JUDGMENT :

Deepak Roshan, J.

Since both the writ petitions arises out of a common order passed by the Commercial Taxes Tribunal, Jharkhand as such, they are taken up together and disposed of by this common order.

2. The writ application being W.P.(T) No. 3022 of 2017 has been preferred by the petitioner-company for quashing/setting aside the order dated 24.03.2017 for the assessment year 2008-09 whereas W.P.(T) No. 3172 of 2018 pertains to the assessment year 2009-10, passed in Revision Case No. JR 82 of 2012 and Revision Case No. JR 83 of 2012 respectively by the Commercial Taxes Tribunal, Jharkhand wherein order dated 30.10.2012 passed by the Commissioner of Commercial Taxes, Jharkhand has been confirmed.

3. The Case of the Petitioner is that the Petitioner-Company is engaged in production and supply of gases like, Oxygen, Nitrogen and Argon gases for industrial and medical use and the present writ petitions relate to one of its manufacturing unit situated at Jamshedpur in the State of Jharkhand. The petitioner, pursuant to two separate agreements vide agreements dated 3rd June, 1996 and 28th June 2002, established two units for meeting the requirement of continuous supply of Oxygen, Nitrogen and Argon gases to Tata Steel Ltd. Under the aforesaid agreements entered by the petitioner with Tata Steel Ltd., petitioner was required to install and operate its own air separation plant and ancillary equipments for supply of Oxygen, Nitrogen and Argon gases to Tata Steel Ltd. which is engaged in manufacturing of Iron and Steel products, having its works situated at Jamshedpur in the State of Jharkhand and having requirement of continuous supply of aforesaid industrial gases for enhancing the performance of its blast furnace producing hot metal, steel melting shops producing steel, etc.

4. The further case of the petitioner-company is that pursuant to the aforesaid agreements, Tata Steel Ltd. provided land adjacent to its works to the petitioner, wherein the petitioner erected its industrial unit for production of gases having capacity of 1290 Tonne per day (for short ‘TPD’) and 225 TPD respectively. Apart from establishing its industrial unit at the site adjacent to Tata Steel Ltd. at Jamshedpur, the petitioner also constructed pipelines from its industrial unit to the industrial unit of Tata Steel Ltd., which is owned, operated and maintained by the petitioner itself; and, further, industrial unit for production of gases is also owned, operated and maintained by the petitioner. It is an admitted fact that aforesaid two units were installed by the petitioner at its own cost pursuant to the agreements entered with Tata Steel Ltd. for ensuring continuous supply of gases to Tata Steel Ltd. The meter for measuring the quantity of gases supplied was installed in the periphery of the premises of the industrial unit of the Petitioner and not in the premises of Tata Steel Ltd. Even metering unit and the meter for recording supply of gases to Tata Steel Ltd. are owned, operated and maintained by the petitioner.

5. Under the agreements, the petitioner supplies industrial gases to Tata Steel Ltd. from its air separation plant set-up in its industrial unit, through pipelines and the petitioner recovers two distinct and separate charges from Tata Steel Ltd., namely (1) gas price for supply of gases, and (2) facility charge for provisions, operation and maintenance of the plant, the pipelines and the meter installed at the petitioner’s works.

6. Under the agreements, separate considerations have been provided towards supply of gases and provisions have been made for payment of facility charge at fixed rate per month. A perusal of the clauses of the agreements would reveal that a base monthly facility charge was determined under the agreement, which was to be paid by Tata Steel Ltd. to the petitioner irrespective of supply of gases by the petitioner