(M/S Dipak Nath v. Oil & Natural Gas Corp. Ltd.) has taken a view in favor

The writ petition was contested by the State of Assam by submitting that the con tract was predominantly the transfer of right to use the cranes in favour of the ONGC. As per terms of the contract, right to use during subsistence of contrac t was with the ONGC and not with the assessee. Payment of service tax was not de terminative of chargeability of VAT. Providing of service for operating the cran es was incidental to the contract of transfer of right to use the cranes. Even i f the transaction involved two overlapping taxable events, distinctiveness of th e aspect of sale enabled levy of VAT on the transaction. The various clauses referred to hereinabove if considered in con Learned Single Judge, after considering the rival submissions, upheld the plea o f the assessee. The Division Bench judgment of this Court in Dipak Nath was held to be distinguishable on the ground that the transaction involved therein was n ot unequivocal that cranes were being made available for services of ONGC, thoug h substantially identical, the plea of indivisibility of composite contract was not decided therein and the transaction was prior to amendment of provisions of service tax by the Finance Act, 2008. It was further held that as per the recita l in the scope of work, dominion of the contractee ONGC, without cessation of du ty of the contractor assessee to maintain the cranes could not give rise to the interference of transfer of control of the cranes. The operative part of the ob servations in the said judgment are : (cid:28)27. junction along with the unqualified recital in the Scope of Work, in the estimat e of this Court do not comprehend a lease or transfer of right of use of the cra ne(s) and propel the transaction out of the purview of lease/sale as contemplate d by Article 336(29A)(d) of the Constitution of India or Section 2(27)/2(43) of the Act. A dominion of the Corporation over the manned crane(s) though perceptib le for the operational needs the overwhelmingly emphatic covenants consciously i ncorporated by the contracting parties emphasise as well the singular responsibi lity and accountability of the contractors to unfailingly guarantee the timely p lacement, and availability of the manned crane(s) as well as the smooth and qu ality execution of the works. A few clauses of the contract though are suggestiv e of the Corporation’s prerogative to use the crane(s) as per its requirements, the same per se do not constitute cessation of the contractors’ duties as enumer ated on various fronts for due discharge of the services expected of them. The t erms and conditions of the contract agreements taken as a whole, do not proclaim Corporation’s possession, custody and control of the crane(s) to the total excl usion and estrangement of the contractors wholly alienating them from the assign ment agreed to be undertaken. The parties seem to be ad-idem to accentuate upon continuous supervision and surveillance of the contractors not only to affirm un hindered execution of the Corporation’s works but also to ensure quality service . The residuary discretion and the power retained by the Corporation in the matt er of detailment of the works and the prohibition against the withdrawal of the crane(s) approved by it do not ipso facto militate against the otherwise all per vasive service aura discernible in the contract agreements. Though the working hours of the crane(s) have been specified, the contract agreements do not ordain continuance of the location thereof at the site(s) even thereafter. Payments on hourly pro rata basis are also contemplated. Not only the opening recital potra ying the transaction to be neither a lease nor a transfer of right to use the cr ane(s) consciously incorporated in the contract agreements ought not to be readi ly trivialized, the comprehension of service tax only being payable is also redo lent of the predominant service feature thereof. The parties, inspite of all th e clauses bearing on the minutiae of the operations did not contemplate transfer of right of use of the cranes by the contractors in favour of the Corporation d ivesting themselves of their authority and control over the same.

28. The determination made by a Division Bench of this Court in Writ Appeal No.138/2007 Dipak Nath v. Oil & Natural Co. Ltd. and Ors. and a batch of other writ appeals and writ petitions accompanying the same in view of the app arent distinguishable features in the contract agreements involved, in the prese nt adjudication does not wrest the issue in favour of the Revenue. Not only the contract agreements scrutinized in the aforementioned appeals, though otherwise substantially identical with those in hand did not inscribe the striking and un equivocal recital that the services of the manned Cranes to be made available fo r performing the duties of the Corporation would not be by way of lease or trans fer of rights for use thereof by the contractors to it (Corporation), the partie s thereto, in clear terms contemplated realization and payment of service tax at the rate of 10.3 % thereon under the Finance Act, 1994. Moreover, the plea of indivisibility of a composite contract of the type involved in the perspective o f Article 366 (29-A) of the Constitution was not raised to be analysed and adjud ged in those appeals. The contract agreements therein also related to a point o f time prior to the incorporation of Sub-clause (zzzz j) in the definition of ta xable service provided in Section 65(105) thereof vide the Finance Act, 2008 wit h effect from 16.05.2008. (cid:29) Contrary to above, in Dipak Nath construing almost identical contract with the O NGC, it was held that transfer of right to use was involved as the cranes were p laced at the disposal of the ONGC for its operation on all days except maintenan ce days. Mere fact that the contractor was required to provide employees or othe r facilities made no difference to issue of transfer of right to use, even if th e physical possession may be with the contractor. It was held that : (cid:28)18. A reading of the core provisions of the terms of the contract, details of w hich have been extracted above, would indicate that insofar as the cranes are co ncerned, the same are required for dismantling or erection of deep drilling rigs /work over rigs and similar other works in different locations where the ONGC is engaged in its operations. Under clause 3.1 such cranes are to be placed at the disposal of the ONGC and should be available throughout the duration of the con tract. Under clause 4 the cranes are to be brought to the places nominated by th e ONGC on date of commencement of the work and are to be taken by the contractor s on the termination of the contract. Under clause 5.1 cranes offered by the con tractor are to be inspected by the ONGC along with the documents pertaining to t he cranes. Under clause 5.3 once a particular crane and its documents have been approved for service of the ONGC the same cannot be changed during the period of the contract except on being rendered defective. Under clause 8.1 of the contra ct agreement though the contractor is required to provide employees for operatio n of the crane such, employees are to work as directed by the ONGC, Under clause 8.3 of the contract agreement a crane through hired for work in oil field condi tions may also be required to work in other hazardous situations at the discreti on of the ONGC. Refusal to work in such hazardous situations as directed by the authorized representative of the ONGC could lead to de-hiring of the crane, unde r clause 8.7 of the contract agreement day-to-day operations are to be performed as per instructions given to the contractor’s representatives by the authorized representatives of the ONGC. Under clause 8.11 normal working hours is to comme nce from 7.00 hours for 10 hours everyday with half an hour as lunch break. Howe ver, the said clause has specifically mentioned that the timings indicated there in are subject to change and cranes may be asked for services beyond the normal working hours at the sole discretion of the ONGC. Under clause 8.12, a contracto r is required to provide the crane on all days in the calendar month except 4 (f our) days which are to be treated as maintenance off days. Even on such maintena nce off days the ONGC can demand operation of the cranes by the contractor. Unde r clause 8.14 the employees provided by the contractor are to be provided with s uitable residence at a convenient place near the site of operations so as they c an be available for duty for 10 hours starting from 7.00 hours to 1700 hours or as directed by the authorized representative of the ONGC. Under clause 9.10 of t he contract agreement the contractor is to arrange the fuel lubricants and other consumable at all times. Under clause 8.15 the contractor is to additionally en sure that each crane while reporting for duty is provided with adequate fuel for at least 24 hours of work. Under clause 9.14 the staff of the contractor engage d in the operation of the crane is required to maintain the log books provided b y the ONGC and have the same signed at the required intervals by the authorized officer of the ONGC. Under clause 11.2 of the contract agreement apart from mont hly operational charges for 26 days at the rate of 10 hours per day (the remaini ng four days are maintenance off days) additions on account of excess operationa l hours is contemplated. Furthermore, even during maintenance off days ONGC is t o pay 50% of the operational charges per day though the crane may not be actuall y deployed in operations.

19. The above analysis of the relevant provisions of the contract agreement betw een the parties indicate the clear dominion and control of ONGC over the crane d uring the entire period of operation of the contract once a crane is placed at t he disposal of the ONGC under the contract. The crane is to be deployed at works ites as per the discretion of the ONGC and though the normal period of deploymen t is 10 hours in a day, such deployment at the discretion of the ONGC may be for any period beyond the normally contemplated 10 hours. The deployment of the cra ne in oil field operations as well as other hazardous situations is at the sole discretion of the ONGC. Though the cranes are operated by the crew provided by t he contractor such crew while operating a crane is under the effective control o f the ONGC and its authorities. Therefore, under the contract though the normal operational time is 10 hours in a day, the ONGC is entitled to deploy the cranes , if required, to the entire period of 24 hours to perform duties the kind of wh ich and the locations whereof is to be decided by the ONGC. The mere fact that a fter the operation of the crane is over on any given day the crane may come back to the owner/contractor will hardly be material to decide as to who has dominio n over the crane inasmuch as the crane can be recalled for duty by the ONGC at a ny time. Under the contract the crane is to be operated for 26 days in a month a nd the remaining four days are to be treated as maintenance off days. Though the crane is not operational on the maintenance off days, yet, 50% of the operation al charges is paid by the ONGC for the maintenance off days and the terms of the contract make it clear that even on the off days the crane can be called for op eration by the ONGC at its sole discretion.

20. The above features of the contract, in our considered view, makes it abundan tly clear that it is the ONGC and not the contractor who has exclusive control a nd dominion over the crane during the subsistence of the contract, though, durin g the aforesaid period, at times, physical possession of the crane may come back to the contractor. Such temporary physical possession of the contractor, accord ing to us, would hardly be relevant as under the contract the ONGC is vested wit h the authority to requisition the crane for operational purposes at any time. B esides, such temporary possession of the crane by the contractor does not mitiga te against the transfer of the right to use the crane which event, as already in dicated on the authority of the decision of the Apex Court in 20th Century Finan ce Corpn. Ltd. (supra), constitutes the taxable event under article 366(29A)(d) of the Constitution. (cid:29) We have heard learned counsel for the parties. Learned counsel for the revenue submits that this Court may not go into the ques tion as to whether the transaction covered by contract dated 22.6.2009 amounted to transfer of right to use so as to preempt the assessing authority from taking a decision. Alternatively, it was submitted that the real effect of the transa ction in question was to transfer the right to use of the cranes by the asssesse e to the ONGC for the hire charges as held in Dipak Nath, which was binding on l earned Single Judge and has been wrongly distinguished in spite of contract bein g identical. Further, the recital in the agreement shows that the notice invitin g tender was for ’hire of the cranes’ and for all practical purposes the use of the cranes was transferred to the ONGC for the period of contract and the assess ee had no right to use the same, such right having been transferred to the contr acee ONGC for consideration. Mere fact that under the contract, responsibility f or the maintenance and proper use of the cranes was of the assessee did not devi ate from the nature of transaction being transfer of right to use. The transacti on was not covered by the Finance Act, 2008 as thereunder services of supply of tangible goods were taxable if right to possession and control was retained by t he service provider. Reliance was placed on judgment of the Hon’ble Supreme Cour t in Bharat Sanchar Nigam Ltd. & another vs. Union of India and others, (2006)3 SCC 1, particularly paragraphs 74, 75, 76, 77 and 97 as follows : 74. In determining the situs of the transfer of the right to use the goods, the Court did not say that delivery of the goods was inessential for the purposes of completing the transfer of the right to use. The emphasised portions in the quo ted passage evidences that the goods must be available when the transfer of the right to use the goods takes place. The Court also recognised that for oral cont racts the situs of the transfer may be where the goods are delivered (see para 2 6 of the judgment).

75. In our opinion, the essence of the right under Article 366(29-A)(d) is that it relates to user of goods. It may be that the actual delivery of the goods is not necessary for effecting the transfer of the right to use the goods but the g oods must be available at the time of transfer, must be deliverable and delivere d at some stage. It is assumed, at the time of execution of any agreement to tra nsfer the right to use, that the goods are available and deliverable. If the goo ds, or what is claimed to be goods by the respondents, are not deliverable at al l by the service providers to the subscribers, the question of the right to use those goods, would not arise.

76. In State of A.P. v. Rashtriya Ispat Nigam Ltd. (2002)3 SCC 314 it was claim ed by the Sales Tax Authorities that the transaction by which the owner of certa in machinery had made them available to the contractors was a sale. The Court re jected the submission saying that: (SCC p. 315, para 4) (cid:28)[T]he transaction did not involve transfer of right to use the machinery in fav our of contractors. & the effective control of the machinery even while the mach inery was in use of the contractor was [(1984) 280 SC 138] that of the responden t Company; the contractor was not free to make use of the machinery for the work s other than the project work of the respondent or &. (cid:29)

77. But in Aggarwal Bros. v. State of Haryana (1999) 9 SCC 182 when the assessee had hired shuttering in favour of contractors to use it in the course of constr uction of buildings it was found that possession of the shuttering materials was transferred by the assessee to the customers for their use and therefore, there was a deemed sale within the meaning of sub-clause (d) of clause (29-A) of Arti cle 366. What is noteworthy is that in both the cases there were goods in existe nce which were delivered to the contractors for their use. In one case there was no intention to transfer the right to use while in the other there was.

97. To constitute a transaction for the transfer of the right to use the goods, the transaction must have the following attributes: (a) there must be goods available for delivery; (b) there must be a consensus ad idea as to the identity of the goods; (c) the transferee should have a legal right to use the goods-consequently all l egal consequences of such use including any permissions or licences required the refor should be available to the transferee; (d) for the period during which the transferee has such legal right, it has to b e the exclusion to the transferor-this is the necessary concomitant of the plain language of the statute viz. a (cid:28)transfer of the right to use (cid:29) and not merely a licence to use the goods; (e) having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others . (cid:29) Learned counsel for the assessee supported the view taken by learned Single Judg e, particularly the conclusion in para 33 of the judgment as follows : (cid:28)33. In the face of the overwhelming clauses of the contract agreements which predominantly project the transactions for rendition of services of manned Cran es by the petitioners, the challenge laid to the competence of the Revenue to re alize tax under the Act in connection therewith, appears to be formidable. To re iterate the Revenue has admitted the transactions to be otherwise indivisible. The contract agreements, however do not evidence even a little of the intention of the parties to mutilate the integrity of the transactions engrafted therein i nto two independent undertakings for transfer of the right to use the Cranes and services, quantifying separate values therefor. The essence of the contract ag reements is not the Cranes, but the covenants to employ the same. As has been en visioned in paragraph 97 of Bharat Sanchar Nigam Limited (Supra) the essential f eature of sale amongst others are (1) the legal right of the transferee to use t he goods to the exclusion of the transferor during the period of the contract an d not merely a licence therefor, (2) the legal right of the transferee to use th e goods with all legal consequences thereof including permissions or licence to be available to permit the exercise thereof. The transfer of right would thus imply relinquishment of both possession and con trol of the goods by the transferrer in favour of the transferee whereafter duri ng the transaction the former would have absolute dominion thereupon to the alie nation of the latter. The enjoinments proclaimed by the various clauses of the contract agreements albeit are to secure the maximum utilization of the manned C ranes and the quality services to be rendered thereby, (i) all permeable supervi sion of the contractors over the works to be executed on the instructions of the representatives of the Corporation, (ii) their singular responsibilities and li abilities to guarantee the availability of the manned Cranes while ensuring the perfect working condition thereof (iii) the insulatory stance of the Corporation from all liabilities, risks, hazards, claims etc. that may arise from the opera tions and (iv) recognition of the independence of the contractors and their empl oyees considered cumulatively, in the opinion of this Court are extinctive of an y supervening dominion of the Corporation over the possession, custody and con trol of the Cranes so as to signify transfer of right of use thereof to it by th e contractors. No patent or latent comprehension of the contracting parties is perceptible from the contract agreements to deduce any transfer of right to use the Cranes so as to render the transactions exigible to tax under the Act. (cid:29) Learned counsel for the assessee also relied upon, apart from Bharat Sanchar Nig am Ltd. (supra), following judgments : 1) Commissioner, Trade Tax, U.P., Lucknow vs. Jamuna Prosad Jaiswal, (2008) 13 VST 403 (All). Rungta Projects Limited and another vs. State of Bihar and others, (1998 2) ) 108 STC 234 (Pat). 3) ouse Ltd., (2009) 25 VST 653 (Del). 4) 40 STC 42 (SC). 5) Commissioner, VAT, Trade and Taxes Department vs. International Travel H The Bhopal Sugar Industries Ltd. vs. Sales Tax Officer, Bhopal, (1977) WP(C) No.127 of 2005 [Agartala Bench] (HLS Asia Limited vs. The State of Tripura & others). We have given due consideration to the rival submissions and also perused the ju dgments relied upon and the record. Main question for consideration is whether the transaction covered by the contra ct in question involves transfer of right to use. Before we deal with the main question, we may deal with the objection raised on behalf of the State that the Writ Court may not deal with the nature of transact ion so as to preempt the statutory assessing authorities determining the questio n whether the transaction was of transfer of right to use the goods. Undoubtedly , the writ Court is not expected to decide a question of fact which is required to be gone into during the assessment. But no such objection having been raised before learned Single Judge and the parties having participated in adjudication of the issue on merits, it will be too late in the day to non-suit the assessee at this stage. Coming to the merits, it has to be analysed whether, under the transaction in qu estion, right to use of the cranes remains vested with the contractor assessee o r gets transferred to the contractor ONGC. To determine the nature of transaction, regard has to be had to the substance of the transaction than to its form. The substance has to be gathered from the tot ality of the terms of the contract. As held in BSNL, for determining whether transfer of right to use the goods was involved, there must be goods available for delivery; there should be consensus as to identity of goods; the transferee should have legal right to use the goods , to the exclusion of the transferor. Applying these tests, the Division Bench of this Court in Dipak Nath held that transfer of right to use the goods was involved in the transaction. We are in re spectful agreement with the view taken therein. The distinguishing features pointed out by the learned Single Judge are of no co nsequence to the core issue. Question whether it was transfer of right to use di d not depend on the provisions of the Service Tax law and thus amendment by Fina nce Act, 2008 had no relevance to determine the said question. Plea of indivisib ility of the contract also did not make any difference, if the transaction clear ly involved transfer of right to use. The terms of the contract have already bee n analyzed in the Division Bench judgment in Dipak Nath and present contract is substantially identical. The agreement is for hiring of the cranes. The heading and the recital clearly show that nature of transaction is for the hiring. The hire charges are per day for all days except the off days, though the bill is to be raised monthly. The p rovisions for maintenance, providing staff for maintenance and operation and tak ing responsibility for claim of third parties do not affect the nature of the tr ansaction. Some of the clauses, which are material for the issue in question, are as follow s : (cid:28)Whereas ONGC is desirous of entering into a contract for hiring of hydraulic cr anes for carrying out ONGC’s operations conforming to specifications as set fort h in the Scope of Work of this agreement. (cid:29) PERFORMANCE (cid:28)9.0 The contractor shall undertake to perform all services under this contract with all reasonable skill, diligence and care in accordance with sound industry pract ice to the satisfaction of the ONGC and accept full responsibility for the satis factory quality of such services as performed by them. Any defect, deficiencies noticed in the contractor’s service will be promptly remedied by the contractor within 10 days upon the receipt of written notice from ONGC to improve their per formance failing which ONGC may terminate the contract by giving the contractor 30 (thirty) days written notice. (cid:29) (cid:28)1. SCOPE OF WORK The services of the manned (Driver/Operator Slinger/Khalasi etc. as the case may be) crane (type of crane to be given) as per technical specifications given her ein or a vehicle equipment of equivalent technical specifications and acceptab le to ONGC along with the necessary accessories with valid permits/licences, in surance etc., sufficient fuel in well maintained condition and fulfilling other pre-requisites should be available for performing the duties as advised by ONGC, at the appointed time and place, throughout the contract not by way of lease o r transfer of rights for use of the vehicle/equipment, by the contract to ONGC. The work under contract shall include but not limited to dismantling/erection of Deep drilling rigs/work over rigs besides loading/unloading works of heavy dri lling/production equipment’s, like tubulars, Bunk Houses, store houses of odd si ze and all connected rig materials from or into trailers/trucks/Railways wagon s besides any other materials handling job as may be assigned from time to time by the authorized representative of ONGC at various points/sites (slushy)/instal lations etc. The area of operation shall normally be in connection with the acti vities of Assam asset of ONGC or anywhere as per requirement of ONGC in and arou nd Sivasagar, Jorhat, Dibrugarh Districts Assam. CRANES AND ITS OPERATION: 2. 2.1 Cranes placed at the disposal of ONGC should be available through ou t the contract duration with the required efficiency/fitness to handle loads upt o the designed capacity. (cid:29) RATES AND MODE OF PAYMENT: (cid:28)9. 9.1. The contractors shall raise crane wise monthly bills in TRIPLICATE in th e prescribed proforma in the name of FINANCE & ACCOUNTS OFFICER, ONGC and submit s the same to Incharge-Logistic-Operations, ONGC, or any other authority advised from time to time for arranging payment. These bills will be duly supported by the completed logbook sheets to him duly signed by the authorized officers for r ecord by the Logistic Department. The bills after verification and checks by an authorized officer of ONGC (Logistic Department) will be sent to Finance & Acco unts Department for payment. The payment shall be made to the contractor by cheq ue drawn on State Bank of India. The payment shall normally be made within 30 da ys of the receipt of the bill duly complete in all respects. No interest shall b e payable for any delay, No advance against hire charge is payable under any cir cumstances.

9.2 The Rate in the Schedule are all inclusive, complete, composite and firm for the contract period. For work done under this contract the contractor shall be paid as under:- Per day hire charges for all days in a month except maintenance off day i. s and period of non-availability (days/hours) of cranes in operation. ii. Normally, ONGC may allow one day per week to carry out repair/ maintena nce of the cranes (maximum upto 4 days in a month). Contractor may also avail s uch 4 maintenance off days at a time in any month, if due, to carry out repair a nd maintenance of the crane with the prior approval from ONGC without any day r ate payment and no LD will be levied on such maintenance days (4 days per month) . iii. ill be made as per the day rate. iv. a. In case, due to ONGC operational requirement contractor has not avail ed maintenance day(s) in a particular month (max. upto 4 days), contractor can avail the left over maintenance days in the subsequent months in addition to th e available maintenance days of the respective month. However, contractor may ac cumulate maintenance days only upto 8 days at any point of time. These maintenan ce days can be availed by the contractor with prior approval of ONGC. The number If the crane is engaged on any maintenance day(s), in a month, payment w of maintenance days shall not be carried forward for more than 8 accumulated da ys at any point of time and no LD will be imposed on such cases. b. Depending on the urgency and requirement of work, if the crane is utilized b y ONGC, beyond 10 hours (including half an hour lunch) in a day, for each hour o f utilization payment will be made on prorata basis, calculated as per clause 1 .31 of Section A of Annexure II of the contract. This would include all expenses , including OT charges if any to the operating crew & operational charges. Occas ionally the crane may be required to work round the clock during lowering and p ulling of casting operations. v. During the period if the crane(s) remained in stuck up conditions in th e ONGC’s operational site as per the OnGC’s record during normal working hours a day, the payment will be restricted to the rate of 50% of the day rate/prorata hourly rate as mentioned in Clause 1.31 of Section A of Annexure II of the con tract, as the case may be. No other payment for this period will be made. The d ecision of ONGC with regard to stuck up condition will be final and binding and the contractor will abide by the decision of ONGC. vi. The payment of hired charges of crane(s) will be made on the basis of cr ane utilization record (date/time/period etc.) entered in the log book of crane( s) provided to the contractor by ONGC, the contractor should maintain logbook a nd see that proper crane utilization/operations are recorded in the log book of the crane and Log book is completed in all respect duly signed by ONGC’s user/re presentative without any erasing, overwriting, cutting whatsoever. Whenever nec essary and if any entry is cut/rewritten it should be got signed by the user. Lo b Book should be completed every day before closing.

9.3. The above rates are inclusive of all expenses, which means every expenditur e necessary for the continuance of the services of the cranes throughout the con tract duration. Such expenses shall also include(but not restricted to) payment s to Regional Transport Authorities, Labour Authorities, any Government/semi-go vernment, local and Municipal Authorities dues, taxes, levies fees, connected with the service, repairs of Cranes, maintenance, HSD/Oil, Lubricants, Insurance , Local Services, all expenses of the Contractor’s establishments, Crane crew, labourers’ salaries, interest on capital, bonus etc., of the personnel employed for the operation/maintenance of the cranes and any other expenses in providing an acceptable and satisfactory level of service. It must be clearly understood that ONGC shall not make any other payment except the agreed hire charges.

9.4 The ONGC shall not be liable to make any other payments except the greed hir e charge (as mentioned in clause No.9.2). The rates shall also be inclusive of a ll incidental and contingent operations ( and consequent expenses) although not specifically mentioned in terms and conditions but considered necessary or expe dient to the performance of the services in a satisfactory manner and upto desir ed standard. (cid:29) A perusal of the above terms shows that (a) the contract is for hiring of the c ranes for carrying out the operations of the ONGC; (b) the scope of work is men tioned to specify the operation in connection with which the cranes are hired; ( c) the work is not to be executed by the contractor but by the ONGC itself; (d) the contractor is to provide cranes on hire in connection with the said work. It appears to have been wrongly assumed that the contractor is to execute the work mentioned in the heading of (cid:28)Scope of work (cid:29). It is clear from the recital that the scope of work is mentioned as the work for which the cranes were hired; (e) Clause 2.1 shows that the cranes are at the disposal of the ONGC and per day hir e charges are paid for all days, except maintenance days; (f) services of staff and maintenance are incidental to the hiring of the cranes. Liability to the thi rd party is on account of the fact that in spite of hiring of the cranes by the ONGC, the employees operating the cranes are provided by the assessee. In MERSEY DOCKS AND HARBOUR BOARD v. COGGINS & GRIFFITHS (LIVERPOOL) LTD. AND McFARLANE, [1946] 2 All E.R. 345 and in Bhoomidas v Port of Singapore Authority, [1978 1 All ER 956, it has been held that even if a ship is hired, responsibility for damage to a third party is not of the hirer but of the owner as it is the owner who controlled the manner and working of the employees; (g) it is the ONGC alone which is entitled to exclusively use the cranes and not the assessee. On totality of above factors, we, conclude that the transaction clearly involved transaction of right to use. Coming now to the judgments relied upon on behalf of the assessee, the judgment of Hon’ble Supreme Court in Bhopal Sugar Industries relates to interpretation of words in a transaction and holds that the Court has to see thesubstance than th e form. There is no dispute with this proposition. Judgments in (1) Commissioner , Trade Tax, U.P., Lucknow vs. Jamuna Prosad Jaiswal, (2008) 13 VST 403 (All), ( 2) Rungta Projects Limited and another vs. State of Bihar and others, (1998 ) 108 STC 234 (Pat) and ( 3) Commissioner, VAT, Trade and Taxes Department vs. International Travel House Ltd., (2009) 25 VST 653 (Del) are on individual fact situations. The nature of contract involved therein being different, the said j udgments are of no assistance. As regards HLS Asia Limited, the transaction involved therein is also not identi cal. Moreover, the said judgment in referring to the impugned judgment of the le arned Single Judge with approval cannot be read as dissenting from the Division Bench judgment of this Court in Dipak Nath. The said judgment has thus to be lim ited to the nature of the transaction considered therein. In absence of discussi on of ratio of Division Bench judgment of this Court in Dipak Nath, it cannot al so be held that there is a conflict in two Division Bench judgments of this Cour t so as to refer the matter to a larger Bench. In view of above, we allow Writ Appeal Nos. 286/2010, 147/2011 and 383/2009 file d by the Revenue and dismiss Writ Appeal No.279/2011 and WP(C) Nos.578/2008, 809 /2009, 822/2009, 811/2009, 816/2009, 819/2009, 325/2011, 1705/2009, 802/2009, 19 60/2009, 5343/2011, 5344/2011, 5345/2011, 5346/2011, 5347/2011, 5280/2011, 5348/ 2011, 2124/2011 and 5585/2011 filed by the assessee.