Ganjam Nagappa and Son Vs. State of Mysore - Court Judgment

Excerpt:

- code of civil procedure, 1908. section 100: [d.v. shylendra kumar, j] substantial question of law - regular second appeal suit for recovery of possession acceptance of report of court commissioner that there was no encroachment by the defendant into property of the plaintiff judgment and decree appealed against held, substantial question of law should be with reference to the legal position as emerges from the judgments and decrees of courts below for admitting an appeal under section100 c.p.c., the question of law which is vague, general in nature and not with reference to the particular case cannot be considered as substantial question of law. on facts, held, the question of law as framed at the time of admission does not necessarily indicate as to what aspect of legal position has been erroneously or wrongly decided by the lower appellate court and in what manner. further, the right, title and interest over the entire extent of land as pleaded by the plaintiff itself is doubtful and not a thing which is proved. the suit for recovery of possession therefore inevitably fails. .....thereof, in order to ascertain whether the sales were of finished products or of the materials composing that finished product and that the mere fact that the bills gave the prices or charges for the component parts would not be determinative of the question. 4. the orders that have been reproduced by the tribunal really mention finished products for being supplied. it is only the bills that give the particulars of the precious stones or gold and the labour charges. in the light of the ruling of the supreme court, it is clear that what has to be looked into is the contract and the intention of the parties as to whether a finished product is to be supplied or the component parts separately. the learned government advocate brought to our notice that in some of the items considered by the tribunal, precious stones had been supplied by the customers, that, therefore, it cannot be said that the dealer, while resetting the article and delivering it back to the customer, was selling precious stones as such but he would be selling gold which had been used for setting those precious stones and that, if so, there would be a sale of the component parts used. 5. in our judgment, the.....

Judgment:

ORDER

1. This is a revision petition filed by the dealer against the order of the Sales Tax Appellate Tribunal confirming the order of assessment made for the year 1967-68 (1st April, 1967, to 31st March, 1968.)

2. The dealer is a firm carrying on business in jewellery, and especially jewellery set with diamonds and other precious stones. The Commercial Tax Officer held that the transactions carried on by the dealer were sales of diamonds and other precious stones and gold and not sales of finished jewellery as such and, therefore, brought to tax the turnover as determined by him at 5 1/2 per cent in accordance with item No. 64 of the Second Schedule to the Sales Tax Act as it then prevailed. The dealer appealed to the Deputy Commissioner of Commercial Taxes contending that there was no sale of diamonds or other precious stones as such and that the transactions could not be brought to tax under item No. 64, and reliance was sought to be placed upon the decision of this court in Ganjam Nagappa & Sons v. State of Mysore ([1968] 21 S.T.C. 188.), which was for an earlier year. The Deputy Commissioner of Commercial Taxes held that in the decision relied upon there was no finding that the sales were of precious stones or gold and that, therefore, the reasoning adopted therein was not applicable to the instant case. In the course of his order he made reference to a few of the bills and orders that had been placed before him. He accordingly confirmed the assessment as had been made by the Commercial Tax Officer. On a further appeal to the Tribunal, the dealer put forth the same contention but the Tribunal agreed with the reasoning of the taxing authorities and dismissed the appeal.

3. Sri K. Srinivasan, the learned counsel for the petitioner, has taken us through the order of the Tribunal wherein several of the orders placed by the customers and the relevant bills have been reproduced. He urged that each one of the orders that had been considered by the Tribunal related to the supply of finished jewellery and that only in the bills the dealer specified the value of the various components, viz., diamonds, precious stones or gold and labour charges, and gave details of those amounts. He relied upon the decision of the Supreme Court in Arun Electrics v. Commissioner of Sales Tax ([1966] 17 S.T.C. 576 (S.C.).), and urged that what was material to be looked into was the contract and the terms thereof, in order to ascertain whether the sales were of finished products or of the materials composing that finished product and that the mere fact that the bills gave the prices or charges for the component parts would not be determinative of the question.

4. The orders that have been reproduced by the Tribunal really mention finished products for being supplied. It is only the bills that give the particulars of the precious stones or gold and the labour charges. In the light of the ruling of the Supreme Court, it is clear that what has to be looked into is the contract and the intention of the parties as to whether a finished product is to be supplied or the component parts separately. The learned Government Advocate brought to our notice that in some of the items considered by the Tribunal, precious stones had been supplied by the customers, that, therefore, it cannot be said that the dealer, while resetting the article and delivering it back to the customer, was selling precious stones as such but he would be selling gold which had been used for setting those precious stones and that, if so, there would be a sale of the component parts used.

5. In our judgment, the Tribunal has no correctly followed the principles to be applied as has been pointed out by the Supreme Court in Arun Electrics v. Commissioner of Sales Tax ([1966] 17 S.T.C. 576 (S.C.).). There is another decision of the Supreme Court reported in Government of Madras v. Simpson & Company Ltd. ([1968] 21 S.T.C. 21 (S.C.).), which also enunciates the principles to be borne in mind in determining whether a transaction is a works contract or a sale of finished article or of components forming it. The Tribunal has to determine the point in dispute having regard to the principles enunciated in the said rulings.

6. Accordingly, we set aside the order of the Tribunal and remand the matter to it for fresh adjudication in the light of the observations made above. It would be open to the Tribunal to remit the matter to the assessing if it considers necessary to do so.

7. There will be no order as to costs in this revision petition.

8. Case remanded.