  and
sizes);

Skelp bars, tin bars, sheet bars, hoe-bar and sleeper bars;

Steel bars, rounds, rods, squares, flat, octagons and  hexagons,  plain  and
ribbed or twisted, in coil form as well as straight lengths;

steel structurals (angles, joists, channels, tees, sheet piling sections, Z-
sections or any other rolled sections);

sheets, hoops, strips and skelp, both black and  galvanized,  hot  and  cold
rolled plain and corrugated, in all qualities, in straight  lengths  and  in
coil form, as rolled and in riveted condition;

Plates both plain and chequered in all qualities;

Discs, rings, forgings and steel castings;

Tools, alloy and special steels of any of the above categories;

Steel melting scrap  in  all  forms  including  steel  skull,  turnings  and
borings;

Steel tubes,  both  welded  and  seamless,  of  all  diameters  and  lengths
including tube fittings;

Tin-plates, both hot dipped and electrolytic and tin free plates;

Fist plate bars, bearing plate bars, crossing   sleeper bars,  fish  plates,
bearing plates, crossing sleepers  and  pressed  steel  sleepers--heavy  and
light crane rails;

Wheels, tyres, axles and wheels sets;

Wire rods and wires—rolled, drawn, galvanized, aluminized, tinned or  coated
such as by copper;

Defectives,  rejects,  cuttings,  or  end  pieces  of  any  of   the   above
categories;]









Section 15



Restrictions and conditions  in  regard  to  tax  on  sale  or  purchase  of
declared goods within a State.

Every sales tax law of a State shall, in so far as it imposes or  authorizes
the imposition of a tax on the  sale  or  purchase  of  declared  goods,  be
subject to the following restrictions and conditions, namely:

The tax payable under that law in respect of any sale or  purchase  of  such
goods inside the State shall not exceed [five per  cent.]  of  the  sale  or
purchase price thereof [***];”



6.    By the 46th Amendment of  the  Constitution,  Article  366  (29A)  was
added, by which it became possible by a  deeming  fiction  to  tax  sale  of
goods involved in a works  contract.   Declared  goods  were  taxable  under
Section 5(4) of the Act, which is set out hereunder:

         “Section 5(4)

Notwithstanding anything contained in sub-section  (1)  or  Section  5-B  or
Section 5-C a tax under this Act shall be levied in respect of the  sale  or
purchase of any of the declared goods mentioned in column (2) of the  Fourth
Schedule at the rate and only at the point specified  in  the  corresponding
entries of columns (4) and (3) of the said Schedule on the dealer liable  to
tax under this Act on his taxable turnover of  sales  or  purchase  in  each
year relating to such goods:”

The Karnataka Sales Tax Act was amended  to  tax  goods  involved  in  works
contracts. Taking advantage of the  constitutional  amendment,  Section  5-B
was inserted in the Karnataka Sales Tax Act, 1957.  This  Section  reads  as
follows:-

“Section 5-B: Levy of tax on transfer  of  property  in  goods  (whether  as
goods or in some other forms) involved in the execution of works  contracts.
Notwithstanding anything contained in sub-section (1) or sub-section (3)  or
sub-section (3-C) of Section 5, but subject to sub-section (4), (5)  or  (6)
of the said Section, every dealer shall pay for each year, a tax under  this
Act on his taxable turnover of transfer of property  in  goods  (whether  as
goods or in some other form) involved in the  execution  of  works  contract
mentioned in column (2) of the Sixth Schedule at the rates specified in  the
corresponding entries in column (3) of the said Schedule.”



7.    The Fourth Schedule of the said Act, which deals with  declared  goods
in respect of which a single point tax is leviable under Section 5(4)  reads
as follows:

“Act 3 of 1983 (From 1-11-1982)

Sl No    Description of the  Point of levy      Period           Rate

   Goods                                 for which     of tax

                                         applicable

1               2                       3             4       5

2.    “Iron and steel, that        is to say,-”

[(a)] (i) pig iron and cast  iron  including  ingot          moulds,  bottom
plates                   -do-          From 1-11-82   4%

(ii) steel semis (ingots,
slabs, blooms and billets
of all qualities, shapes
and  sizes)                                    -do-           From   15-7-75
4%


(iii) skelp bars, tin bars, sheet bars, hoe-bars and sleeper bars;

(iv) steel bars (rounds, rods, squares, flats, octagon and  hexagons,  plain
and ribbed or twisted, in coil form as well as straight lengths);

(v)  steel  structurals  (angles,  joists,  channels,  tees,  sheet   piling
sections, Z sections or any other rolled sections);

(vi)  sheets, hoops, strips and skelp, both black and  galvanized,  hot  and
cold rolled, plain and corrugated, in all  qualities,  in  straight  lengths
and in coil form, as rolled and in riveted condition;

(vii)  plates both plain and chequered in all qualities;

(viii) discs, rings, forgings and steel castings;      sales  by  the  first
or the earliest of the successive dealers in the state liable to  tax  under
this Act.

(ix) tool, alloy and special steels of any of the above categories;

         Act 30 of 1975 (15-7-75 to 31-10-82)

(x) steel melting scrap in              -do- 15.7.75 to  4%
     All forms including steel                     31.10.82
     skull turnings    and borings;


 8.   Similarly, the Sixth Schedule, which is to be read with  Section  5-B,
insofar as it is relevant, reads as under:-



Sl.  No.      Description  of  works                      period  for  which
      Rate of

                                Contact                           applicable
    Tax

      1                                2                                   3
      4

6.           Civil works  like  construction             1-4-86  to  31-3-95
    Five per cent

              of building, bridges,  roads,  etc.        1-4-95  to  31-3-91
  Eight per cent



9.    Post  1.4.2005,  the  Karnataka  Value  Added  Tax  Act,  2003,  taxed
declared goods and works contracts generally as follows:-

Section 4 - Liability to tax and rates thereof.

     Every dealer who is or is required to be  registered  as  specified  in
Sections 22 and 24, shall be liable to pay tax, on his taxable turnover,

(a) in respect of goods mentioned in,-

(i)   Second Schedule, at the rate of one per cent,

(ii)  Third Schedule, at the rate of four  per  cent  in  respect  of  goods
specified in serial number 30 and five per cent in respect of  other  goods,
and

(iii) Fourth Schedule, at the rate of twenty per cent.

(b)  in respect of.-

(i)   cigarettes, cigars, gutkha and other manufactured tobacco at the  rate
of fifteen per cent;

(ii)  other goods at the rate of thirteen and one half per cent.

(c)   in respect of transfer of property in goods (whether as  goods  or  in
some other form) involved in the execution of works  contract  specified  in
column (2) of the Sixth Schedule, subject to  Sections  14  and  15  of  the
Central Sales Tax  Act,  1956  (Central  Act  74  of  1956),  at  the  rates
specified in the corresponding entries in column (3) of the said Schedule.

Third Schedule:

30.  Declared goods as specified in Section 14  of  the  Central  Sales  Tax
Act, 1956 (Central Act 74 of 1956)



Sixth Schedule:

|23.       |All other works contracts not |Fourteen and   |
|          |specified in any of the above |one half per   |
|          |categories including composite|cent           |
|          |contracts with one or more of |               |
|          |The above categories Fourteen |               |
|          |and one half per cent         |               |





10.   We have in the main to deal with the impugned judgment dated  1.9.2006
in Civil Appeal No.4318 of 2007,  and  judgment  dated  12.8.2004  in  Civil
Appeal No. 4149 of 2007 in  favour  of  Revenue,  and  a  detailed  impugned
judgment which is challenged by the State of Karnataka dated  10.12.2013  in
State of Karnataka and etc. etc. v. M/s.  Reddy  Structures  Pvt.  Ltd.  and
etc. etc. in Civil Appeals arising out of SLP (Civil) Nos.18646-19117/2015.

11.   Shri N. Venkatraman led the arguments  on  behalf  of  the  assessees,
after whom Shri  S.K.  Bagaria,  Shri  K.V.  Viswanathan,  and  some  others
followed.  According to learned counsel, the present matter is concluded  by
two judgments of this Court, namely, Builders' Assn. of India  v.  Union  of
India, (1989)  2  SCC  645,  and  Gannon  Dunkerley  and  Co.  v.  State  of
Rajasthan, (1993)  1  SCC  364.   The  detailed  judgment  dated  10.12.2003
correctly extracts all the relevant passages from  the  aforesaid  judgments
to reach the conclusion that under the Karnataka Value Added Tax Act,  2003,
the iron and steel products that are reinforced for cement concrete used  in
buildings and structures, remains exactly the same goods  at  the  point  of
taxability – that is, the point of accretion, and  that  mere  cutting  into
different shapes and bending does not make these items lose  their  identity
as declared goods.  Therefore, according to learned  counsel,  only  tax  at
the rate of 4% can be levied, and not the higher rate levied in  respect  of
civil construction works generally.  Other  learned  counsel  more  or  less
argued along the same lines as Shri N.  Venkatraman,  only  adding  that  it
cannot be said that the identity of the iron and steel goods had changed  at
the point of taxability, and they cited several judgments to show that  mere
cutting and shaping of these products would not amount to “manufacture”  and
hence the very goods that were declared goods  alone  were  taxable  at  the
rate of 4%, both under the Karnataka Sales Tax Act as well as the  Karnataka
Value Added Tax Act, 2003.

12.   Shri K.N. Bhat, learned senior advocate appearing  on  behalf  of  the
State, relied strongly on State of Tamil Nadu v.  M/s.  Pyare  Lal  Malhotra
and Others, (1976) 1 SCC 834, in order to buttress his submission  that  the
iron and steel products did not continue as  iron  and  steel  products  but
somehow  became  different  goods  at  the  point  of  accretion  and  that,
therefore, they could be taxed  at  the  higher  rate  applicable  to  civil
constructions generally. He did not dispute the law laid  down  in  the  two
Supreme Court judgments cited  by  Shri  N.  Venkatraman,  and  very  fairly
submitted that if the iron and steel products continued  as  declared  goods
then even though they were in a works contract  they  were  subject  to  the
drill of Section 15 of the Central Sales Tax Act,  and  would  therefore  be
chargeable at 4% if it were found that the said products continue to  remain
the same.

13.   Having heard learned counsel for the parties, we are  of  the  opinion
that Shri N. Venkatraman is right.  The matter is  no  longer  res  integra.
Two  important  propositions  emerge  on  a  conjoint  reading  of  Builders
Association and M/s. Gannon Dunkerley (supra).  First, that works  contracts
that are liable to be  taxed  after  the  46th  Constitution  Amendment  are
subject to the drill of Article 286(3) read with Section 15 of  the  Central
Sales Tax Act, namely, that they are chargeable at a single point and  at  a
rate not exceeding 4% at the relevant time.  Further,  the  point  at  which
these iron and steel products are taxable is the point  of  accretion,  that
is, the point of incorporation into the building or structure.

14.   The relevant paragraphs from these two decisions, therefore,  need  to
be set out.  In Builders Association (supra), this Court held:
“We are of the view that all transfers, deliveries  and  supplies  of  goods
referred to in clauses (a) to (f) of clause (29-A) of  Article  366  of  the
Constitution are subject to the restrictions  and  conditions  mentioned  in
clause (1), clause (2) and sub-clause (a) of clause (3) of  Article  286  of
the Constitution and the transfers and deliveries that take place under sub-
clauses  (b),  (c)  and  (d)  of  clause  (29-A)  of  Article  366  of   the
Constitution are subject to an  additional  restriction  mentioned  in  sub-
clause (b) of Article 286(3) of the Constitution. [para 32]

In Benjamin's Sale of Goods (3rd Edn.) in para 43 at  p.  36  it  is  stated
thus:
“Chattel to be affixed to land or another chattel.—Where work is to be  done
on the land of the  employer  or  on  a  chattel  belonging  to  him,  which
involves the use or affixing of materials belonging to the person  employed,
the contract will ordinarily be one for work and materials, the property  in
the latter passing to the employer by accession and not under  any  contract
of sale. Sometimes, however, there may instead be a sale of an article  with
an additional and subsidiary  agreement  to  affix  it.  The  property  then
passes before the article is affixed, by virtue  of  the  contract  of  sale
itself or an appropriation made under it.”

In view of the foregoing statements  with  regard  to  the  passing  of  the
property in goods which  are  involved  in  works  contract  and  the  legal
fiction created by clause (29-A) of Article 366 of the  Constitution  it  is
difficult to agree with the contention of the  States  that  the  properties
that are transferred to the owner in the execution of a works  contract  are
not the goods involved in  the  execution  of  the  works  contract,  but  a
conglomerate, that is the entire  building  that  is  actually  constructed.
After the 46th Amendment it is not possible to accede to  the  plea  of  the
States that what is transferred in a works contract  is  the  right  in  the
immovable property.

The 46th Amendment does no more than making it possible for  the  States  to
levy sales tax on the price of goods and materials used in  works  contracts
as if there was a sale of such goods and materials.

 We are surprised at the attitude of the States which have put  forward  the
plea that on  the  passing  of  the  46th  Amendment  the  Constitution  had
conferred on the States a larger  freedom  than  what  they  had  before  in
regard to their power to levy sales tax under entry 54 of  the  State  List.
The 46th Amendment does no more than making it possible for  the  States  to
levy sales tax on the price of goods and materials used in  works  contracts
as if there was a sale of such goods and materials. We  do  not  accept  the
argument that sub-clause (b) of Article 366(29-A) should be  read  as  being
equivalent to a separate entry in List II of the  Seventh  Schedule  to  the
Constitution enabling  the  States  to  levy  tax  on  sales  and  purchases
independent of entry 54 thereof. As the Constitution exists today the  power
of the States to levy taxes on sales and purchases of  goods  including  the
“deemed” sales and purchases of goods under clause (29-A) of Article 366  is
to be found only in entry 54 and not outside it. We  may  recapitulate  here
the observations of the Constitution Bench in the  case  of Bengal  Immunity
Company Ltd. [AIR 1955 SC 661 : (1955) 2 SCR 603 :  (1955)  6  STC  446]  in
which this Court has held that  the  operative  provisions  of  the  several
parts of Article 286 which imposes restrictions on the levy of sales tax  by
the States are intended to deal with different topics and one could  not  be
projected or read into another and each one of them has to be  obeyed  while
any sale or purchase is taxed under entry 54 of the State List.

We, therefore, declare that sales tax laws passed  by  the  legislatures  of
States levying taxes on the transfer of property in goods (whether as  goods
or in some other form) involved in the execution of  a  works  contract  are
subject to the restrictions and conditions mentioned in each clause or  sub-
clause of Article 286 of the Constitution. We, however, make it  clear  that
the cases argued before and considered by us relate to  one  specie  of  the
generic  concept  of  “works  contracts”.  The  case-book  is  full  of  the
illustrations of  the  infinite  variety  of  the  manifestation  of  “works
contracts”. Whatever might be  the  situational  differences  of  individual
cases, the constitutional limitations on the taxing power of  the  State  as
are applicable to “works contracts” represented by “building  contracts”  in
the context of the expanded concept of “tax  on  the  sale  or  purchase  of
goods” as constitutionally defined under Article  366(29-A),  would  equally
apply to other species of “works contracts” with the  requisite  situational
modifications.”      (Paras 38-41)

In M/s. Gannon Dunkerley (supra), this Court held:
“Apart from the limitations referred to above which  curtail  the  ambit  of
the legislative competence of the State Legislatures, there  is  clause  (3)
of Article 286 which enables Parliament to make a law  placing  restrictions
and conditions on the exercise of the legislative power of the  State  under
Entry 54 in State List in regard to the system  of  levy,  rates  and  other
incidents of tax. Such a law may be in relation to  (a)  goods  declared  by
Parliament by law to be  of  special  importance  in  inter-State  trade  or
commerce, or (b) to taxes of the nature referred to in sub-clauses (b),  (c)
and (d) of clause (29-A) of Article 366. When  such  a  law  is  enacted  by
Parliament the legislative power of the States under Entry 54 in State  List
has to be exercised subject to the restrictions and conditions specified  in
that  law.  In  exercise  of  the  power  conferred  by  Article   286(3)(a)
Parliament has enacted Sections 14 and 15 of  the  Central  Sales  Tax  Act,
1956. No law has, however, been made by Parliament in exercise of its  power
under Article 286(3)(b).

For the same reasons Sections 14 and 15 of the Central Sales Tax  Act  would
also be applicable to the deemed sales resulting from transfer  of  property
in goods involved in the execution of a works contract and  the  legislative
power under Entry 54 in State List will have to be exercised subject to  the
restrictions and conditions prescribed in the said provisions in respect  of
goods that have been declared to be of  special  importance  in  inter-State
trade or commerce.

So also it is not permissible for the State Legislature to impose a  tax  on
goods declared to be of special importance in inter-State trade or  commerce
under Section 14 of the Central Sales Tax Act except in accordance with  the
restrictions and conditions contained in Section 15  of  the  Central  Sales
Tax Act.

Since the taxable event is the transfer of property  in  goods  involved  in
the execution of a works contract and the said transfer of property in  such
goods takes place when the goods are incorporated in the  works,  the  value
of the goods which can constitute the measure for the levy of  the  tax  has
to be the value of the goods at the time of incorporation of  the  goods  in
the works and not the cost of acquisition of the goods  by  the  contractor.
We are also unable to accept the contention urged on behalf  of  the  States
that in addition to the value of the goods involved in the execution of  the
works contract the cost of incorporation of the goods in the  works  can  be
included in the measure for levy of tax. Incorporation of the goods  in  the
works forms part of the contract  relating  to  work  and  labour  which  is
distinct  from  the  contract  for  transfer  of  property  in  goods   and,
therefore, the cost of incorporation of the goods in  the  works  cannot  be
made a part of the measure for levy of tax contemplated by  Article  366(29-
A)(b).”    [paras 31, 37, 41 and 45]

15.   At this juncture, it is important to note  the  fact  situation  in  a
typical case before us. The Karnataka Appellate Tribunal in an  order  dated
18.10.2010 in Civil Appeals arising out of SLP(C) Nos. 18646-19117  of  2015
narrates the factual position thus:
“Different types of steel bars/ rods of  different  diameters  are  used  as
reinforcement (like TMT bars, CTD bars etc). The  reinforcement  bars/  rods
need to be bent at the  ends  in  a  particular  fashion  to  withstand  the
bending moments and flexural shear.  The main reinforcement bars/ rods  have
to be placed  parallely  along  the  direction  of  the  longer  span.   The
diameters of such main reinforcement rods/bars and the distance between  any
two main reinforcement bars/rods is calculated  depending  on  the  required
loads to be carried by the reinforced cement concrete structure to be  built
based on various engineering  parameters.   At  right  angles  to  the  main
reinforcement  bas/rods,  distribution  bars/rods  of   appropriate   lesser
diameters  are  placed  and  the  intersections  between  the   distribution
bars/rods and main reinforcement bars/rods are tied  together  with  binding
wire.  The tying is not for the purposes of fabrication but is to  see  that
the iron bars or rods are not displaced  during  the  course  of  concreting
from the assigned positions as per the drawings.   Welding  of  longitudinal
main bars and transverse distribution bars is not done.   In  fact,  welding
is  contra-indicated  because  it  imparts  too   much   rigidity   to   the
reinforcement which hampers the capacity of the roof structure to  oscillate
or bend to  compensate  varying  loads  on  the  structure  besides  welding
reduces the  cross  section  of  the  bars/  rods  weakening  their  tensile
strength. The reinforcements are placed and  tied  together  in  appropriate
locations in accordance with the detailed principles and drawings  found  in
standard bar bending schedules  which  lay  down  the  exact  parameters  of
interspaces  between  bars/  rods,  the  required  diameters  of  the  steel
reinforcement bars/ rods and contain the required engineering  drawings  for
placement of bars in a particular manner.  The  placement  of  reinforcement
bars/ rods for  different  structures  is  done  under  the  supervision  of
qualified bar tenders and site  engineers  who  are  well  versed  with  the
engineering aspects related to steel reinforcement for  creating  reinforced
cement concrete of desired load bearing capacities.

      The appellant company has submitted general  photographs  showing  the
progress of the work of placement and binding of  reinforcement  bars/  rods
at its work sites.  The said photographs also establish the  correctness  of
the aforesaid findings relating to placement and binding together  of  steel
reinforcement bars/ rods before such  bars/  rods  are  embedded  in  cement
concrete mixtures. In another case  in  STA  No.1328/2008  decided  by  this
Tribunal on 10.2.2009 (in the case of Sri J. Bhaskar Rao)  which  is  relied
on by the appellant, in the agreement between the Government  of  Karnataka,
Minor Irrigation  Department  and  the  said  appellant  (who  was  a  civil
contractor engaged in the civil construction  activity),  specification  for
placement and binding together of reinforcement bars/ rods  were  stipulated
by the Government of Karnataka as follows:

“Reinforcing steel shall conform accurately to the dimensions given  in  the
bar bending schedules shown on the relevant drawings.  Bars  shall  be  bent
cold to the specific shape and dimensions or as directed by the Engineer in-
charge using a proper bar bender,  operated  by  hand  or  power  to  attain
proper radii of bends.”

“PLACING OF REINFORCEMENTS:

      All reinforcement bars shall be accurately placed  in  exact  position
shown on the drawings and shall be securely held in position during  placing
of concrete by annealed  binding  wire  not  less  than  1mm.  in  size  and
conforming to IS;280, and by using stays, blocks or metal  chairs,  spacers,
metal hangers, supporting wires or other approved  devices  at  sufficiently
close intervals.  Bars will not be  allowed  to  end  between  supports  not
displaced during concreting or any other operation over the work ….  As  far
as possible, bars of full length  shall  be  used.   In  case  this  is  not
possible, overlapping bars shall not touch each other, but be kept apart  by
25mm, or 1 (1/4) times the maximum size of the  coarse  aggregate  whichever
is greater, by concrete between them.  Where not feasible, overlapping  bars
shall be bound with annealed steel  wire,  not  less  than,  1mm.  thickness
twisted tight. The overlaps  shall  be  staggered  for  different  bars  and
located at points along the span where neither shear nor bending  moment  is
maximum.”

      The above specification which are standard for all civil  construction
works also confirms the correctness of the findings recorded  by  us  supra.
Welding of bars/ rods  reduces  their  cross  section  and  to  that  extent
decreases the tensile strength of the  reinforcement  bars/  rods  defeating
the very purpose of steel reinforcement  in  cement  concrete.   When  bars/
rods are just joined together loosely by  the  use  of  binding  wires,  the
elasticity  of  the  steel  bar/  rod  is  in  no  way  hampered  and   each
reinforcement bar/ rod acts independently.  By the combined  action  of  the
main  reinforcement  bars/  rods  and  the  distribution  bars/  rods,   the
reinforced cement structures like roofs  act  as  a  rigid  diaphragm  whose
elements displace equally in the direction of the applied in-plane loads.

      From the above  discussion  it  is  clear  that  largely  in  building
construction works, no  pre-fabrication  of  any  steel  structure  is  done
before embedding them in cement concrete mixture to form  reinforced  cement
concrete structures.  The findings of the lower authorities to the  contrary
effect in the cases on hand are entirely opposed to facts.

      The only process to which  the  steel  reinforcement  rods/  bars  are
subjected to before being embedded with cement concrete mixture  is  bending
at its ends after cutting of steel rods/  bars  to  the  required  size  and
tying them at the intersections with binding wire.  None of these  processes
constitute a manufacturing process and no new commodity is  produced  before
incorporation into the works.”


16.   Given this factual scenario, Shri K.N. Bhat referred to  the  judgment
in State of Tamil Nadu v. M/s. Pyare Lal Malhotra and Others, (1976)  1  SCC
834, and relied on paragraphs 9 and  10  of  this  judgment  which  read  as
follows:
“If the object was to make iron and steel taxable as a substance, the  entry
could have been: “Goods of Iron and Steel”.  Perhaps  even  this  would  not
have been clear enough. The entry, to clearly have that meaning, would  have
to be: “Iron and Steel irrespective of change of form or shape or  character
of goods made out of them”. This is  the  very  unusual  meaning  which  the
respondents would like us to adopt. If that was the meaning, sales  tax  law
itself would undergo a change from being a law which  normally  taxes  sales
of “goods” to a law which taxes sales of substances, out of which goods  are
made. We, however, prefer the more natural and normal  interpretation  which
follows plainly from the fact of separate  specification  and  numbering  of
each item. This means that each item so specified forms a  separate  species
for each series of sales although they may all belong to  the  genus:  “Iron
and Steel”. Hence, if iron and steel “plates” are melted and converted  into
“wire” and then sold in the market, such wire would only be taxable once  so
long as it retains its identity as  a  commercial  goods  belonging  to  the
category “wire” made of either  iron  or  steel.  The  mere  fact  that  the
substance or raw material out of which it is made has  also  been  taxed  in
some other form, when it was sold as a separate commercial commodity,  would
make no difference for purposes of the law of sales tax. The object  appears
to us to be to tax sales of goods of each variety and not the  sale  of  the
substance out of which they are made.

As we all know, sales  tax  law  is  intended  to  tax  sales  of  different
commercial commodities and not to  tax  the  production  or  manufacture  of
particular substances out of which these commodities may have been made.  As
soon as separate commercial commodities emerge or come into existence,  they
become separately taxable goods or  entities  for  purposes  of  sales  tax.
Where commercial goods, without change of their identity as such goods,  are
merely subjected to some  processing  or  finishing  or  are  merely  joined
together, they may remain commercially  the  goods  which  cannot  be  taxed
again, in a series of sales, so long as they retain their identity as  goods
of a particular type.” [paras 9 and 10]

17.   Given the  fact  situation  in  these  appeals,  it  is  obvious  that
paragraph 10 of this judgment squarely covers the case  against  the  State,
where, commercial goods without  change  of  their  identity  as  such,  are
merely subject to  some  processing  or  finishing,  or  are  merely  joined
together, and therefore remain commercially the same goods which  cannot  be
taxed again, given the rigor of Section 15 of the  Central  Sales  Tax  Act.
We fail to see how the aforesaid judgment can further carry the case of  the
revenue.

18.   We may note that in Civil Appeal No.4318  of  2007,  Larsen  &  Toubro
Ltd. v. State of Karnataka & Another, the Appellate Tribunal had  passed  an
order dated 11.1.2002 in which it decided the case against the  assessee  on
the ground  that  since  the  iron  and  steel  products  went  into  cement
concrete, they changed form, and since  they  changed  form,  they  were  no
longer declared goods and could be taxed without the  constraints  mentioned
in Section 15 of the Central Sales Tax Act.  A Sales Tax  Revision  Petition
filed before the High Court yielded an order dated 14.6.2007  by  which  the
assessee was sent back to the Appellate Tribunal  for  rectification.   This
rectification petition was dismissed by an order dated 30.11.2005.  A  Sales
Tax Revision Petition was thereafter  filed  against  both  orders,  namely,
11.1.2002 and 30.11.2005. The High Court, in  the  impugned  judgment  dated
1.9.2006, unfortunately adverted  only  to  the  rectification  order  dated
30.11.2005 and not to the original order of  11.1.2002  and  thus  dismissed
the revision petition stating that no question of  law  arose.   Ordinarily,
we would have set aside the judgment and remanded the  matter  back  to  the
High Court to determine the matter on merits, but at this point of  time  we
find this would not serve any purpose.  Instead, it is enough to  set  aside
both the judgments impugned by the assessees, dated 1.9.2006 and  12.8.2004,
in light of the law laid  down  in  Builders  Association  and  M/s.  Gannon
Dunkerley (supra), and declare that the declared goods in question can  only
be  taxed at the rate of 4%.

19.   In the State Appeals, we find  that  the  lead  impugned  judgment  in
Civil  Appeals  arising  out  of  SLP(C)  Nos.18646-19117  of   2015   dated
10.12.2013 is an exhaustive judgment  which  has  considered  not  only  the
facts in great detail but also the law laid down by the  Supreme  Court.  We
affirm the said judgment and dismiss the appeals of the State of  Karnataka.

Civil Appeal No.4319 of 2007

M/s. Ananth Engineering Works v. State of Karnataka

20.   This appeal is by  the  assessee  from  a  judgment  dated  26.10.2006
allowing a revision against the Appellate Tribunal’s order dated  19.1.2006.
 In this appeal, we are concerned with Rule 6(4)(m) of the  Karnataka  Sales
Tax Rules, 1957.

“Rule 6(4):

6.   DETERMINATION OF TOTAL AND TAXABLE                   TURNOVER:

(1)…….

…….

(4)    In determining the table turnover, the  amount  specified  in  clause
(a) to (p) shall, subject to the conditions specified therein,  be  deducted
from the total turnover of a dealer as determined under clauses (a)  to  (e)
of sub-Rule (1).

(a)…..

(b)….

…..

(m)    In  the  case  of  works  contract  specified   in   Serial   Numbers
1,2,3,4,5,7,8,9,10,11,12,17,26,27,35,36,40 and 42 of the Sixth Schedule;

(i)    all amounts received or receivable in respect  of  goods  other  than
the goods taxable under sub-section (1-A) or (1-B) or Section  5  which  are
purchased form registered dealers liable to pay tax under the Act  and  used
in the execution of works contract in the same form in which such goods  are
purchased.

(ii) ……

…….EXPLANATION-III For the purpose of sub-rule (4), the expression  ‘in  the
same form’ used in sub-clause (i) of  clause  (m)  shall  not  include  such
goods which, after being purchased, are  either  consumed  or  used  in  the
manufacture of other goods which in turn are used in the execution of  works
contract.”



21.   On facts in this case,  it  has  been  found  that  the  appellant  is
engaged in works contracts of fabrication  and  creation  of  doors,  window
frames, grills, etc. in which they claimed  exemption  for  iron  and  steel
goods that went into the creation of  these  items,  after  which  the  said
doors, window frames, grills, etc. were  fitted  into  buildings  and  other
structures.  On facts, therefore, we find that the High Court’s judgment  is
correct and does not need to be interfered with inasmuch  as  the  iron  and
steel goods, after being purchased, are used in  the  manufacture  of  other
goods, namely, doors, window frames, grills, etc. which in turn are used  in
the execution of works contracts and are therefore not exempt from tax.

22.   The appeal of the assessee is therefore dismissed.


                                        …..………………J.
                                        (A.K. Sikri)


                                        …..………………J.
                                        (R.F. Nariman)
New Delhi;
August 11, 2016

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.