INDIAN OXYGEN LIMITED Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THESE five appeals are filed by the same appellant against the orders of the Appellate Deputy Commissioner (CT), Kakinada, arising out of the orders of the Commercial Tax Officer, Company Circle, Visakhapatnam. As a common issue is involved, the appeals are taken up together for disposal by a common order. Particulars of the appeals are as follows: -

(2.) THE point to be considered is: - Whether the disputed turnovers as above comprising 'cylinder holding charges' and 'facility charges' are exigible to tax under Section 5E of the APGST Act?

(3.) COUNSEL for the appellant next pleaded that the cylinder holding charges included 'facility charges' for each of the years under consideration, which were received for installation of liquid oxygen vessels at the site of the customer. It was urged that this item was not separately argued before the lower authorities, but that it should now be taken note of as standing on a different -footing from cylinder holding charges and that the liquid oxygen vessels constitute 'plant' belonging to the appellant which is installed at the customers' site in respect of bulk consumers. The plant consists of evaporators which convert the liquid oxygen into the gas as the plant is operated. He referred to the terms of the installation of this kind of plant and high -lighted the facts that while appellant undertook to supply the plant, it was the customer's obligation to provide the necessary Civil Works for installation and to supply and erect conduits and/or carrier wires, electrical facilities and requisite power supply. The appellant undertook to maintain the plant which remained the property and the appellant. In consideration of use of the Apparatus/Plant, the customer shall pay 'facility charges' at the beginning of every month. The counsel for the appellant relied on a decision of the Madras High Court in Madras Petrochem Ltd. Vs. Commercial Tax Officer and Others (103 STC 54), wherein the petitioner permitted Madras Refineries Ltd., to use for storage against for collection of the charges, its oil tankers of huge capacity permanently embedded in the earth these tankers were held to be immovable properties within the meaning of the Transfer of Property Act, 1882, and not goods to be hired for use and consequently the charges received by the petitioners not 'taxable turnover' within the meaning of Section 3A of the Tamil Nadu Sales Tax Act.