JUDGMENT
K. Shivashankar Bhat, J.
1. These two S.T.R.Ps. are concerned with two years of assessment 1981-82 and 1982-83, both being Deepavali years. The question is whether the balloons dealt by the petitioner are childrens’ toys falling within entry 47 of the Fifth Schedule to the Karnataka Sales Tax Act, 1957 (for short “the Act”). This entry was introduced for the first time applicable to the years in question and for the first time the benefit is claimed by the petitioner for these years and admittedly for the previous years prior to 1981-82 entry 47 was not available.
2. The Revenue treated them as general goods and levied tax under section 5(1) of the Act.
3. Mr. Gandhi, learned counsel for the petitioner, initially pointed out that for the earlier years this Court held that balloons are unenumerated goods, as per the decision of this Court in S.T.A. No. 4 of 1985. However, the amendment of the Act by the insertion of entry 47 stated above, altered the situation altogether. The authorities as well as the Appellate Tribunal held that balloons are not always used as “toys”. They are also used for other purposes and therefore, they cannot be treated under entry 47.
4. The learned Government Pleader sought to justify this conclusion reached by the Appellate Tribunal as propounded by the Revenue.
5. A particular goods may fall under several entries. In such a case the court has to examine which of the competing entry should be applied for the purpose of levying the tax. Here, we are concerned with section 5(1) of the Act which does not enumerate any goods as such; it is considered as a general charging section. The various goods treated specifically are found in the several Schedules to the Act. The goods covered by the Fifth Schedule are exempted from levy of tax. Entry 47 states “childrens’ toys costing not more than Rs. 20 per item”. If a particular goods is considered as a toy predominantly, certainly the sale or purchase transaction in respect of the said goods is entitled to take advantage of the Fifth Schedule. Primarily balloons are used as toys by the children, sometimes they are also used for other purposes like decoration. Decorative purpose of balloons is only incidental because of the colours given to the balloons by the manufacturer. If all the balloons are manufactured under a particular colour, the decorative utility of the balloons will be lost. In the circumstances, we are of the view that the dominant purpose of the balloons shall have to be taken into consideration and if so, the balloons are entitled to come under the purview of entry 47 of the Fifth Schedule. The clarification issued by the Commissioner dated January 27, 1986, is not happily worded.
6. For the reasons stated above, we allow these revision petitions.
7. Learned Government Pleader is directed to file his memo of appearance within six weeks.
8. The assessing authorities are directed to re-do the assessment in the light of this decision.
9. Petitions allowed.