C O M M O N O R D E R

By this common order, both the Writ Petitions are being disposed of.

2. In these Writ Petitions, the petitioner has challenged the impugned common order dated 16.02.2015 passed by the second respondent Appellate Deputy Commissioner (CT), Vellore in A.P.Nos.204 & 205 of 2014. By the impugned orders, the respective appeals of the petitioner were dismissed by the second respondent. These appeals were filed against two separate assessment orders dated 12.05.2014 passed by the third respondent in Rc.B1/1418/2013 for the Assessment Years 2012-2013 and 2013-2014.

3. The petitioner a unregistered dealer under the provisions of the Tamil Nadu Value Added Tax Act, 2006 was issued with a notice by the third respondent Assistant Commissioner, Ranipet (SIPCOT) on

10.01.2014 for the Assessment Years 2012-2013 and 2013-2014.

4. In the notice, it is alleged that the petitioner was providing material handling object, namely, cranes to Bharath Heavy Electricals Limited (hereinafter referred to as BHEL for brevity), the sixth respondent herein, on “transfer of right to use” basis and therefore was liable to pay tax under Section 4 of the Tamil Nadu Value Added Tax Act, 2006. The petitioner replied to the same vide reply dated 23.01.2014. The petitioner also enclosed the copies of the agreements signed with the sixth respondent BHEL. The said notice was culminated in two different assessment orders both dated 12.05.2014 of the third respondent for the Assessment Years 2012-2013 and 2013-2014 respectively.

5. These assessment orders were challenged before the second respondent Appellate Deputy Commissioner (CT), Vellore in A.P.Nos.204 and 205 of 2014. The second respondent Appellate Deputy Commissioner (CT) has upheld the demand confirming the assessment orders passed by the third respondent vide impugned common order dated 16.02.2015.

6. Assailing the impugned common orders, the learned counsel for the petitioner submits that the agreement dated 08.12.2011 signed between the petitioner and the BHEL was a contract of service for supply of tangible goods within the meaning of Section 65(105)(zzzzj) of the Finance Act, 1994 read with Section 66(E)(f) of the Finance Act, 2012. It is submitted that the issue is no longer res integra in the light of the decisions of the Hon'ble Supreme Court in State of Andhra Pradesh and Another Vs. Rashtriya Ispat Nigam Ltd., (2002) 126 STC 114 and in Aggarwal Brothers Vs. State of Haryanana, (1999) 113 STC 317 (SC) : (1999) 9 SCC 182 and in Bharath Sanchar Nigam Limited and Another Vs. Union of India and Others, (2006) 145 STC 91 :

(2006) 3 SCC 1.

7. The learned counsel for the petitioner submits that the issue is also covered in favour of the petitioner by the decision of the Division Bench of this Court in Aban Loyd Chiles Offshore Limited Vs. State of Tamil Nadu, (2012) 53 VST 89 (Mad). The learned counsel for the petitioner also drew my attention to the following Clauses from the agreement dated 07.12.2011 signed between the petitioner and the sixth respondent BHEL, which indicates that the sixth respondent BHEL had hired 10T Mobile Cranes numbering 11/12 on daily rental basis for material handling requirements for their factory premises. Attention was drawn to some of the Clauses from the agreement which reads as under :-

7. The working hours of operation will be from 08.00 Hrs to 16.30 Hrs, 16.30 Hrs to 01.00 A.M & 14.00 Hrs to 22.30 Hrs (Excluding Lunch Break of 30 Minutes). If necessary during exigencies, the cranes would be operated beyond the above period also on either sider for which pro rata payment shall be made.

09. Crane crew, consisting of one operator and two riggers, shall be provided for each crane.

11. The crew worked in first shift shall not be engaged in the second shift.

16. However during such absence, contractor will be permitted to provide alternate crane in good working with prior permission of BHEL, in which case penalty as per the clause 15 will not be levied.

19. The contracto