M. Y. EQBAL, J.

1. In this writ application the petitioners have prayed for issuance of appropriate writ declaring that the petitioners are not liable to pay sales tax for the works executed by them under contract dated October 14, 1993 and November 24, 1994 entered into by and between the petitioner No.1 and Damodar Valley Corporation, respondent No.4, for removing overburden, namely, earth/loose debris and stone at Bermo mines in the district of Bokaro with the help of heavy earth moving machinery. The stand taken by the petitioners is that the contract did not involve hiring of machineries or any sale within the meaning of section 2 (t) of the Bihar Finance Act, 1981 (hereinafter to be referred to as "the Act" for short ). A further prayer has been made for quashing the orders dated August 30, 1996 and September 2, 1996 whereby demand for payment of sales tax have been raised by the respondents, the sales tax authorities.

2. 2. Petitioner No.1, M/s. Rungta Projects Limited, is a company incorporated under Indian Companies Act and carries on business of removal of overburden from different mines situated in various parts of the country as a contractor and for the purpose of the said business the petitioner-company uses its heavy earth moving machines (in short "hemm"), such as excavators, dozers, pay-loaders, dumpers, tippers drills etc. In 1993 the petitioner was awarded a contract by respondent No.4, Damodar Valley Corporation (hereinafter to be referred to as "the DVC" for short) for removal of overburden, namely, earth/loose debris and stone from its Bermo mines in the district of Bokaro. The said contract was awarded pursuant to a public tender. An agreement to that effect was executed by and between the petitioners and the DVC on January 18, 1994 and work order was issued on October 14, 1993. It is stated that upon successful completion of the job awarded under the contract and the expiry of the period of the said contract, the respondent-DVC awarded another contract for a further period of 12 months for the same job subject to certain modification as regards the rate. According to the petitioners, the first contract was given in the year 1993 and the second contract was given in the year 1994 which were for all practical purposes renewal of the first agreement. The petitioners alleged that under special terms and conditions of the agreement the petitioners were allotted the work for removal of overburden from Bermo mines of respondent No.4. The total quantity of overburden to be removed by the petitioners was to be measured in cubic metre and the rate at which the petitioners was to be paid was to be calculated on the basis of volume of work measured in cubic metre. It was further stipulated in the agreement that the petitioner was required to remove not less than 70,000 cubic metre per month and there was a penalty clause in the said agreement for shortfall in the removal of targeted quantity of overburden every month. Under the said agreement the petitioner was required to engage heavy earth moving machinery and whole operational cost of the machines and maintenance were to be borne by the petitioner-company. The petitioners further case is that the company did not give on hire its machines to DVC and there was no question of giving on hire its machines as the work of removing the overburden from mines was to be done by the petitioner-company and not by the respondent-DVC. It is further stated that at no point of time during the execution of both the contracts, the petitioners transferred the machines either permanently or temporarily for use by the DVC. It is stated that notwithstanding this factual position and the fact that the petitioner-company was not liable to pay sales tax under any of the contracts, the respondent No.4 was deducting sales tax at source from the running bills of the petitioner-company under 1994 contract. The petitioner objected to the said deduction by writing letters to the Coal Su