( 1. ) THE order passed in the present writ petition shall govern the disposal of Writ Petitions bearing number W. P. No. 3657/2008 - M/s BOC india Ltd. vs. State of M. P. and others, W. P. No. 3846/2008 - Neo Structo construction Ltd. v. State of M. P. and others, W. P. No. 4271/2008 - M/s naftogaz India Pvt. Ltd. v. State of M. P. and others, W. P. No. 4274/2008 -M/s Naftogaz India Pvt. Ltd. v. State of M. P. and others, W. P. No. 1802/2008- Patron Engineering Construction Ltd. v. State of M. P. and others, W. P. No. 4562/2008 - M/s. MSK Projects (India) Ltd. v. State of M. P. and others, W. P. No. 4564/2008 - M/s. MSK Projects (India) Ltd. v. State of M. P. and others, w. P. No. 4567/2008 - M/s. MSK Projects (India) Ltd. v. State of M. P. and others, w. P. No. 6968/2008 - M/s. S. K. B. Builders and fabricators v. State of M. P. and ors. , W. P. No. 5420/2008 - Bridge and Roof Co. (India) Ltd. v. State of M. P. and others, W. P. No. 5421/2008 - M/s. Bridge and Roof Co. (India) Ltd. v. State of M. P. and others, W. P. 5422/2008 - M/s. MSK Projects (India) Ltd. v. State of M. P. and others, W. P. No. 6361/2008 - M/s. Thermax Limited v. State of M. P. and others and W. P. No. 9353/2008 - M/s. Pace Process Controls Pvt. Ltd. v. State of M. P. and others; wherein, challenge put-forth is to an order passed by the Assessing Officer under the Building and Other Construction Workers welfare Cess Act, 1996 (hereafter referred to as Cess Act of 1996) and the rules made thereunder, viz. , the Building and Other Construction Workers Welfare cess Rules, 1998 (hereafter referred to as Rules of 1998); whereby, the petitioner contractors and the Bharat Oman Refineries Ltd. been subjected to the levy of cess.

( 2. ) FACTS briefly are that, Bharat Oman Refineries Limited is a joint venture company brought into existence vide joint venture agreement entered into between the Bharat Petroleum Corporation Limited and Oman Oil Company Limited, and incorporated under the Companies Act, 1956 (hereafter referred to as Company ). The Company is constructing an oil refinery in village Agasod, tehsil Bina district sagar, M. P. with an estimated cost of more than rupees ten thousand crores. To facilitate commissioning thereof within the stipulated time the company has engaged 37 contractors who are issued work orders between 18. 4. 2006 to 4. 9. 2007 for various building or other construction works. As a result whereof the petitioners are subjected to levy of cess under the Cess Act of 1996 and the Rules of 1998 by the impugned order @ 1 % of the cost of construction incurred.

( 3. ) THE contractors questions the levy on the grounds that they are not the employer but are employed by the company and, therefore, they cannot be held liable for cess which is levied and collected from the employer. Furthermore, it is urged that even if for the sake of argument the contractors are termed as employer, then the nature of work which they are engaged in is governed by the Factories act, 1948 and, therefore, are excluded from applicability of the Cess Act of 1996 and the Rules, 1998 made thereunder. In the alternate it is contended that the assessment of cess is not in accordance with the provisions contained in Rules of 1998.

( 4. ) TO substantiate the contentions the learned counsel appearing for the petitioner contractors has led this Court through various provisions not only of the act of 1996 and Rules 1998 made thereunder, but also of the provisions contained in the Building and Other Construction Workers (Regulation of Employment and conditions of Service) Act, 1996 (referred to as Construction Workers Act, 1996)and the Factories Act, 1948. Placing reliance on Section 2 (d) of the Construction workers Act, 1996 it is contended that, the "building and other Construction Work" does not include any building or other construction work to which provisions of the Factories Act, 1948, apply. It is urged that since the company is governed by the Factories Act