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TMI Blog1996 (6) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,930 (rupees twenty-three thousand nine hundred and thirty only) should be cleared within 5 (five) days from today, failing which the consignment may be auctioned by this office and the vehicle may be detained at this check-gate in the future. Sd/- Superintendent of Taxes, Taxation Check-gate, Byrnihat, Meghalaya." The petitioner also challenged the letters of the Inspector of Taxes, Byrnihat, addressed to the carriers, Shillong, dated April 10, 1995 and April 26, 1995 whereby he communicated the decision of the Commissioner of Taxes to the carrier regarding consignment sent through lorry Nos. ML-05-2045 and ML-05-2225 with a direction not to make delivery to the party concerned till clearance by the check-gate. It also impugned the letter of the Superintendent of Taxes, Byrnihat, dated April 27, 1995 addressed to the Manager, M/s. Meghalaya Road Carrier (Pvt.) Ltd. By that letter the carrier was advised not to give delivery of the consignment of 5-C/B of photo chemical of M/s. Colour Calcutta, Kachari Road, Shillong, till the following conditions are fulfilled: 1.. The photostat copies of the registration certificate under (a) the Meghalaya Finance (Sales Tax) Act and (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention when confronted with item No. 11 of the Meghalaya Finance (Sales Tax) Act, 1956. Under the Act taxable goods means "such goods as are specified in the Schedule attached to the Act" and item No. 11 of the Schedule covers photographic and other cameras and enlargers, lenses, films and plates and other parts. The argument of Mr. Deb Roy was further supplemented by Shri S.P. Sharma, learned counsel for the petitioner. According to Mr. Sharma, the petitioner runs a photo colour lab and undertakes the job of developing photographs belonging to customers, hence the copyright of the photographs always belongs to customers and it does not have any marketable value. Mr. Sharma also challenges the action of the respondents to recover composition money from the petitioner as disclosed by the endorsement of the Superintendent of Taxes, Taxation check-gate, dated November 29, 1994. Mr. Sharma submits that coercing Sri Vicky Mukhim the letter dated November 29, 1994 was extracted from Sri Mukhim and as such that letter of Shri Vicky Mukhim is not binding on Sri Vicky Mukhim or to the petitioner. Mr. Sharma further submits that the attempt to realise composition money from the petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of representation and raise all the issues of facts and law which could have been decided by the authority of first instance by considering the materials on record. Mr. Kynjing submits that the State of Meghalaya set up a check-post at Byrnihat under section 33A of the Meghalaya Finance (Sales Tax) Act, 1956, to prevent evasion of taxes payable under the Meghalaya Finance (Sales Tax) Act, 1956. Mr. Kynjing took me to the affidavit-in-opposition and referred and relied the factual statement of facts made by the department. According to respondents photo paper is taxable in Meghalaya under section 3 of the Act. The supply of paper by the firm for developing and printing photographs of customers fall under the definition of "business" as per clause (i) of sub-section (1B) of section 2 of the Meghalaya Finance (Sales Tax) Act. The execution of the works by the petitioner for the customers is purely a works contract and in this instant case the transfer of photo paper is a sale. According to the department photo paper is goods involved in execution of the works contract which is taxable in Meghalaya. According to the respondents the petitioner carries goods in Meghalaya and in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of any goods that takes place as per sub-clauses (a) to (f) of clause (29A), the latter part of clause (29A) says that "such transfer, delivery or supply of any goods" shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. Hence, a transfer of property in goods under sub-clause (b) of clause (29A) is deemed to be a sale of the goods involved in the execution of a works contract by the person making the transfer and purchase of those goods by the person to whom such transfer is made. In Builders' Association of India v. Union of India [1989] 73 STC 370 at page 400 (SC); (1989) 2 SCC 645, the Supreme Court considered the decision of State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd. [1958] 9 STC 353; AIR 1958 SC 560, the relevant portion of paragraph 36 is quoted below: "Even after the decision of this Court in the State of Madras v. Gannon Dunkerley Co. (Madras) Ltd. [1958] 9 STC 353; AIR 1958 SC 560; [1959] SCR 379, it was quite possible that where a contract entered into in connection with the construction of a building consisted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dventure or concern in the nature of trade, commerce or manufacture, whether or not such trade, commerce, manufacture, execution of works contract or adventure or concern is carried on with the motive to make gain or profit and whether or not any gain or profit accrues from such trade, commerce, manufacture, execution of works contract or adventure or concern; and (ii) any transaction in connection with or incidental or ancillary to such trade, commerce, manufacture, execution of works contract, adventure or concern........" The 46th Amendment of the Constitution read with the amended provision of the Meghalaya Sales Tax Act makes it possible for the State to levy sales tax on the price of goods and materials used in the works contract as if there was a sale of such goods and materials. The decisions referred to by the learned counsel for the petitioner are not applicable in the instant case and the point raised in this case is squarely covered by the Supreme Court in Builders' Association of India [1989] 73 STC 370; (1989) 2 SCC 645. The decision of this Court in Studio Sen Sen [1990] 79 STC 168; (1989) 2 GLJ 49, is no longer applicable in the present situation in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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