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TMI Blog2015 (4) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... d not have been re-used after certain processes. One cannot hold that chemical has been sold to the consumers. Similarly the paper cuttings which remained after proper sizing as such no new item came to existence, a paper would remain a paper whether after cutting of the corners or otherwise and thus no new item can be said to be produced merely because photographs are prepared in different shapes and sizes according to the direction of the consumer. - The contract is to be seen as one of work and labour and in my view, whatever chemical has been used, cannot be said to be sale directly or indirectly to the customers by the assessee. Paper cuttings even after the paper being cut to size, remain a paper may be out of a full sized paper only some cuttings remain after the photograph being cut according to size. Therefore, a paper would remain a paper even after making into different sizes and it is also an admitted fact that on both the items, the assessee has paid due tax, therefore, even if the paper cuttings have been sold to a third party when due tax has been paid, in my view, sales tax is not liable to be paid again. - Decided against Revenue. - SB Salex Tax Revision Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax @ 8% on chemical and @ 10% on wastage/recovery (cuttings) of paper. 4. Dissatisfied with the said imposition, the assessee carried the matter in appeal before the Dy Commissioner (Appeals) who accepted the contention of the assessee on both the issues. Dissatisfied with the deletion of the said amount, the matter was carried before the Rajasthan Tax Board by the Revenue, who also, after analyzing the material on record, dismissed the appeal of the Revenue. 5. This instant revision petition was admitted on the following question of law:- (i) That whether in the facts and circumstances of the case, the judgment of learned Rajasthan Tax Board is legal? (ii) That whether in the facts and circumstances of the case, the scraps/waste materials of the negative and photopapers can be said to be negative or photopapers. (iii) That whether in the facts and circumstances of the case, the chemical which is being used for developing photos by processing the chemical is not transferred through which the resultant photos came into existence and it is not a sale? 6. Ld. Counsel for the Revenue contended that the Assessing Officer had rightly levied tax as the chemical was used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered in the case of State of Tamil Nadu Vs. Vijay Kumar Mills Limited reported in (1996) Vol.100 STC 213; Bavens Vs. Union of India and Others. reported in (1995) 97 STC 161; Gannon Dunkerley Co. and Others Vs. State of Rajasthan and Others reported in (1993) 88 STC 204; Punjab Business Supply Co. Pvt. Ltd. Vs. State of Maharashtra reported in (1977) 39 STC 386. 8. I have considered the arguments advanced by the ld. Counsel for the parties and have perused the material available on record as also the judgments rendered by the various Courts. 9. Admittedly, tax has been paid by the assessee either for chemical purchased from Delhi or the photography papers purchased from the local market, therefore, in the light of the said facts the issue is required to be considered. 10. In my view, the Tax Board has rightly come to the conclusion that there is no justification in levy of sales tax on the two items namely; (i) chemical (ii) photographic paper left over/cuttings of photographic paper. In so far as the chemical is concerned, it has rightly been held that whatever chemical was purchased, was duly tax paid and the chemicals having been used in the printing/developing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks contract of consumables items such as water, electricity, fuel etc. used in the execution of the works contract, the property in which is not transferred in the course of the execution of a works contract and accordingly held that it is not liable to tax. 15. The Hon'ble Bombay High Court in the case of Punjab Business Supply Co. Pvt. Ltd. (supra) had an occasion to consider issue relating to cloth which was sold in pieces and not in the form of takas or bales manufactured by the mills and held that both rags and chindhis are pieces of cloth though irregular shapes and sizes but it cannot be said that they are not manufactured cloth. Rags and chindhis also do not cease to be manufactured cloth, merely because the purchaser put them to use as raw material for making paper or paper products. 16. In my view, after analyzing the aforesaid judgments, photography can be said to be pure work of art, it is the art of fixing an optical image by photochemical means. In common parlance photography means, drawing a picture with light . The occupation of a photographer, except in so far as he sells the goods purchased by him, in my opinion, is essentially one of skill and labour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the customer may use the same in the drawing rooms, offices or in the use or pasting the same in the various forms for applying in driving license, passport, admission etc. 19. In my view, the paper cuttings even after the paper being cut to size, remain a paper may be out of a full sized paper only some cuttings remain after the photograph being cut according to size. Therefore, a paper would remain a paper even after making into different sizes and it is also an admitted fact that on both the items, the assessee has paid due tax, therefore, even if the paper cuttings have been sold to a third party when due tax has been paid, in my view, sales tax is not liable to be paid again. 20. The judgment relied upon by the counsel for the revenue in the case of State of Tamil Nadu Vs. Burmah Sheel Oil Storage and Distributing Co. of India Ltd. Anr. (supra) is entirely on a different concept and distinguishable where the Hon'ble Apex court was considering sale of goods of casual trade and thus was a scrap sale connected with business of company. 21. Thus, in view of what has been observed herein above, the question of law is answered against the revenue and in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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