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TMI Blog2010 (7) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... separate bills, one for the frame and other for lens while delivering the spectacles to its customers, cannot be held to be an act of evasion of tax by the respondent/ assessee. It is well known canon of construction in taxation field that avoidance is not evasion. It will also be relevant to state that in a spectacle the lens being detachable, the customer can always use the frame separately by getting a different lens fixed depending upon the need, may be due to any change in the power of the lens. Therefore, treating the frame as a separate article of spectacle cannot be faulted. We therefore, hold that the action of the respondent/assessee in having raised two separate bills, one for the frame and the other for the lens and thereby, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, inasmuch as the said spectacles are sold by the respondent to its customers as a product through separate bills for (i) frame and (ii) lens. Before the Tribunal, the respondent/assessee contended that the manufacture of spectacles based on a specific description issued by the Doctors and choosing the lens pertaining to the power prescribed, the same is handed over to the skilled labourers for processing and sizing the lens such as grinding the shape of the lens, etc., before fitting the same into the frame. It was therefore contended that such a process of manufacture according to the specific requirement is based on prescription issued by the Doctor, which would fall with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an opthalmologist. What is significantly absent in that process is, as rightly contended by the Special Government Pleader, the respondent/assessee is predominant in each and every part of the spectacles, viz., the frame, lens and other accessories and parts attached to it. Further, what is being carried out by the respondent/assessee falls within the expression manufacture , i.e., manufacture of spectacle based on the orders placed by the customers. Even such manufacturing activity is carried on by the respondent/assessee in their workshop. Therefore, in every respect, we find that the necessary ingredients of works contract are absent. However, we are not inclined to interfere with the order passed by the Tribunal. Even otherwise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , lenses which are either common in size or even in different sizes, have to undergo the process of manufacture, in order to get transformed into a lens with the power as specified in the prescription of the opthalmologist. Therefore, the lenses which get transformed into a different product based on the requirement of each of the customer, such a lens is a new product by itself and thereby at the time of sale of such lens fitted in a frame chosen by the customers of the respondent, definitely attracts levy of tax and that would be a levy at the point of first sale in this State. As far as the frame is concerned, the same does not undergo any other change at the hands of the respondent/assessee, except that the lens is fitted into the fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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