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Celluloid Bangle Works Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSales Tax Reference No. 19 of 1961
Judge
Reported in[1962]13STC611(Bom)
ActsBombay Sales Tax Act, 1953 - Sections 34, 34(1) and 34(2)
AppellantCelluloid Bangle Works
RespondentThe State of Bombay
Appellant AdvocateY.P. Trivedi, ;U.T. Shah and ;S.J. Mehta, Advs.
Respondent AdvocateH.M. Seervai, Advocate-General, i/b., Little & Co.
Excerpt:
.....special tax under entry 34 schedule ii to act, of 1953 - contention raised that celluloid is not plastic material and does not attract entry 34 - bangles were made out of waste cinematograph films which were essentially made from celluloid - held, celluloid liable to be charged special tax under entry 34. - - ' fabrics and articles made of such sheets or fabrics not falling under item (i) or (ii). 3. it was contended on behalf of the applicant before the sales tax authorities as well as before the tribunal that the bangles were made of cinematograph films which in their turn were made of celluloid, and therefore were not made of plastics, and therefore, no special tax could be levied under item no. this contention of the applicant has been negatived by the sales tax authorities as..........by the sales tax authorities as well as by the tribunal, the tribunal holding that celluloid is a plastic material. the application made by the applicant under section 34(1) also failed. the applicant then moved this court under sub-section (2) of section 34, and at the direction issued by this court, the tribunal has drawn up the statement of the case and referred to us the following question of law : 'whether the sale of celluloid bangles is liable to special tax under entry 34, schedule ii, to the bombay sales tax, act, 1953, prior to its amendment in 1954 ?' 4. it is the contention of mr. trivedi, learned advocate for the applicant, that the bangles made of celluloid are not bangles made of plastics. the tribunal was in error in holding that celluloid is a plastic material. in.....
Judgment:

Tambe, J.

1. This is a reference under section 34(2) of the Bombay Sales Tax Act, 1953. The applicant Messrs Celluloid Bangle Works is a proprietary concern doing the business of manufacturing bangles and selling them in the market. According to the statement of facts, the bangles are made of waste cinematograph films made essentially from celluloid. The Sales Tax Authorities sought to levy special tax on the sale of these bangles under item No. 34 of Schedule II to the Bombay Sales Tax Act, 1953, as it stood prior to its amendment. That entry is in the following terms :

----------------------------------------------------------------------- 'Description of goods Rate of Reduction under special clause (ii) of tax. section 11. ----------------------------------------------------------------------- 1 2 3 ----------------------------------------------------------------------- (i) Bengles, bottle caps and Three pies in 1/65th part. buttons made of plastics the rupee. when sold at a rate not exceeding annas 2 each. (ii) Other articles made of do. do. plastics sold at a rate not exceeding annas 12 each or when sold by length at a rate not exceeding annas 12 per yard. (iii) All other articles made Nine pies in 3/67th part. of plastics. the rupee. (iv) Plastic sheets and do. do.' fabrics and articles made of such sheets or fabrics not falling under item (i) or (ii). -----------------------------------------------------------------------

3. It was contended on behalf of the applicant before the Sales Tax Authorities as well as before the Tribunal that the bangles were made of cinematograph films which in their turn were made of celluloid, and therefore were not made of plastics, and therefore, no special tax could be levied under item No. 34 of Schedule II. This contention of the applicant has been negatived by the Sales Tax Authorities as well as by the Tribunal, the Tribunal holding that celluloid is a plastic material. The application made by the applicant under section 34(1) also failed. The applicant then moved this Court under sub-section (2) of section 34, and at the direction issued by this Court, the Tribunal has drawn up the statement of the case and referred to us the following question of law :

'Whether the sale of celluloid bangles is liable to special tax under entry 34, Schedule II, to the Bombay Sales Tax, Act, 1953, prior to its amendment in 1954 ?'

4. It is the contention of Mr. Trivedi, learned Advocate for the applicant, that the bangles made of celluloid are not bangles made of plastics. The Tribunal was in error in holding that celluloid is a plastic material. In support of his contention, Mr. Trivedi referred us to certain observations in Encyclopaedia Britannica under the heading 'plastics'. The learned Advocate-General raised a preliminary objection that whether celluloid is plastics or not is purely a question of fact, and if any reference book had to be shown to the authority deciding the question of fact, the applicant should have brought to the notice of the Tribunal the observations made in the Encyclopaedia Britannica on which reliance is now sought to be placed. The applicant having failed to bring it to the notice of the Sales Tax Authorities cannot now ask this Court to refer to those observations. We do not propose to hold the applicant to such a technicality. In our opinion, the observations relied on by Mr. Trivedi, on which reliance is placed by the applicant, are hardly of any assistance to the applicant. Properly speaking, all the products should be considered in a description of plastics and the plastics industry, but the term plastics is much more highly restricted and that no unchallenged definition can be made of the word. 'The term plastics, therefore, is essentially a commercial classification to which no strictly scientific definition can be applied.' We are not here concerned with strictly and precisely defining the meaning of the word 'plastics', but, on the other hand, we are here concerned with ascertaining whether celluloid is plastic material. The reference appropriate to the issue is celluloid occurring in Volume 5 of Encyclopaedia Britannica, and it shows that celluloid is the first synthetic plastic material, also known as xylonite or artificial ivory. The learned Members of the Tribunal also have made a reference to 'Miracles of Invention and Discovery', published by Odhams Press Ltd., London. They have observed : 'Celluloid is a plastic material, goods manufactured out of which have been classified into two group, namely, thermo-plastics which require heat and pressure for moulding purposes, and thermo-setting plastics which undergo a chemical change in the process of being moulded under heat and pressure and cannot afterwards be reshaped by the application of further heat and pressure, (e.g., bakelite), as thermo-plastics can be. The principal member of the thermo-plastics family is celluloid'. The observations on which reliance is placed by Mr. Trivedi, do not in any manner show that the conclusion reached by the Tribunal that celluloid is a plastic material is in any manner vitiated. On the other hand, turning to the heading 'celluloid' in the Encyclopaedia Britannica, it shows that celluloid is a plastic material. Even under the heading 'plastics' at page 41C of Volume 18 of the Encyclopaedia Britannica, cellulose plastic has been shown as one of the varieties of the plastics, and one of the several varieties of cellulose plastics is nitrocellulose. Nitrocellulose is used for manufacture of cinematograph films. At page 41D, it is observed : 'Further work resulted in processes which allowed the nitrocellulose to be fabricated in continuous fashion, enabling the production of suitable base for both still and motion-picture photography'. It is not in dispute that the bangles which the applicant sells are made of celluloid. The bangles would, therefore, in our opinion, be bangles made of plastics within the meaning of clauses (i) and (iii) of item 34 of Schedule II of the Act. Mr. Trivedi, however, argues that technically and scientifically speaking, celluloid may be a plastic material, but in the commercial world, celluloid bangles are not understood as plastic bangles; but celluloid bangles and plastic bangles are two different and distinct things as understood in the commercial world. The meaning which a Court should give to the words in an entry in the Sales Tax Act should be in consonance with the term as understood in the commercial would. He referred us to the following observations in a decision reported in K. V. Varkey v. Agricultural Income-Tax and Rural Sales Tax Officer, Peermade [1954] 5 S.T.C. 348 :

'Counsel for the plaintiff suggested a test which I think apposite. Would a householder when asked to bring home fruit or vegetables for the evening mean bring home salted peanuts, cashewnuts or nuts of any sort ?'

5. In our opinion, the applicant has laid no foundation to advance this argument before as inasmuch as he has not raised such a contention before the Tribunal. Whether in the market, bangles made out of celluloid and bangles made out of plastics other than celluloid are understood as different commodities under different names or not, is not known, nor has any evidence to that effect been led by the applicant before the Tribunal. It is not therefore possible to assume that bangles made out of celluloid and bangles made out of plastics other than celluloid are known in the market as different and distinct commodities, nor is there any evidence to show that a person going to the market for purchasing plastic bangles would not purchase bangles manufactured or prepared by the applicant.

6. Lastly, it is argued by Mr. Trivedi that the bangles have not been wholly and entirely prepared out of cinematograph films, but, no the other hand, they are prepared from waste cinematograph films, aluminium foils and certain chemicals. It is the contention of Mr. Trivedi that unless it is established that bangles are wholly and entirely prepared out of plastics, they would not fall either under clause (i) or clause (iii) of item No. 34 of Schedule II to the Act. Again, it is not possible for us to allow Mr. Trivedi to raise this contention before us, inasmuch as he has not raised any such contention before the Tribunal. On the other hand, it is clear that the only contention raised before the Tribunal was that cinematograph films were prepared out of celluloid; bangles were made out of waste cinematograph films; celluloid is not plastic material, and therefore, entry 34 was not attracted. That contention was not accepted, and as already stated, in our opinion, rightly. There is no material on record to hold that the waste cinematograph films and aluminium were at any time combined together and out of that the bangles were prepared. In fact, there is no material on record from which it can be assumed or inferred that any other material apart from cinematograph films was used in the making of the bangles. We asked Mr. Trivedi whether aluminium foils and cinematograph films were combined together or mixed together and out of the product so produced by mixing the two things together, the bangles were prepared. He had been unable to give us any satisfactory answer to the question. Mr. Trivedi produced before us bangles said to have been manufactured by the applicant. It appears that aluminium foils are only used by way of decoration on the bangles. The material used in the decoration of an article cannot be said to be material out of which that article is made of. For the reasons stated above, in our opinion, it would not be possible for us to entertain or accept this last contention raised by Mr. Trivedi.

7. In the result, the question referred to us will be answered in the affirmative. The applicant shall pay the costs of the respondent, quantified at Rs. 250.

8. Reference answered in the affirmative.


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