A. Pasayat, J.
1. The six applications under Section 24 (1) of the Orissa Sales tax Act, 1947 (in short, the 'Act') and the writ applications are interlinked, and therefore, are disposed of by this common judgment.
2. M/s. Dredging Corporation of India (hereinafter referred to as 'assessee') entered into an arrangement with Paradip Port Trust (hereinafter referred to as 'Port Trust') for the purpose of dredging outer approach channel, inner approach channel, entrance channel, turning circle/lagoon, general cargo berth/ iron ore berth, fertilizer berth, mooring berth and sand trap of Port Trust. Payments made by the Port Trust to the assessee were treated as hire charges for transfer of the right to use dredgers for specified period and as such tax was levied thereon purportedly under Section 2 (g) (iv) of the Act. For years 1984-85 and 1985-86 assessments were made under Section 12 (8) of the Act. For year 1986-87 assessment was completed under Section 12 (4) of the Act, Demands raised included penalties for the first two years. Assessee's stand that there was no transfer of right of user, which is sine qua non for application of Section 2 (g) (iv) of the Act was not accepted by the assessing officer. Assessee preferred appeals before the Assistant Commissioner of Sales-tax, Cuttack, II Range, Cuttack, who confirmed the assessments. Thereafter, assessee preferred second appeals which were heard by a Full Bench of Orissa Sales-tax Tribunal (in short, 'Tribunal'). Assessee's stand was that the forums below went wrong by treating payments received by it as consideration towards the hire charges of such dredging vessels during the period in question, though in fact such payments are nothing but service charges for the special work of dredging the port area with required specification. Nature of works involved in dredging operation is purely a service contract and as such bills raised for the purpose of said work cannot be treated as sale price even after amendment to the Constitution of India by the 46th Constitutional Amendment, 1982. Revenue's stand on the other hand was that intention of the parties was very much explicit in terms of the contract that such payments were towards hire charges of those vessels which were brought for the purpose of removing silts and dirts lying underneath the port site and to clean the mouth of the Port and other selected areas. Tribunal noticed that three types of dredging operations were contracted to be performed, i.e., (i) capital dredging for fertilizer berth, (ii) dredging of 2nd cargo berth, and (iii) dredging of slip-way and wet basin of Port Trust. There was a difference of opinion amongst the members, while Accounts Member held that the amounts were received by way of service charges, Chairman and Judicial Member took a contrary view. Therefore, by majority view the appeals were dismissed.
On being moved by applications under Section 24 (1) of the Act, following questions have been referred to this Court for opinion.
(i) Whether on the facts and in the circumstances of the case, the Orissa Sales Tax Tribunal is correct to hold that the payments received by the assessee during the years in question come under the definition of 'sale' as per Section 2 (g) (iv) of the Orissa Sales-tax Act, 1947 or the same is received towards service charges as claimed by the assessee ?
(ii) Whether on the facts and in the circumstances of the case, the Orissa Sales-tax Tribunal is correct to hold that the charges agreed to be paid to the assessee are towards the transfer of right to use such dredger for a particular period and for specific purpose for consideration ?
(iii) Whether on the facts and in the circumstances of the case, the Orissa Sales-tax Tribunal by majority view is justified to hold the mobilisation and de-mobilisation, idle time charges are nothing but hire charges paid by the Board for transfer of right to use such dredging vessels during the period of contract ?
(iv) Whether on the facts and in the circumstances of the case, initiation of proceedings under Section 12 (8) of the Orissa Sales-tax Act, 1947 for the year 1984-85 and 1985-86 is justified as held by the Tribunal ?
(v) Whether on the facts and in the circumstances of the case, levy of penalty under Section 12 (8) of the Act for the years 1984-85 and 1985-86 is justified as held by the Tribunal as per their majority view ?
(vi) Whether on the facts and in the circumstances of the case the Orissa Sales-tax Tribunal is correct to hold that dredging vessels do come under the category of machines exigible to tax @12% ?
Port Trust has filed the writ application challenging the order of the Tribunal inter alia on the ground that in terms of agreement between itself and the assessee, the amount of tax, if any, payable was to be reimbursed, and therefore, it had vital interest in the matter. During hearing of the reference applications and the writ application it was brought to our notice that applications were filed before the Assistant Commissioner of Sales-tax under Section 21 of the Act for the purpose of cross-examining certain witnesses whose affidavits were already filed. Assessee further prayed for summoning certain officers of the Port Trust conclusively to establish that the transaction is outcome of a contract of service. According to the Asst. Commissioner no useful purpose would be served by accepting the prayer as the assessments had been completed and it was for the assessee to explain the nature of transaction. Similar applications were also fifed before the Tribunal, The prayer was not accept3d by the Judicial Member and the Chairman with the following observations :
'To come to a conclusion a petition under Section 21 of the O.S.T. Act is filed before us by the assessee who wants to cross-examine the two officials who filed affidavits before the learned ACST stating that contracts were for service but not for sale. For the said purpose assessee also wants to examine one senior Hydrographic Officer to know what type of work it is perhaps to show that it is a contract of service. But I retrain myself to allow such a petition because all the terms of the agreements the Corporation is of which are produced on record are ambiguous. The consents of such agreement are not disputed by the parties. So the opinion of those persons to whom the assessee has sought to examine are not admissible when the written contracts are put before the Tribunal along with other documents. When evidences are available the opinion of certain persons proposed to give an interpretation to such documents, cannot be admissible in evidence. For the said reasons, the petition under Section 21 of the OST Act is rejected.'
The Accounts Member held as follows:
'At length the learned counsel for the appellant canvassed about the necessity of examination of Sr. Hydrographic Officer of the Paradeep Port. Application under Section 21 was filed before the Tribunal. It was canvassed before us that the parties to the agreement may be called to reveal their intentions to the agreement. According to the appellant's counsel this will leave no room for speculation on the subject. I could not allow the plea. When the agreement is explicit and in writing and I have no doubt with regard to the nature of contract agreed upon the parties, they need not be called upon to explain their intentions. The applications therefore stand rejected. It is necessary to add here that the learned Asst. Commissioner before whom application under Section 21 was also filed along with two affidavits, one from the Project Manager, D.C.I. and the other from the Assistant Finance Manager, D.C.I, at Paradeep, when in doubt, could have allowed the plea and summoned the witnessess for examination. But he did not do this since no further materials could have bean obtained by personally hearing officers when documents were so explicit.'
Learned counsel for the Revenue submits that in view of the provisions contained in Sections 92 and 93 of the Indian Evidence Act, 1872, the conclusions of the Members though not specifically stated, the prayer to summon some more witnesses was unacceptable, it was submitted that possibility of collusion between assessee and Port Trust cannot be ruled out.
3. The conclusions of the Judicial Member and the Chairman are very confusing. Evidence Act is applicable to Courts. It has no statutory application to Tribunals discharging quasi-judicial functions though for better adjudication they are to be guided by principles of the Evidence Act. Provisions of the Evidence Act are not strictly applicable to the proceedings under the taxing statutes, but unless contrary intention appears, the procedures and principles can be adopted. If the terms are ambiguous, it is permissible for a party to lead evidence to clarify the matter. Here assessee wanted to prove through evidence of certain officials of Port Trust as to what was real essence of the agreement and what was really agreed upon to be done. Parties to the contract are best persons to say what was the intention. Revenue's stand is that assessee and Port Trust may collude to present a different intention, even though intention is explicit from the agree-ment. It is open to Revenue to establish collusion, either by cross-examining the witness or by independent evidence but to pre-judge that they would collude is without any material basis.
4. Section 92 provides that no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from in terms. Here the parties to the agreement do not contradict, vary, add to or subtract from their terms. Revenue is drawing an inference. The parlies to an agreement can be permitted to lead evidence to show what was the essence of the agreement and what was their intention. As indicated above it is open to the Revenue to establish collusion between parties to present a different intention, but to prohibit at the threshold a party from leading evidence to show as to what was intended is indefensible.
5. Similarly essence of Section 93 is that the intention of the parties should be construed not by vague evidence of their intentions, independently of the expressions which they have thought fit to use, but by use of the expressions themselves in the case at hand, principles of Section 93 of the Evidence Act have no application. We find that different clauses of the agreement have been differently interpreted by the Members. Since assessee has not got chance of explaining its position on account of refusal by the authorities to summon certain officials of Port Trust for which it had filed applications, principles of natural justice have been violated and assessee has not got proper opportunity to explain its stand. We do not express any opinion on merits at this stage. Tribunal shall take steps to summon the persons whom assessee wants to present as witnesses, take their evidence into consideration and re-adjudicate the matter. If necessary. Tribunal may remit the matter back to assessing officer so that assessee will be in a position to present the evidence of persons by summoning them for the purpose of tendering evidence. Learned counsel for assessee submits that several other persons shall be necessary for leading evidence. If assessee makes an application in this regard before the appropriate authority the same shall be considered in accordance with law. If evidence of persons whom assessee wants to further examine is relevant for the purpose of assessment, the prayer shall be accepted. Instead of answering the references, we remit the matter back to Tribunal for re-adjudication. The liability of Port Trust is dependent upon final adjudication by the Tribunal.
6. It is relevant to mention here that Sub-rule (2) of Rule 50 of the Orissa Sales-Tax Rules, 1947 (in short, the 'Rules') provides that the appellate authority may, before disposing of any appeal, make such further enquiry as it thinks fit or cause further enquiry to be made by the Assistant Sales-tax Officer or the Sales-tax Officer, as the case may be. Rule 51 provides notice to person likely to be adversely affected. It is prescribed that before an order is passed on appeal, if such order is likely to affect any person other than the appellant adversely such other person shall be given a reasonable opportunity of being heard Undisputedly Port Trust has to ultimately bear the tax burden Even if Assistant Commissioner or Tribunal was of the view that the prayer to summon certain officials was not acceptable, they could have heard Port Trust, the other party to the contract which is required to reimburse the tax, if any, payable by assessse in any view of the matter, assessee has not got fair opportunity to place its case.
The reference applications and the writ application are, accordingly, disposed of.
D.M. Patnaik, J.
I agree.