National Organic Chemicals Industries Ltd. vs State of Maharashtra

R.Y. Ganoo, J.—The applicants, namely, M/s. National Organic Chemical Industries Ltd., filed Reference Application No. 24 of 2002 before the Maharashtra Sales Tax Tribunal, Mumbai (for short, "said Tribunal") praying for a reference be made to this court in regard to the judgment dated November 29, 2001, passed by the said Tribunal in Second Appeal No. 805 of 2000. The said Tribunal considered the said application and passed an order on December 31, 2003, thereby agreeing to make a reference. By the aforesaid order dated December 31, 2003, the following questions were referred to this court for its decision :

Q. (1) Whether, on the facts and circumstances of the case and having regard to the terms of the contract entered into between the parties, the Tribunal was legally justified in holding the impugned transactions effected to M/s. Assam Gas Company Limited (wherein the materials have been supplied and installed) as divisible ones and hence inter-State sales of goods liable to tax under the Central Sales Tax Act, 1956 ?

Q. (2) Whether, on the facts and circumstances of the case and having regard to the terms of the contract entered into between the parties, the Tribunal was justified in holding the impugned transactions to M/s. Assam Gas Company Limited (wherein the materials have been supplied and installed) as not indivisible and hence not works contract ?

Few facts necessary for the purposes of answering this reference are as under :

The return filed by the applicants for the assessment year April 1, 1994 to March 31, 1995 was considered by the assessing officer, i.e., Assistant Commissioner of Sales Tax (Asstt.), B/254, Nagpur Division, Akola. The said assessing officer by his assessment order dated December 7, 1997 called upon the applicants to pay amounts towards the Central sales tax more particularly stated in the order dated December 7, 1997. Penalty in terms of section 9(2) of the Central Sales Tax Act (hereinafter referred to as "the said Act") read with section 36(2)(c), Explanation I was levied to the tune of Rs. 13.25 lakhs. Interest was also ordered. By the said order, demand for Rs. 33,32,277, was raised against the applicants. It is required to be mentioned that the aforesaid order dated December 7, 1997, covered the transaction entered into on behalf of the applicants with M/s. Assam Gas Company Ltd. (for short, "Assam Gas") for the performance of the work of laying HDPE pipe for transportation of natural gas. The assessing officer considered the transaction with Assam Gas as a divisible transaction which could be divided into two parts, namely, sale of HDPE pipes and installation of the same as per the contract with Assam Gas.

The order dated December 7, 1997, passed by the assessing authority was challenged by filing an appeal u/s 9(2) of the said Act and section 55(6) of the Bombay Sales Tax Act, 1959. The Deputy Commissioner of Sales Tax (Appeals), Nagpur, heard and decided the said appeal. He passed an order dated April 28, 2000. Reading of the order dated April 28, 2000, indicates that the contention of the applicants that the contract with Assam Gas was indivisible inter-State works contract and as such no liability under the said Act could be fastened was rejected. By the said order, balance demand to the tune of Rs. 28,08,327 was ordered to be recovered. The applicants were aggrieved by the aforesaid order dated April 28, 2000. They, therefore, filed Second Appeal No. 805 of 2000 before the said Tribunal. The said Tribunal by its judgment and order dated November 29, 2001, confirmed the view taken by the assessing officer as well as the Deputy Commissioner of Appeals and rejected the contention of the applicants that the transaction with Assam Gas was an indivisible inter-State works contract. The said Tribunal gave directions to redetermine the tax liability by indicating the manner in which the tax liability should be calculated. As mentioned earlier, the applicants were aggrieved by the judgment and order dated November 29, 2001, passed by the said Tribunal and that the applicants'' request for making a reference to this court was accepted by the said Tribunal.

The learned advocate Mr. P. C. Joshi had taken us through the entire record. Learned advocate Mr. Joshi had made available to the court a copy of the agreement dated November 23, 1994 (for short, "said Agreement") executed between Assam Gas and M/s. Polyolefins Industries Ltd. It is required to be noted that the company, namely, M/s. Polyolefins Industries Ltd. was taken over by the present applicants and that is how orders are passed against applicants.

The learned advocate Mr. Joshi appearing on behalf of the applicants submitted that the authorities below did not take into consideration the terms and conditions incorporated in the said agreement for the purposes of deciding the question whether the transaction with the Assam Gas was an indivisible inter-State works contract.

The learned advocate Mr. Joshi had submitted that in order to appreciate the terms on which the applicants had agreed to carry out work for Assam Gas, it would be proper to consider the terms of the said agreement. He had submitted that for the purposes of deciding as to whether the transaction between the applicants and Assam Gas was a works contract or a contract to supply pipes and installation of the same the terms appearing in the said agreement would be relevant. He submitted that the authorities who passed the orders ought to have considered those terms while deciding the matter. Learned advocate Mr. Joshi had drawn our attention to clause 1(e) by which the term "delivery" was defined. Mr. Joshi had submitted that this word "delivery" should not be interpreted to mean that the pipes were delivered by the applicants to Assam Gas. According to him a reading of the said term "delivery" would mean that the said pipes were to be handed over to Assam Gas for the purposes of storage prior to starting of the work.

The learned advocate Mr. Joshi had thereafter submitted that clause 3 of the said agreement titled as "scope of work" if considered in its entirety would clearly goes to show that the transaction with Assam Gas was to complete the project of laying down HDPE pipes for transportation of natural gas. Learned advocate Mr. Joshi had submitted that the manner in which the clause 3 "scope of work" was worded and the manner in which the parties were to act in terms of the said clause, it was clear to the parties that the pipes would be carried to the site where they were to be laid and the pipes would be laid ultimately to see that the pipelines is created for transportation of natural gas.

The learned advocate Mr. Joshi had drawn our attention to clause 9 "payment terms" and had submitted that the applicants were to get monies from Assam Gas on the basis of the work done at various stages and not in two parts, namely, supply of pipes being one part and installation of the said pipes as per the requirements of Assam Gas as second part. Learned advocate Mr. Joshi had thereafter taken us through clause 15 and had submitted that by the said clause, the arrangements were arrived at to see that the material will be provided by the Assam Gas to the applicants depending upon the requirement of the applicants. Learned advocate Mr. Joshi had also pointed out that clause No. 21 "responsibilities of contractors" where it is specifically mentioned that the materials, labour, tools and equipments are to be furnished by the applicants since the work awarded to the applicants was on a trunkey basis. Mr. Joshi submitted that clause 21 clearly indicated that the applicants were required to take up the project of laying of the pipelines as a whole and the terms of the contract were indivisible.

The learned advocate Mr. Joshi had taken us through annexure I to the said agreement. He had submitted that in the said annexure I, detailed figures were mentioned to show in what way the applicants would be charging the Assam Gas for the purposes of work done. According to Mr. Joshi since the applicants were to charge Assam Gas on the basis of work done at the rate specified for the individual item, it would go to show that the contract with the Assam Gas was indivisible and it could not be divided into two parts, namely, supply of material and installation of the said material at site.

The learned advocate Mr. Joshi submitted that the authorities below merely relied upon the work order dated September 8, 1994 and the invoices prepared by the applicants. Learned advocate Mr. Joshi had submitted that the said invoices were raised by the company for the limited purpose of complying with the provisions of the excise duty provisions and were not the invoices to show that the HDPE pipes were sold to the Assam Gas. Learned advocate Mr. Joshi had drawn our attention to exhibit F, page 47 of the paper book to support the aforesaid contention. He had pointed out that a specific endorsement was passed on the invoice to show that the goods covered by the said invoices were for the home consumption. Learned advocate Mr. Joshi had drawn our attention to the specimen invoice at page 47 and had pointed out that a specific endorsement was passed on the said invoice "no tax being works contract". Learned advocate Mr. Joshi had submitted that this endorsement was specifically made as this invoice was not to operate as a invoice to show that the company had sold HDPE pipes to Assam Gas.

The learned advocate Mr. Joshi had further submitted that for the purposes of demanding money from Assam Gas, the applicants had raised invoices in regard to the actual amount payable by Assam Gas. He referred to these invoices as "commercial invoices". He had drawn our attention to a specimen invoice at page 50 of the paper book. He had pointed out that the invoice specifically indicates the total quantity of pipes used in the performance of the works contract and the rate charged was on the basis of the terms which are mentioned in annexure I of the said agreement. Learned advocate Mr. Joshi submitted that the authorities below while passing the orders erred in relying upon the invoices which were raised for the limited purpose of complying with the excise duty provisions.

The learned advocate Mr. Joshi had submitted that the authorities below had erred in not considering the various terms of the said agreement which would go to show that the said agreement was indivisible. He further submitted that reliance placed on the work order dated September 8, 1994 and the invoices raised by the applicants for the purposes of compliance of excise duty provisions, was erroneous.

The learned advocate Mr. Joshi had submitted that the reaching of pipes at the site was not as and by way of as a result of the sale in favour of the Assam Gas but the said pipes reached at site for the performance of the works contract and to complete the project as mentioned in the said agreement. Learned advocate Mr. Joshi submitted that on proper interpretation of the said agreement, the invoices raised by the applicants to comply with the excise duty provisions and commercial invoices raised for the purpose of demanding actual amount from the Assam Gas would go to show that the transaction between the applicants and the Assam Gas was an indivisible inter-State works contract and as such liability under the said Act would not be attracted.

The learned advocate Mr. Joshi had submitted that the reference made by the said Tribunal in its judgment dated November 29, 2001 to the 46th Amendment to the Constitution of India by which the concept of divisible contract and indivisible contract had come to an end was not warranted as the liability under the said Act for transfer of property in goods involved in the execution of works contract could be fastened only after May 11, 2002 when the definition of the term "sale" appearing in the said Act came to be amended on account of Amendment Act 20 of 2002. Learned advocate Mr. Joshi had, therefore, submitted that prior to May 11, 2002, in order to fasten the liability under the said Act, it was necessary for the authorities concerned to arrive at a conclusion as to whether the transaction in question is divisible contract or indivisible contract.

The learned advocate Mr. Joshi had submitted that the question whether works contract could be divisible or indivisible would ultimately depend upon the facts and circumstances of the case and no straight jacket formula could be laid down. Learned advocate Mr. Joshi had submitted that the approach of the authorities below was not proper in the facts and circumstances of this case.

The learned advocate Mr. Joshi appearing on behalf of the applicants had relied upon the judgment in the case of Arun Electrics, Bombay v. Commissioner of Sales Tax, Maharashtra State reported in [1966] 17 STC 576 (SC). He had taken us through the said judgment and drawn our attention to the observations of the Supreme Court where the Supreme Court had observed that whether in respect of a transaction sales tax is exigible may be determined only on the terms of the contract and not from the invoices issued by the person entitled to receive money under the terms of the contract. He had further drawn our attention to the observations of the Supreme Court that the invoice did not represent any transaction nor did it evidence a contract for work or for sale of goods. Learned advocate Mr. Joshi had submitted that the submission of the applicants before the authorities below that the invoices raised for the purposes of complying with the excise duty provisions would not determine the nature of the contract should have been accepted by the authorities. He submitted that by not accepting this contention, the authorities have erred. Learned advocate Mr. Joshi had also relied upon the judgment in the case of State of Rajasthan v. Man Industrial Corporation Ltd. reported in [1969] 24 STC 349 (SC). This judgment was relied upon to show that the goods which were used in the performance of the contract would pass on the completion of the work and not before. He relied upon this judgment to contend that the property in the pipelines would pass in favour of Assam Gas only after the work of laying of pipes would be complete in accordance with the terms of the said agreement.

The learned advocate Mr. Joshi had, therefore, submitted that the reference is required to be answered in favour of the applicants by holding that the transaction with Assam Gas was indivisible. He further submitted that if contract with Assam Gas is treated as indivisible, no tax liability can be imposed upon the applicants under the said Act and orders passed by the authorities under the said Act directing the applicants to pay the amounts towards Central sales tax as well as penalty and interest are required to be set aside.

The learned advocate Mr. Sonpal appearing on behalf of the respondents-State opposed the submissions advanced by the learned advocate for the applicants and tried to justify the orders passed against the applicants. He submitted that the reference should be answered to hold that the transaction with the applicants and Assam Gas was divisible and that the said transaction could be divided into two parts, namely, contract for sale of pipes to Assam Gas and contract of laying of pipes for the benefit of Assam Gas.

The learned advocate Mr. Sonpal had taken us through the very clause on which reliance was placed by learned advocate Mr. Joshi appearing on behalf of the applicants, namely, clause 1(e) "delivery". Clause 3 "scope of work", clause 9 "payment terms" and clause 21. In addition to the aforesaid clauses, he had relied upon clause 23 "care of material and equipment furnished by the company". Learned advocate Mr. Sonpal submitted that on proper interpretation of these clauses, the transaction with Assam Gas be treated as divisible.

The learned advocate Mr. Sonpal submitted that since in the annexure I cost of the material to be used while performing the contract and cost of installation is shown separately, it was easily possible to divide the total amount payable to the applicants into two parts, namely, cost towards supply of pipes and other materials and charges for laying down the pipelines.

The learned advocate Mr. Sonpal had submitted that the authorities below had rightly referred to the work order dated September 8, 1994 as the said work order formed an integral part of the works contract. Learned advocate Mr. Sonpal had also relied upon the text of the invoices which were raised by the applicants. According to him, the very fact that the invoices were raised in regard to the pipes, the contention of the respondents that the transaction between the applicants and Assam Gas consisted of two parts, namely, supply of pipes and laying down the pipeline is made out. Learned advocate Mr. Sonpal had drawn our attention to paragraph 7 of the judgment delivered by the Tribunal where there is a reference to raising of credit notes by the applicants in regard to the material which ultimately was not used for installation. According to him, raising of credit notes by the applicants in regard to certain material which was returned by the Assam Gas as the one not utilized while performing the contract goes to show that the said material was sold by the applicants to Assam Gas.

The learned advocate Mr. Sonpal had relied upon the judgment delivered by the State Taxation Tribunal, Rajasthan in the case of Indian Hume Pipe Co. Ltd. v. State of Rajasthan [2000] 117 STC 318 (RTT) to submit that if a contract can be divided into two parts as supply of goods and rendering services, a liability under the Sales Tax Act would be attracted.

The learned advocate Mr. Sonpal had relied upon the judgment of Karnataka High Court in the case of H. Y. Jadhav v. State of Karnataka reported in [1981] 48 STC 496 (Karn). This case involved supply of ballast to the railways and stacking the same. In this case, the Karnataka High Court ultimately came to the conclusion that a contract under which an assessee agrees to supply jelly (ballast) to the purchaser with the condition that jelly (ballast) would be stacked in the particular manner before delivery would not amount to a contract for a work or composite contract for sale of goods and for work but only amounts to a contract of sale. According to learned advocate Mr. Sonpal, in the present case, the applicants agreed to supply pipes to Assam Gas and laying of the said pipeline was a part of the term of supply and, therefore, the liability under the said Act was rightly fastened upon the applicants. Learned advocate Mr. Sonpal had, therefore, submitted that the order passed by the assessing officer has been rightly confirmed by the said Tribunal and it needs no interference. He submitted that the reference should be answered in favour of the respondents.

We have heard learned counsel on both sides and we have perused the entire record. We have also perused the judgments which have been cited across the bar. The applicants executed the said agreement dated November 23, 1994 with Assam Gas for the performance of work of laying HDPE pipe for transportation of natural gas as specified in the "scope of work" as set out in clause 3. It would be necessary to quote clause 3 "scope of work" as the interpretation of the said clause along with other clauses would determine the nature of the contract, namely, whether the said contract was an indivisible inter-State works contract or a contract to supply pipes and a contract to lay down the pipes as per the requirement of Assam Gas.

scope of work

The scope of this contract includes supply of HDPE pipes of various sizes (as mentioned in annexure 1) and all HDPE on line fittings, cleaning/clearing of ROW, hauling and stringing of pipes, trenching (minimum depth will be 0.9 mtr. From the top of the pipe to ground surface), welding, laying testing of pipeline as per specifications, road crossings and restoration of the surface of the road to its original condition, Nullah crossing, river crossing etc., Supply and installation of marker posts, constructions of valves chambers including supply of all materials, constructions of PRS including supply of brick, cement, M. S. rod, M. S. door, safety valve, control valves, AUDCO valves, M. S. piping and other small items, testing of lines at 6 kg/sq.cm. and commissioning of the whole system as per specifications. All equipments involved for execution including testing and commissioning of the above job shall have to be supplied by the contractor and the company will be liable for clearance of R. O. W. Supply of all on line non-HDPE materials, MS line from trunk line Tee point to PRS station with a valve, flange only.

We have perused the clause 3 "scope of work". We have also perused the other clauses which are referred to in the earlier part of the judgment and in particular clause 9 "payment terms", clause 15, clause 21 and clause 23. We have also perused the annexure I by which the parties had agreed to the rates forming the consideration in the contract. After having gone through the relevant clauses, we are inclined to observe that the said agreement between the applicants and the Assam Gas was a works contract and it could not be divided into two parts, namely, contract to supply the pipes and a contract to lay down the pipelines. The use of HDPE pipes was an integral part of the performance of the contractual obligation by the applicants inasmuch as the applicants were required to lay down the tranches and lay down the pipes which would be reaching at site. In order to comply with the contractual obligation cast on the applicants, the applicants were required to do various acts set out in clause 3 "scope of work" ultimately to sec that the HDPE pipes are laid for transportation of natural gas. In our view, the acts to be committed by the applicants could not be divided into two parts, namely, supply of pipes and laying down the pipes. The payment terms set out in the clause 9 clearly indicates that the applicants were entitled to get money from Assam Gas depending upon the performance of various acts required to be done for the successful fulfilment of terms of the contract. The applicants were entitled to have mobilization of advance to the extent of 10 per cent of the contract value on furnishing of bank guarantee from a nationalized bank for equal amount with the work order. Clause 9 refers to the term "contract value" and in our view use of this term contract value clearly indicates that the consideration payable to the applicants was to be calculated as a whole and not in parts as suggested by the respondents. If at all the contract was intended to be divided into two parts, the said payment terms would have indicated that the applicants would be entitled to get cost of the pipes on delivery of required quantity of pipes to be used for the purposes of laying the pipes. In substance, the payment terms set out in the said agreement speak in favour of the applicants that the contract was to be read as an inter-State indivisible works contract. Clause 21 specifically mention that the work was awarded to the applicants on a turnkey basis. The use of the term "turnkey basis" would clearly indicate that the parties intended to look to the transaction as a whole and not as a transaction which could be divided into two parts as has suggested by the respondents.

Having considered the various clauses of the said agreement, we are in agreement that the submissions advanced by learned advocate Mr. Joshi appearing on behalf of the applicants that the transaction between the applicants and the Assam Gas was indivisible inter-State works contract.

We have considered the argument advanced by learned advocates on both sides with reference to the contents of annexure I. By said annexure I, parties had arrived at an understanding as to at what rate the job done by the applicants would be charged. The arguments advanced by learned advocate Mr. Sonpal that the cost of the pipe was separately shown cannot be accepted to hold that the pipes were merely sold to Assam Gas. If that would have been the understanding between the parties, the terms of the annexure I would have been different inasmuch as the installation rate rupees per meter would not have been quoted to form a part of the total amount payable in respect of a particular description of a pipe. Annexure I also indicates the expected quantity of pipes which would be required for the purposes of laying down the pipeline as per the terms of the agreement. The amount of money payable was dependant upon total quantity of pipes which would be used to create the pipeline. Same is the case as regards the various items which are mentioned at Sr. No. 2 to 7 in annexure I, We are, therefore, inclined to accept the submission of learned advocate Mr. Joshi that monies payable to the applicants were in regard to the work to be carried out in its entirety. Learned advocate Mr. Joshi''s submission with reference to the raising of invoices is required to be accepted to hold that the transaction between the applicants and Assam Gas was indivisible for the purposes of determining the liability under the said Act. A typical invoice at page 47 raised by the applicants was so as to comply with the provisions of the excise duty provisions. Similarly, a typical invoice being commercial invoice raised by the applicants is produced at page 50. The argument advanced by learned advocate Mr. Joshi that the applicants were obliged to raise the invoice at the time of taking out the pipes out of the factory premises to comply with the excise duty provisions is required to be accepted. The said invoice at page 47, specifically mentions that the articles mentioned in the invoice are for home consumption. This would mean that the said articles were not to be sold in the market but the said articles were to be used in performance of an obligation cast upon the applicants to comply with the said agreement. The fact that the said invoice was raised in the name of Assam Gas clearly indicates that pipes mentioned in the said invoice were to be used in performing the contract. It is pertinent to note that the applicants have specifically passed an endorsement "no tax being works contract". In our view, this endorsement would support the stand of the applicants that the invoices were not raised to show that goods covered by the invoices were sold to Assam Gas. The said invoices appear to have been raised to show that the particular quantity of pipes will be used while performing the works contract with Assam Gas. The applicants have raised commercial invoices and one such invoices is at page 50. Reading of the said commercial invoices would clearly go to show that the amount mentioned in the said invoice was being claimed by the applicants on account of performance of the said agreement. The rates quoted in the said invoices tally with the rates mentioned in annexure I. In substance, the applicants wanted Assam Gas to pay monies as per the commercial invoices which included amounts for the installation of the pipelines. In our view, the authorities below erred in placing reliance on the invoices which were raised by the applicants to only comply with the excise duty provisions.

The work order dated September 8, 1994 at page 37 of the paper book is relied upon by the respondents to contend that the said work order formed an integral part of the works contract. No fault can be found in relying upon such work order. At the same time, the authorities concerned ought to have noted clause 19 of the said work order which stated as under :

All the terms and conditions will be incorporated in the agreement to be executed between you and the Assam Gas Company Ltd. which is under preparation.

A reading of this clause would go to show that the real terms on which the parties were to act and the real terms which would bind the parties for the purposes of tax liability were the terms to be incorporated in the said agreement. Reading of the orders passed by the authorities below including the said Tribunal clearly indicates that due weightage to the various clauses of the said agreement was not given by the authorities and the authorities wrongly interpreted the transaction between the parties as a divisible contract and accordingly fastened the liability under the said Act upon the applicants. In our view, the demand raised against the applicants under the Central sales tax on the basis of the said agreement was not proper.

It is true that the distinction between a divisible contract and an indivisible contract came to an end after the 46th Amendment to the Constitution of India, however, liability to pay Central sales tax covered by property in goods involved in the works contract could be fastened only after May 11, 2002 when the definition of term "sale" was amended on account of Act 20 of 2002. Hence, the submission of Mr. Joshi that Central sales tax could not be levied is correct.

So far as the issue of credit notes issued by Assam Gas, the assessing authority did not allow the deduction of these credit notes. This would show that the HDPE pipes were not sold to Assam Gas.

We have gone through the judgments relied upon by the learned advocates on both sides. The judgment relied upon by the respondents in the case of Indian Hume Pipe Co. Ltd. v. State of Rajasthan [2000] 117 STC 318 (RTT) will have no application to the facts of this case as the said judgment pertained to the imposition of tax liability under the State sales tax law. In the present case, we are concerned with the imposition of liability under the Central Sales Tax Act.

Reliance placed by the learned advocate Mr. Sonpal on the judgment in the case of H. Y. Jadhav v. State of Karnataka [1981] 48 STC 496 (Karn) will have no application to the facts of this case inasmuch as the facts covered by the said case are distinguishable. In the said case, the party was required to supply ballast to the railways and while doing so they were required to stack it in a particular manner before actually delivering the goods to the railways. In the present case the applicants were required to perform the contract of laying of pipelines as a whole as set out in the clause 3 "scope of work" of the said agreement. We have already indicated as to how the said agreement will have to be considered as an indivisible inter-State works contract.

The reference to the judgment in the case of Arun Electrics, Bombay [1966] 17 STC 576 (SC), by learned advocate Mr. Joshi was proper inasmuch as the bare reference to the invoices raised by a party for the purposes of determining the real nature of contract is not proper. The terms of the contract would definitely determine whether the said contract was divisible into two parts.

The judgment in the case of State of Rajasthan v. Man Industrial Corporation Ltd. [1969] 24 STC 349 (SC) can be distinguished. The stand of the respondents that on reaching of the pipes at the site had the effect of passing on the product in favour of the Assam Gas can be negatived. Looking to the terms of the agreement as a whole, the property in pipes which were to be used for creation of a pipeline would pass on only after the applicants completed acts to be performed by them as per the terms of the agreement.

For the reasons mentioned aforesaid, we have to hold that the assessment order dated December 7, 1997 passed by the Assistant Commissioner of Sales Tax, order dated April 28, 2000 passed by the Deputy Commissioner of Sales Tax (Appeals), Nagpur and the order dated November 29, 2001, passed by the Tribunal cannot be sustained and are set aside. For the reasons mentioned aforesaid, both the questions are answered by holding that the transaction to supply and laying down the pipe being inseparable, it would constitute works contract and to such a works contract, the liability to pay Central sales tax would arise only after May 11, 2002 and since the transaction in the present case pertains to the period prior to May 11, 2002, the applicant would not be liable for Central sales tax. In the facts and circumstances, there shall be no order as to costs.