Gopal Rao Ekbote, J.
1. These writ petitions raise common question of law. They can, therefore, be conveniently disposed of by a common order. For the purpose of understanding the arguments, we would refer to the facts as they appear in W. P. No. 3645 of 1971.
2. The petitioner is a, firm and has been registered as a dealer under the Andhra Pradesh General Sales Tax Act. The firm carries on a business of supply and stacking of stone ballast to the Southern and South Central Railways.
3. The engineering department of railway calls for tenders for supply and stacking of stone ballast from the contractors for ballasting of new railway track or making up deficiency of ballast of the existing track. The petitioner-firm being the lowest bidder at the tenders invited by the railway obtained several contracts and entered into agreements with the railways from 1964 to 1969 as referred to in the affidavit of the petitioner.
4. It is said that the work which is lequired to be carried on under the agreements consists of the following operations: (1) breaking, ballasting or quarrying of boulders from outside railway line; (2) converting boulders into required sizes of stone ballast; (3) transporting the broken stone ballast by the lorries to the site of the works, which is generally situated along the railway line or at different places in the station yards; (4) screening stone ballast from any dust and removing undersized or oversized stones; (5) stacking the ballast along the railway line or in station yards or over banks or in cuttings; (6) training out or leading into track the stone ballast from the stacks is also done by the contractor in certain cases.
5. All the contracts referred to above are of identical nature. The petitioner obtained lease-hold rights from the Government of Andhra Pradesh under the Andhra Pradesh Minor Mineral Concession Rules for quarrying out the stone for the execution of the work at a fixed rent. The particular quarry was obtained by the petitioner at a fixed annual rent of Rs. 1,200 plus a cess of Rs. 444 per annum.
6. The petitioner voluntarily submitted assessment returns for the years 1963-64 to 1969-70 both inclusive. It did not claim any exemption urging that the agreements with the railways constitute 'works contracts' and, therefore, the turnover of such a contract is exempt from the levy of sales tax. The firm was consequently assessed to sales tax for all these years. The details of the assessment and the tax for these years are shown in the petition together with the dates on which the assessment orders were passed. The petitioner paid in all Rs. 1,17,271 by way of tax for these years.
7. The petitioner, however, claimed exemption for the year 1970-71. Its turnover for that year was Rs. 48,000 regarding such work done in pursuance of the agreement with the railways. The Commercial Tax Officer, Vijayawada, accepted the claim that the said turnover relates to the execution of the works contract with the railways and granted exemption from taxable turnover as per his order dated 29th June, 1971.
8. Having come to know that such turnovers are exempt from the levy of sales tax and having got the assessment order for the year 1970-71 in its favour, the petitioner applied to the Commercial Tax Officer, Vijayawada, through his letter dated 20th August, 1971, claiming refund of the sales tax which the petitioner had paid for the years 1962-63 to 1969-70 on the ground that the tax was paid under a mistake. The Commercial Tax Officer, by his letter dated 4th September, 1971, rejected the claim of refund. Hence this writ petition.
9. It is contended that the contracts undertaken by the petitioner from the railways are works contracts and are not mere sales of ballast to the railways. It is said that in view of the nature of the contract and in view of the operations involved in the execution of such works, the agreements constitute works contracts and are, therefore, exempt from the levy of sales tax. The petitioner therefore has asked to send for the records relating to the assessment orders for the years 1963-64 to 1969-70 passed by the second respondent and to declare that the assessment orders and the collection of tax in pursuance of such orders are illegal, void and unconstitutional. The petitioner also asked for the issue of a writ of mandamus directing the respondents 1 and 2 to refund Rs. 1,17,271, being the tax illegally collected from the petitioner together with interest at 9 per cent, per annum thereon.
10. In a brief counter the respondents submitted that the petitioners were assessed on the basis of returns filed by them voluntarily. No agreements were produced any time before the assessing authority. The petitioners never objected to the levy of tax on the turnovers submitted by them in the returns and voluntarily paid the taxes. It is wrong to contend that they paid the taxes under any mistake of law. The assessment orders have become final long before. The respondents also objected to the filing of a single writ petition for relief relating to several assessment years. Merely because for the year 1970-71 the petitioner was granted exemption it cannot ask for a declaration that the assessment orders which have become final are illegal or ask for the refund of the taxes without getting the assessment orders set aside by adopting remedies available under the Act which it failed to adopt and allowed the assessment orders to become final. Therefore, it is contended that no relief can be granted to the petitioners in these cases.
11. In the view which we are taking in these cases on the merits of the petitions, we consider it unnecessary to determine the preliminary objections taken by the respondents regarding the maintainability of these writ petitions.
12. The principal contention of the petitioners has been that the turnover relating to the works contracts are exempt from the levy of sales tax. According to them, transactions involved in all the agreements do not amount to sale of ballast but execution of works contracts.
13. Now the definition of 'turnover' has an explanation which as far as is relevant reads as follows :
Explanation.-Subject to such conditions and restrictions, if any, as may be prescribed in this behalf-
(i) the amount of such consideration shall, in relation to a works contract, be deemed to be the money payable to the dealer for the supply of materials if the contract for such supply can be separated from the contract for the service and the work done, although the two contracts are embodied in a single document.
14. Clause (t) of Section 2(1) reads as follows :
Works contract' jneans any agreement for carrying out for cash, or for deferred payment, or for other valuable consideration, the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the fitting out, improvement or repair of any movable property.
15. It is a common ground that stacking the ballast of a given size and in accordance with the specification along the railway line, in station yards, over banks or in cuttings amounts to an improvement of immovable property within the meaning of works contract. The question, however, is whether the transactions under the agreements amount to works contracts. In other words, even if it is an improvement of an immovable property, even then are the other requirements of the works contract satisfied in the present case ?
16. It is a common ground that if the transactions under the agreement amount to execution of works contract then the turnovers relating to such transactions are exempt from the levy of sales tax.
17. What then are the tests ordinarily applied for determining whether a particular transaction amounts to a works contract ?
18. In State of Madras v. Richardson and Cruddas Ltd.  21 S.T.C. 245 (S.C.), the assessees without a formal contract, agreed to supply, fabricate and erect steel structures for a sugar factory. The assessees completed the contract. A bill was submitted by the assessees for charges for fabrications, supply and erection of steel structures at certain rates. The High Court of Madras on a consideration of the material on record held that (1) there was a stipulation for consolidated lump sum payment of Rs. 1,160 per ton for fabricating, supplying and erecting at site all steel work, etc.; (2) there was no stipulation for passing of property in the goods to the factory before actual completion of the erection work; (3) that the contract did not contemplate dissecting the value of the goods supplied and the value of work and labour bestowed in the execution of the work; and (4) the predominant idea underlying the contract was the bestowing of special skill and labour by the experienced engineers and mechanics of the assessee.
19. The Supreme Court agreed with the abovesaid view of the High Court and held that the contract was a works contract and not a contract for sale.
20. One can therefore take it that the abovesaid factors considered by the Madras High Court in determining whether a contract is a works contract and approved by the Supreme Court are the tests which can be normally applied to find out whether a transaction is a woiks contract or not.
21. Elaborating the second factor mentioned above, the Madras High Court in Richardson & Cruddas Ltd. v. State of Madras  16 S.T.C. 827 at 851 said:
If the intention and result of the contract is to transfer for a price property in which the transferee had no previous property then the contract is a contract of sale. Where, however, the passing of property is merely ancillary to the contract for the performance of work such a contract does not thereby become a contract of sale.
22. The Supreme Court in Patnaik and Company v. State of Orissa  16 S.T.C 364 at 366 (S.C.), however, warned that mere transfer of property in goods used in the performance of a contract is, however, not sufficient to constitute a sale. There must, be an agreement, express or implied, relating to sale of goods and completion of the agreement by passing of title in the very goods contracted to be sold. If: is the es.sence of the transaction that the agreement and sale should relate to the same subject-matter, i. e., the goods agreed to be sold and in which the property is transferred.
23. Whether a contract is one for execution of work, for performance of service, or is a contract for sale of goods must therefore depend upon the intention of the parties gathered from the terms of the contract viewed in the light of surrounding circumstances.
24. What must follow is that in order to find out whether a particular contract is one for sale of goods or is a contract for service depends upon the main object of the parties gathered from the terms of the contract, the circumstances of the transaction and custom of the trade.
25. In cases of a composite contract, where material is supplied as well as some work is done, the test approved by the Supreme Court in State of Rajasthan v. Man Industrial Corporation Ltd.  24 S.T.C. 349 at 353 (S.C.), is 'whether or not the work and labour bestowed end in anything that can properly become the subject of sale; neither the ownership of the materials, nor the value of the skill and labour as compared with the value of the materials is conclusive, although such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of a chattel'. Thus a. contract of sale is a contract whose main object is the transfer of the property in and the delivery of the possession of, a chattel as chattel to the buyer. Where, on the other hand, the main object of work undertaken by the payee of the price is not the transfer of the chattel qua chattel, the contract is one for work and labour. It is, however, made plain that it is not possible nor is it desirable to evolve any universal rule which would apply to all the cases.
26. T.V.S. Iyengar & Sons (P.) Ltd. v. State of Madras  25 S.T.C. 160 put the same thing in slightly a different manner. It was observed :
Where on a movable property supplied by a customer, a dealer does to or on it some work using his own material in the process, it has to be ascertained from the terms of the contract or the available evidence whether the parties intended delivery of a finished article as a specific chattel though fitted on to the customer's movable property. The test often to be applied to is when and how the property of the dealer in such a transaction with the materials used by him passes to the customer : is it by transfer at the time of delivery of the finished article as a chattel or by accession during the process of a work on affixture or fusion to the movable property of customer If it is the former, it is a sale of goods; if it is the latter, it is a works contract.
27. These are broadly the factors which should go into account while considering the question, the ultimate role being to' find out the object or intention of the parties to the contract. It is not necessary that all these factors would necessarily apply to each and every transaction. Some of them alone may be relevant. What is, however, plain is that whatever factors may be relevant they have to be balanced giving relative importance to such of them as are more relevant and pertinent in the process of resolving this question.
28. It is in this background that we have to examine carefully the terms of the agreements and applying the tests enumerated above, we have to find out whether the transactions constitute sale of ballast or the transactions really constitute works contract.
29. We have already stated the different operations involved in performing the part assigned to the contractors under the agreements. These operations involved in the transactions have not been specifically disputed by the respondents in their counter. We will therefore take it that these are the operations which are involved in the performance of the contract.
30. If the terms of the contract and the operations involved in performance of that contract are carefully analysed, the following conclusions seem to us irresistible :
(1) The agreements are composite agreements. They involve the supply of ballast of a special size and stacking of the same on the railway lines, etc.
(2) The agreements do not contemplate dissecting the value of the ballast supplied and the value of work and labour bestowed in stacking the same.
(3) The payment is to be made not in a consolidated lump sum but at the stipulated rate in view of the measurements taken after stacking the ballast.
(4) There is no specific stipulation for passing of property in ballast to the railway before the ballasts are stacked in accordance with the specification.
(5) In spite of these features of the contract, if the agreements are properly scanned and the operations involved are evaluated properly, one would not hesitate to reach the conclusion that the predominant idea underlying all these agreements was the supply of ballast of a specified size as such and the idea was not the bestowing of any special skill and labour by any experienced engineers, mechanics or the technicians of the contractor. What seems to. be plain is that the object of the parties to the contracts was to supply the ballast of the required size as such and the services rendered in stacking are incidental to the execution of the contract of supply of ballast. The primary undertaking of the contractor was to supply the ballast and deliver them to the railway in a particular manner, that is to say, by scattering them according to the direction contained in the agreement. It is quite relevant to note that this stacking is not done by any skilled labour and is done under the supervision of the engineer of the railways and not of the contractor. It could not be doubted that the supply of ballast to the railways customarily or normally is made by stacking them on the railway lines. Such a stacking, therefore, is an incidental feature of the delivery of ballast. It is only when the ballasts are properly arranged that the delivery of the ballast on the site becomes possible. It is only after such delivery that the determination of price of the ballast, according to the measurement, is possible. It was a common case that the title in the ballast passes to the railway after such delivery.
31. We are not at all impressed with the argument that the contractors have to import special labour from Salem for the purpose of cutting boulders into ballast of specified size and it makes the contract a works contract. If the contractor has agreed to supply ballast of a particular size, he has to cut them to that size before the supply is possible. The work which the contractor does in making the goods ready and fit for supply cannot make the contract of supply of goods as a contract for works.
32. That, this is so, is seen from the following judgments.
33. In Patnaik and Company v. State of Orissa  16 S.T.C. 364 (S.C.) and in McKenzies Ltd. v. State of Maharashtra  16 S.T.C. 518 (S.C.), the question was whether the motor bus bodies prepared and then fitted on to the vehicles was a works contract or was a contract to supply bus bodies. The Supreme Court held that although the bus bodies have to be prepared before they are made ready for supply, the transaction cannot be characterised as a works contract. It was also held that the fixing of these bus bodies on the vehicles is incidental to the supply of the bus bodies. The Supreme Court therefore held, on a consideration of the terms of the contract and the circumstances, that the assessees had agreed to and did supply 'motor bus bodies' and the contract being one for sale of chattel they were liable to pay sales tax.
34. This court, in Pothula Subba Rao v. State of A. P. T.R.C. Nos. 14, 15 and 16 of 1967 dated 31st December, 1970;  30 S.T.C. 69, took the same view.
35. In yet Another case, Chandra Bhan Gosain v. State of Orissa  14 S.T.C. 766 (S.C.), the Supreme Court was concerned with the case of supply of bricks. The Supreme Court observed :
The fact that under the contract the bricks had to be manufactured according to certain specifications and, therefore, the appellant had to bestow a certain amount of skill and labour in the manufacture of the bricks, did not affect the question. The essence of the contract was the delivery of the bricks and it was a contract for the transfer of chattels qua chattels.
36. It is also perhaps relevant to state that the quarry from which the contractor obtained stones admittedly belonged to the contractor. Admittedly, he has obtained it on lease from the Government. It was not the quarry of the railways from where the contractor was permitted to quarry the stones. If the quarry had belonged to the railways, there would not have arisen any question of passing the title in ballast to the railways. Cases of that kind, such as Vairakannu v. Assistant Commercial Tax Officer  29 S.T.C. 137 of the Madras High Court and Commissioner of Sales Tax v. Purshottam Premji  26 S.T.C. 38 (S.C.), of the Supreme Court, to which we were referred to, are not relevant for this case obviously because it is the contractor who continued to own the ballast until he delivered them to the railways and when the property in the ballast passed to the railways.
37. We, for the reasons mentioned above, are satisfied that the agreements in question amount to sales of ballast and do not constitute works contracts. The contractor therefore was rightly assessed on the turnover of the supply of ballast.
38. We are fortified in our view by the following decisions, Mooljee Ramjee & Sons v. Deputy Commissioner (Commercial Taxes)  17 S.T.C. 255, Seth Pamandas Sindhi v. State of Madhya Pradesh  14 S.T.C. 74, Chandra Bhan Gosain v. State of Orissa  14 S.T.C. 766 (S.C.) and Love v. Norman Wright (Builders) Ltd.  1 K.B. 484.
39. We are not persuaded to agree with the decision of the Mysore High Court reported in State of Mysore v. S.R. Bhide  24 S.T.C. 446. With due respect to the learned Judges who decided the case, we find that adequate consideration was hot bestowed to some important factors discussed above. We therefore find ourselves unable to share their view although we must say that we have profound respect for those learned Judges.
40. The only question that survives for our consideration is whether the turnovers relating to such transactions can be taxed only to the extent of price of ballast supplied after making a proper enquiry in that behalf or even that portion of the turnover which really represents the labour charge's can also be taxed. It is also to be considered whether the assessing authority could make enquiry in that behalf even though the agreements are composite ones. These points have not been fully argued before us. Moreover they do not seem to have been canvassed before the appropriate authorities. We find it therefore difficult to decide that question. In the circumstances, it is open to the petitioners to adopt such remedies as are available to them if they think that they are entitled to the refund of the portion of tax which they have paid on the ground that no sales tax could have been levied on that part of the turnover which represents the labour charges.
41. We would, therefore, dismiss the writ petitions with costs, one set in W. P. No. 3645 of 1971. Advocate's fee Rs. 100.