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2019 (3) TMI 709 - HC - VAT and Sales TaxClassification of goods - rate of tax - whether airgun and airpistol are to be taxed under entry 124 Part A of Schedule II as toy excluding electronic toys or has to be taxed arms and ammunitions vide entry 2 of Schedule IV? - Held that - The airguns or airpistols are not simple toys or a pure sports equipment. These guns though are not firearm but are capable of causing bodily injuries and those in certain circumstances can be fatal too. These guns/pistols are also frequently used for hunting purposes. Looking to the mechanism used in these equipments, Experts have advised cautious use of these articles. In popular sense too, the airguns are not understood as sports equipment but as a gun frequently used for hunting birds and other small animals. True it is, there is no need to have license to possess an airgun but merely, on that count, it cannot be brought out from the term arms . There may be several other articles too which are deadly weapon and falls within the definition of arms but there is no need to have license to possess those. It would also be appropriate to state that several Experts have also opined to make it mandatory to have a license for keeping airgun/ pistol. The Kerala High Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Versus K. Mohammed 1989 (1) TMI 335 - KERALA HIGH COURT did not examine complete mechanism of the airgun and just on basis of its capable use in popular sense held that though airgun can cause injury but would not be an item covered under the entry arms and ammunition . Being not a toy and being an equipment that can be used to cause a lethal injury, which is also in use for causing bodily injuries and also being required to be used with all necessary caution and also being advised to be used under supervision of Expert and also being having absolute resembles that of firearm and also having a mechanism of spreading the projectiles with force that may cause hurt, the airgun/ airpistol is an arm and, therefore, it is required to be considered as an item under entry 2 Schedule IV appended with the Act, 2008. Revision dismissed.
Issues Involved:
1. Whether the view taken by the Court in M/s Agarwal Brothers, Faizabad lays down the correct law. 2. Whether 'airgun' and 'air pistol' should be treated as items covered by the taxing entry 'arms and ammunition' in Schedule IV or as 'toys including electronic toys' in Schedule II. Detailed Analysis: Issue 1: Correctness of the Law Laid Down in M/s Agarwal Brothers, Faizabad The Court in M/s Agarwal Brothers, Faizabad held that an airgun is capable of inflicting bodily injuries and thus falls under the category of "arms and ammunitions" as per a Notification dated 23.03.1971. This judgment was supported by the definition of "arms" under Section 2(c) of the Arms Act, 1959, which includes articles designed as weapons for offense or defense. The Kerala High Court and Madhya Pradesh High Court disagreed with this view, holding that airguns and pellets do not fall within the ambit of "arms and ammunition." Issue 2: Classification of 'Airgun' and 'Air Pistol' The primary contention was whether airguns and air pistols should be taxed under entry 124 "Part A" of Schedule II as "toys excluding electronic toys" or under entry 2 of Schedule IV as "arms and ammunitions." The revision petitioner argued that airguns and air pistols are recreational toys and should be taxed accordingly. In contrast, the Additional Advocate General argued that these items are lethal weapons and should be classified under "arms and ammunition." Legal Interpretation and Definitions The Court examined various definitions and literature to determine the nature of airguns and air pistols. The Arms Act, 1959 defines "arms" as articles designed as weapons for offense or defense, including firearms and other deadly weapons. The Court also reviewed literature indicating that airguns can cause serious injuries, sometimes fatal, and should not be considered toys. Examination of Previous Judgments and Literature The Court reviewed the judgments of different High Courts and relevant literature. The Kerala High Court and Madhya Pradesh High Court had previously held that airguns do not fall under "arms and ammunition." However, the Delhi High Court in People for Animals v. Union of India and Ravinder v. State (NCT of Delhi) held that airguns are not mere toys and are subject to the provisions of the Arms Act. Conclusion The Court concluded that airguns and air pistols are not toys but items capable of causing bodily injuries and potentially fatal harm. They resemble firearms and operate with high-pressure air, making them suitable for inclusion under "arms and ammunition." The Court affirmed that the law laid down in M/s Agarwal Brothers, Faizabad is correct and that airguns and air pistols should be classified under entry 2 of Schedule IV as "arms and ammunition." Final Judgment The Court answered the reference questions by stating that the law in M/s Agarwal Brothers, Faizabad is good law and that airguns and air pistols do not fall under the entry "toy excluding electronic toys." They are covered by the taxing entry "arms and ammunition" in Schedule IV. Consequently, the revision petition was dismissed.
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