A.K. Goel, C.J.

1. This order Will dispose of W.P. (C) Nos. 578 of 2009, 809 of 2009, 822 of 2009, 811 of 2009, 816 of 2009, 819 of 2009, 325 of 2011, 1705 of 2009, 802 of 2009, 1960 of 2009, Writ Appeal Nos. 286 of 2010, 279 of 2011, W.P.(C) Nos. 5343 of 2011, 5344 of 2011, 5345 of 2011, 5346 of 2011, 5347 of 2011, 5280 of 2011, 5348 of 2011, Writ Appeal No. 147 of 2011, W.P.(C) Nos. 2124 of 2011, 5585 of 2011 and Writ Appeal No. 383 of 2009 as it is stated by learned counsel for the parties that all the cases involve a common question of leviability of VAT under the Assam Value Added Tax Act, 2003 ("the Act") on the transaction in question on the ground that transfer of right to use the goods for consideration was involved therein. We have taken Writ Appeal No. 286 of 2010 and Writ Appeal No. 279 of 2011 as the lead cases-the first being the appeal by the Revenue and the second being appeal by the assessee against orders of learned single judge in identical matters.

2. In Writ Appeal No. 286 of 2010 one learned single judge Reported as D.P. Agarwalal v. Oil and Natural Gas Corporation Ltd. (2010) 32 VST 8 (Gauhati). has taken view in favour of the assessee while in Writ Appeal No. 279 of 2011 another learned single judge following an earlier Division Bench judgment dated November 25, 2009 in Writ Appeal No. 138 of 2007 (Dipak Nath v. Oil and Natural Gas Corporation Ltd. (2010) 31 VST 337 (Gauhati)) has taken a view in favour of the Revenue.

3. In Writ Appeal No. 286 of 2010, the respondent-assessee challenged deduction of tax at source under the Act in respect of the transaction covered under the contract dated June 22, 2009 between the assessee-contractor and the Oil and Natural Gas Corporation Ltd. (ONGC), contractee on the ground that no transfer of right to use was involved, the transaction being in the nature of service. Case of the assessee was that it owned cranes and in pursuance of notice inviting tenders issued by the ONGC for hiring cranes, the assessee had entered into the contract. The cranes were placed at the disposal of the contractee ONGC on day-to-day basis, without transfer of possession and custody thereof. Operating costs including maintenance, repair, insurance, salary of employees were to be borne by the assessee and there was no transfer of ownership of the cranes, nor of the right to use. The possession and custody of the cranes remained with the assessee. The assessee was paying service tax to the Central Government under the provisions of the service tax contained in the Finance Act, 1994. The Revenue informed the assessee that in view of judgment of this court in Dipak Nath (2010) 31 VST 337 (GAU.), the contract in question attracted VAT. The said judgment could not apply after the Finance Act, 1994 came to be amended with effect from May 16, 2008, whereby clause (zzzzj) was inserted in section 65(105) of the Finance Act, 1994, making service in relation to supply of tangible goods, including machinery, equipments and appliances for use without transferring right or possession and effective control, to be taxable service. The contract of providing cranes for hire to the ONGC was a contract of service and not of transfer of right to use in view of terms of the contract in question. The work included deep drilling rigs/work over rigs besides loading/unloading works of heavy and all connected rig materials from or into trailers/trucks/ railways wagons besides any other materials handling job as may be assigned from time to time by the authority. The employees for operating cranes remained employees of the assessee and were not paid any extra charges by the contractee-ONGC. The assessee was required to make arrangement for shelter, food, stay and other requirements of the said staff. The assessee also continued to remain responsible for any claim arising out of accident by the cranes. Per day hire charges for the cranes were inclusive of all expenses necessary for continuance of service of the crane