State of A.P. Vs. Balajee Audio and Video Co. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. bilal nazki, j.1. in this trc there is only one question which is raised before us and the question is, whether a pre-recorded cassette can be taxed as a new product or it could be exempted as second sale. there are no disputes on facts. the assessing authority assessed it as first sale as a new product. appeal filed by the assessee, was dismissed. second appeal filed by the department was, however, allowed. therefore, this t.r.c. by the department.2. whether a blank audio cassette is different than a recorded audio cassette or not, has drawn the attention of various courts, though under different acts on different occasions. the foremost judgment is the judgment of the bombay high court reported in commissioner of sales tax, maharashtra state, bombay v. rajshree electronics, 1998 stc 403. a division bench of bombay high court held that a recorded cassette was not distinct and different from a blank cassette, as there was no process of manufacturing involved. similarly in prabhat sound studios v. additional collector of central excise, : 1996(88)elt635(sc) , the supreme court held in para 7 as under:'the manufacturer of tapes may manufacture and sell blank tapes upon which the purchaser would be free to record such sound as he choose. the manufacturer may go one step forward and record sound itself and sell such tapes. it is to cover both eventualities that tariff item 59 is categorized as it is. but it is altogether different to say that by reason thereof the recording of sound on blank tapes, as done by the appellant on job-work basis, is a manufacturing process. as the tribunal in m. basheer ahammed's case has rightly pointed out, even such a prerecorded tape can have the sound erased from it and it can be used again for recording other sound.'3. had this judgment of supreme court been the last judgment, there would have been no difficulty for us to accept the contention of the assessee, that recorded audio cassette was not a different product than a blank cassette. but the question again cropped up before the supreme court in a judgment in the gramophone company of india ltd. v. the collector of customs, calcutta, : 1999(114)elt770(sc) . though it was a case under the customs act, but the question of law was same as to whether recording of a cassette gives rise to a new product or not. supreme court noted that the courts had consistently taken the view that the moment there is transformation into a new commodity commercially known and recognized as a distinct and separate commodity, it should be considered that manufacture has taken place. supreme court was of the view that recording of a blank cassette gives rise to a new product. this judgment is latest and is by a three-judge bench of the supreme court, whereas the earlier judgment is only by two judges.4. however, the learned counsel for the petitioner submits that a judgment after the judgment in the gramophone company of india ltd. v. the collector of customs, calcutta (supra) has also been pronounced by the supreme court, which is also by three judges, which was reported in garware plastics and polyesters ltd. v. collector, 2002 (146) elt a310. we have seen this judgment but this does not lay down any law. the judgment reads as under:'heard the learned counsel for the parties. learned counsel appearing the department fairly concedes that the matter is squarely covered against the department by decision rendered by this court in, prabhat sound studios v. additional collector of central excise, : 1996(88)elt635(sc) . hence this appeal is allowed, impugned order passed by the cegat is set-aside. there shall be no order as to costs.'this only shows that the revenue had conceded that the controversy before the court was covered by another judgment. the supreme court in this case, had no occasion to go into the correctness or otherwise of the judgment reported in prabhat sound studios v. additional collector of central excise (supra).5. for these reasons, we allow this trc and set-aside the order of the tribunal as it relates to the controversy discussed hereinabove. however, we confirm the finding of the first appellate authority with regard to the rate of tax. no costs.