Page No.# 1/11 GAHC010096052025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2533/2025 MS GENUS POWER INFRASTRUCTURE A COMPANY REGISTERED OFFICE AT G 123, SECTOR 63 NOIDA UTTAR PRADESH 201 307 HAVING ITS CORPORATE OFFICE AT SPL 03, RIICO INDUSTRIAL AREA, SITAPURA, TONK ROAD, P.O. AND P.S. TONK ROAD, DIST. JAIPUR, RAJASTHAN, AUTHORIZED SIGNATORY SHAILENDRA JAIN AGED ABOUT 40 YEARS, RESIDENT OF 7, SITA RAM COLONY, TONK ROAD, SANGANER, JAIPUR, 302011 (RAJASTHAN). VERSUS THE STATE OF ASSAM AND 3 ORS. THROUGH PRINCIPAL SECRETARY, DEPARTMENT OF LABOUR, GOVERNMENT OF ASSAM, GUWAHATI-81006 2:LABOUR COMMISSIONER SHRAM BHAWAN B K KAKATI ROAD ULUBARI GUWAHATI-781007 3:ASSISTANT LABOUR COMMISSIONER CUM CESS ASSESSMENT SHRAM BHAWAN BK KAKATI ROAD ULUBARI GUWAHATI-781007 4:ASSAM POWER DISTRIBUTION COMPANY LIMITED BIJULI BHAWAN PALTAN BAZAR GUWAHATI-78100 Advocate for the Petitioner : MS T RAMCHIARY, MR. P J DAS Page No.# 2/11 Advocate for the Respondent : GA, ASSAM, SC, APDCL BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA JUDGEMENT & ORDER Date : 21-04-2026 Heard Mr. P Goyal, learned counsel assisted by Ms. T Ramchiary, learned counsel for the petitioner. Also heard Mr. B Goswami, learned Additional Advocate General, Assam for the respondents no. 1, 2 & 3 and Mr. D Gogoi, learned Standing Counsel, Assam Power Distribution Company Ltd. ( APDCL). 2. The petitioner before this Court is a Company registered on the Company Act, 1956 and is a public limited company. The Company is engaged in the business of manufacture and distribution of electronic energy meters, power distribution management projects and hybrid microcircuits in India and abroad. The Company undertakes the works contract pertaining to electrical goods and transmission lines and such works are regularly undertaken for government entities. 3. In response to an NIT dated 13.02.2019 issued by the APDCL for supply and installation of services, the petitioner applied for and was allotted the said work order. After completion of the work and submission of the bills, an amount Page No.# 3/11 of Rs 18,74,933/- (Rupees eighteen lakhs seventy-four thousand nine only) was deducted as labour component by the Labour Department from the bills which were raised and from the amounts to be released thereon by the APDCL authorities. It is this deduction of the labour component that is being challenged in the present proceedings. Learned counsel for the petitioner, therefore, submits that this deduction of the amount of Rs. 18,74,933/- (Rupees eighteen lakhs seventy-four thousand nine only) was carried out under purportedly under the provisions of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (the BOCW Act, 1996). Learned counsel for the petitioner submits that there was no construction work undertaken by the petitioner in pursuance to the NIT dated 13.02.2019 issued by the APDCL. However, it was a contract for supply and erection/installation of the electrical meters and components. 4. In this context, learned counsel for the petitioner has referred to a judgment of the Apex Court rendered in Uttar Pradesh Power Transmission Corporation Limited and Anr. vs. CG Power and Industrial Solutions Limited and Anr. reported in (2021) 6 SCC 53. Referring to the said judgment, learned counsel for the petitioner submits that the Apex Court in the said judgment has held that unless there are construction works involved, no labour component can be deducted under the provisions of the BOCW Act, 1996. It is further Page No.# 4/11 submitted that in cases involving mere supply and installation, without any element of construction work, such activities fall outside the purview of the said Act. Learned counsel for the petitioner therefore submits that this amount of Rs. 18,74,933/- (Rupees eighteen lakhs seventy-four thousand nine only) which was deducted on account of labour component was contrary to the provisions of the BOCW Act and therefore, should be refunded back to the petitioner. 5. Mr. B. Goswami, learned Additional Advocate General, Assam appearing for the State respondents submits that the labour component was deducted by the APDCL Authorities, who was the employer and who floated the tender and the amount has been deposited with the Labour Department. He further submits that in the affidavit filed on behalf of the Labour Department 2 (two) communications dated 10.04.2025 and 05-05-2025 were issued by the Additional Labour Commissioner-cum-State Cess Assessing Officer, Assam Guwahati, calling upon the petitioner to submit all relevant documents in connection with this said issue. However, the petitioner did not response to the said communications issued. He therefore submits that the petitioner be directed to furnish all relevant documents pertaining to the works undertaken and thereupon, upon proper examination if it is found that the amount deducted was excluded under the purview of the BOCW Act, 1996 then necessary follow up action shall be taken. Page No.# 5/11 6. Mr. D Gogoi, learned Standing Counsel, APDCL submits that as per the contract work no constructions works were undertaken as it was a case of supply and installation/erection of the electrical fitting. Therefore, he fairly submits that in terms of the Judgment rendered by the Apex Court, the amount ought not to have been deducted. However, it is submitted that the said amount is deducted and deposited before the Labour Department and it is the Labour Department who is now required to take a call to return the amount subject to such orders being passed by the Court. 7. Learned counsel for the parties have been heard and the pleadings available on records have been perused. 8. The NIT was issued on 13.02.2019 and the scope of the work is defined under Caluse-3.1 of the NIT is extracted as under: 3.1 This Specification covers the following scope of works: The scope of work under the subject package includes site survey, planning, design, engineering, assembly manufacturing, testing, supply loading, transportation, unloading, insurance, delivery at site, handling, storage, installation testing, commissioning and documentation of all items/material required to complete the DTR METERING WORKS IN ALL ABOVE THREE PACKAGES. The above scope of work is indicative and the detailed scope of work is given in the Bidding Documents. Page No.# 6/11 9. The letter of award dated 24.10.2019 also defines the scope of work under Caluse-2.1.1 and 2.1.2 which reads as under: 2.0 Award of Contract and Its Scope: …. 2.1.1 3-Ph 4 Wire I.T Metering of existing Distribution Transformers with necessary accessories. (5730 nos.). The Circle wise, District wise break up of DTR metering works to be executed is enclosed as Annexure-I. 2.1.2 The execution of Supply, constructions & Commissioning of Distribution Transformer (DTR) metering in LAR under the package is to be undertaken under DDUGJY scheme, hence utmost care should be taken during execution so that works of this package does to overlap with any other metering works of other schemes. 10. The Apex Court in Uttar Pradesh Power Transmission Corporation Ltd. And Anr. (supra) has dealt with the issue arisen from the High Court of Allahabad relating to deduction of Labour Component under the BOCW Act. The relevant paragraphs of judgment is quoted herein below: “52. Under Section 2(g) of the BOCW Act the term ‘Contractor’ means a person who undertakes to produce a given result for any establishment, other than a mere supply of goods or articles of manufacture, by the employment of building workers or who supplies building workers for any work of the establishment and includes a sub- contractor. The Respondent No.1 is apparently not a contractor, within the meaning of Page No.# 7/11 Section 2(1)(g) of the BOCW Act in respect of the first, second and fourth contracts. Nor is the Respondent No.1 employer within the meaning of Section 2(1)(i) of the BOCW Act. Section 2(1)(i) of the BOCW Act defines ‘employer’ to include the contractor in relation to a building and other construction work carried on by or through a contractor or by employment of building workers supplied by a contractor. The Respondent No.1 neither falls within the definition of ‘contractor in Section 2(1)(g) nor 2(1)(i)(iii) of the BOCW Act. Apparently, the Respondent No.1 is not liable to cess in respect of the First, Second and Fourth contracts. 53. Cess under the Cess Act read with BOCW Act is leviable in respect of building and other construction works. The condition precedent for imposition of cess under theCess Act is the construction, repair, demolition or maintenance of and/ or in relation to a building or any other work of construction, transmission towers, in relation inter alia to generation, transmission and distribution of power, electric lines, pipelines etc. Mere installation and/ or erection of pipelines, equipments for generation or transmission or distribution of power, electric wires, transmission towers etc. which do not involve construction work are not amenable to Cess under the Cess Act. Accordingly no intimation or information was given or any return filed with the Assessing Officer under the Cess Act or the Inspector under the BOCW Act in respect of the First and Second Contracts, either by UPPTCL or by the Respondent No.1. 54. A contractor who enters into a pure Supply Contract is statutorily exempted from levy under the BOCW Act. The Contract in question is a Supply Contract as would be evident from Clause 8.7 of the Special Conditions of Contract which states: Page No.# 8/11 “The contract shall be a ‘Divisible Contract’ with single point responsibility, hence no works Contract tax shall be payable and the Purchaser shall not bear any liability on this account.” 11. After considering several judgments of the Apex Court and earlier precedents, the Apex Court held that the Cess under the Cess Act read with the BOCW Act is leviable in respect of building and other construction works. The condition precedent for imposition of Cess under CESS Act is construction, repair, demolition, or maintenance of and/or in relation to a building or any other work of construction, transmission towers, in relation inter alia to generation, transmission, and distribution of power, electric lines, pipelines etc. The Apex Court held that mere installation and/or erection of pipelines, equipments for generation or transmission or distribution of power or electrical wires transmission towers etc which do not involve construction works are not amenable to CESS under the Cess Act read with the BOCW Act. It was held that pure supply contracts are statutorily exempted from the levy under the Cess Act read with the BOCW Act. 12. Upon careful perusal of the judgment of the Apex Court, it is evident that the judgment of the Apex Court had authoritatively held that the applicability of the provisions of the BOCW Act for levy of Cess is only with regard to such contracts which contains components of construction, erection, etc. Mere supply Page No.# 9/11 of goods and installation without any involvement of construction or construction, repair, demolition, or maintenance will not invite levy of Cess under the BOCW Act. 13. The learned Standing Counsel for the APDCL on instructions has fairly submitted that it is a case for supply of goods, and also installation but without involvement of construction, repair, maintenance, demolition, etc. 14. Under such circumstances and in view of the provisions of the BOCW Act, as also the judgment rendered by the Apex Court in Uttar Pradesh Power Transmission Corporation Ltd. And Anr. (supra), it is clear that the deduction of Cess for the labour component under the BOCW Act by the APDCL from the final bills of the petitioner is contrary to the mandate of the BOCW Act, 1996 as have been interpreted by the judgment of the Apex Court in Uttar Pradesh Power Transmission Corporation Ltd. And Anr. (supra). 15. Under such circumstances, this Court is of the considered view that since the judgment of the Apex Court has been rendered in Uttar Pradesh Power Transmission Corporation Ltd. And Anr. (supra) interpreting the provisions of the BOCW Act and its applicability regarding the recovery of deduction of labour component through Cess under the BOCW Act, the same is binding on this Court and therefore, this Court is constrained to hold that the deduction of Page No.# 10/11 labour component to the amount of Rs. 18,74,933/- (Rupees eighteen lakhs seventy-four thousand nine only), is contrary to the provisions of the BOCW Act as also to be law laid down by the Apex Court in Uttar Pradesh Power Transmission Corporation Ltd. And Anr. (supra). 16. Accordingly, it is directed that the Labour Department will examine the documents which will be furnished by the writ petitioner and thereupon, if no construction, demolition, repair or maintenance work is found to be involved in the contract work which was undertaken by the writ petitioner, the amount of Cess deducted to the tune of Rs. 18,74,933/- (Rupees eighteen lakhs seventy- four thousand nine only) shall be refunded forthwith without any further delay. The Petitioner will appear before the Additional Labour Commissioner-cum-State Cess Assessing Officer, Assam Guwahati, whereupon Additional Labour Commissioner-cum-State Cess Assessing Officer, Assam Guwahati will examine the matter and upon verification of the particulars in respect of the abovementioned amounts deducted, if it is found that the amounts have been deducted in respect of labour component without there being any involvement of construction, repair, demolition, in respect of the works undertaken by the writ petitioner, the amount should be refunded forthwith. 17. Let this exercise be completed within a period of 60 (sixty) days from the Page No.# 11/11 date of receipt of a certified copy of this order. Needless to say, the petitioner will appear before the concerned Authority and furnish all necessary documents pursuant to which the Authorities will carry out the directions as contained in this order. 18. The writ petition stands disposed of in terms of the above. 19. The communication furnished by the learned Standing Counsel, APDCL is kept as a part of the record. JUDGE Comparing Assistant