G.S.T.R. No.8 of 1993 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
G.S.T.R. No.8 of 1993
Date of Decision:January 29, 2009.
M/s Calcutta Engineering Corporation, Jalandhar.
...Petitioner
Versus
The Punjab State
...Respondent
CROAM: HON'BLE MR. JUSTICE M.M.KUMAR
HON'BLE MR. JUSTICE H.S.BHALLA
Present: None.
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
the Digest?
M.M.KUMAR, J.
The Sales Tax Tribunal, Punjab while accepting the
application of a dealer under Section 22(1) of the Punjab General Sales
Tax Act, 1948 has referred the following questions of law for the opinion
of this Court: –
“Whether in the facts and circumstances of the case, the
graphic art films are covered by item No.6 of Schedule `A’ of
the Punjab General Sales Tax Act, 1948.”
Brief facts of the case are as under: –
The dealer is engaged in the business of resale of graphic art
films etc. He was assessed for the year 1982-83 and the item graphic
G.S.T.R. No.8 of 1993 2
film was treated as a photographic film as defined in entry 6 of the
Schedule `A’ of the Punjab General Sales Tax Act, 1948 (for short, `the
Act’). Accordingly, tax at the rate of 10% was levied and additional
demand of Rs.20,359/- was created by the Assessing Authority vide its
order dated 11.08.1986. The appeal filed before the Deputy Excise and
Tax Commissioner (A) did not succeed which resulted in filing of
another appeal by the dealer before the Tribunal. The dealer insisted
that photographic art film is not an item covered under Schedule `A’ of
the Act and in fact is an item of general category exigible to tax at
general rate instead of special higher rate applicable to Schedule `A’
items. After hearing the arguments, the Tribunal concluded that the
graphic art films were liable to tax @ 10% as per entry 6 of Schedule
`A’ of the Act. The Tribunal rejected the argument that graphic art film
was used as a printing material for printing newspaper, books etc. The
film is much slower and its thickness is more than the photographic
films because these films are not used by the photographers and are
different from the photographic films. The further argument was also
rejected that the photo process is different from photographic process.
In order to appreciate the controversy, it would be necessary
to notice entry 6 of Schedule `A’ of the Act, which are as under: –
“Entry No.6 – Photographic and other cameras and enlargers,
lenses, films and plates, papers and cloth and other parts and
accessories required for use therewith.”
A perusal of entry 6 of Schedule `A’ makes it patent that it
uses expression “photographic and other cameras and enlargers”.
There is indication available that photographic film and graphic film are
G.S.T.R. No.8 of 1993 3
basically different items not merely from the point of view of its usage
but also from other point of view. Before the Tribunal, the assessee
has placed reliance on the focal encyclopedia of Photography Vol.II
published by the Focal Press, London and New York 1974 Edition.
Quoting from page 1181 of the book, the argument have been raised
as under: –
“The printing block used in photo mechanical reproduction
process is made from the negative which is exposed in
process cameras. The process camera is a permanent price
of equipment which is belted down to the floor of the room or
carried on runners which are belted to the floor. The camera
consists essentially of two vertical frames mounted on
horizental rails. One frame carries the lens panel and the
other plate holder and the process screen. This photo
process camera is a sort of copier used mainly for the purpose
of printing when the camera is not covered under the
photographic then its film too cannot be covered in entry No.6
of Schedule `A’. The West Bengal Taxation Tribunal has held
this view in the case of (82-STC-292) Commissioner,
Commercial Taxes, West Bengal vs. Monotype Corporation
Ltd.”
It is thus evident that the graphic art films are those films on
which positives and negatives are produced. Therefore, it is not
possible to conclude by any stretch of imagination that graphic art films
would be covered by the expression photographic and other cameras
and enlargers, lenses, films and plates. So according to entry No. 6
one item is covered by the expression ‘photographic and other cameras
and enlargers’ then after use of another item lenses/films and
plates/papers and clothes have been used. The graphic art films might
G.S.T.R. No.8 of 1993 4
fall within the mischief of entry No. 6. Had it been graphic and films
and plates or papers and cloth? Therefore, it is not possible to
conclude that the graphic art films would be covered by entry No. 6.
Accordingly, the answer to the question posed has to be against the
Revenue and in favour of the assessee.
( M.M.KUMAR )
JUDGE
January 29, 2009 ( H.S.BHALLA )
vinod JUDGE