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Shyam and Company Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. No. 214 of 1975
Judge
Reported in[1980]45STC167(All)
AppellantShyam and Company
RespondentCommissioner of Sales Tax
Appellant AdvocateBharatji Agarwal, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
- - the machine which plays the record uses a needle like the earlier models of gramophones and the speakers in the cabinet emit the sound transmitted from the records. in view of the partial success and failure, there shall be no order as to costs......refers to sound discs, which, on being used on an appropriate mechanical contrivance, emit sound recorded in them. the notification does not indicate that the records referred to are confined to records, which can be played on gramophones of the older model. in fact, there is no basic difference in the records, which are now played on record players, and the older model of records. the records now manufactured are played on machines having a higher revolution than those, which were produced for being played on gramophones' of the older model. the normal speed at which records of the older model could be played was at the rate of 78 revolutions per minute, while records now manufactured are normally played at the speed of either 33 r. p. m. or 45 r. p. m. both the records,.....
Judgment:

C.S.P. Singh, J.

1. The Revising Authority, Allahabad, has referred the following two questions of law for the opinion of this Court:

(1) Whether record players, record changers and their records fall within the category of the item described at serial No. 7 of Notification No. ST-1738/X --1012-1963 dated 1st June, 1963, and, as such, taxable at 10 per cent or whether they are unclassified items taxable under Section 3 of the U.P. Sales Tax Act?

(2) Whether transistor radio sets fall within the category of the goods described in serial No. 15 of Notification No. ST-1738/X -- 1012-1963 dated 1st June, 1963, and, as such, taxable at 10 per cent or whether they are unclassified items taxable under Section 3 of the U.P. Sales Tax Act?

2. The reference is being treated as a revision in view of the amendment in the law.

3. As has been noticed, the first question is as to whether record players, record changers and records fall within the category of item No. 7 of Notification No. ST-1738/X -- 1012-1963 dated 1st June, 1963. We will address ourselves to the first question at the outset. Item No. 7 of the notification is to the following effect:

7. Gramophones and component parts thereof and records.

4. The revising authority has taken the view that records sold by the assessee fell within the category of records enumerated in item No. 7 of the notification. As regards record players and record changers, he has taken the view that as both are not basically different from gramophones, and are meant for reproducing sound, they would fall within the category of gramophones. The counsel for the assessee contended that record players and record changers are not gramophones as contemplated by the notification and neither do the records mentioned in item No. 7 include records, which are played on record players, sold by the assessee. It was contended that records contemplated by item No. 7 are confined to records played on gramophones and not records used on record players. The question as regards 'records' may be considered first. The word 'records', as occurring in item No. 7, in view of the fact that it is used in the notification along with gramophones, refers to sound discs, which, on being used on an appropriate mechanical contrivance, emit sound recorded in them. The notification does not indicate that the records referred to are confined to records, which can be played on gramophones of the older model. In fact, there is no basic difference in the records, which are now played on record players, and the older model of records. The records now manufactured are played on machines having a higher revolution than those, which were produced for being played on gramophones' of the older model. The normal speed at which records of the older model could be played was at the rate of 78 revolutions per minute, while records now manufactured are normally played at the speed of either 33 r. p. m. or 45 r. p. m. Both the records, however, are capable of emitting the sound recorded on them when played on the appropriate mechanical contrivance. In that fact, the older model of records can still be played on record players, as the speed of record players can be adjusted to suit the revolutions required for playing a particular record. Thus, not only records which can be played on speeds of 33 r. p. m. and 45 r. p. m. but also the older records which can be played at a speed of 78 r. p. m. can also be played on the record players. The question as to whether the record players should be treated as gramophones requires consideration now. A gramophone is a contrivance for reproducing sound by use of records. It consists of a revolvin disc, which in the older model used to be powered by spring, with a sound box attached, in which a needle is inserted for purposes of playing a record. So far as record players are concerned, they are also sound producing contrivances, the only difference being that instead of the revolving disc being powered by a mechanical spring, the force required for revolving it is supplied by an electric motor. The machine which plays the record uses a needle like the earlier models of gramophones and the speakers in the cabinet emit the sound transmitted from the records. Thus, essentially record players are nothing but gramophones, and a mere change in their name will not take them outside the category of gramophones, as occurring in item No. 7 of the notification. My attention was also drawn to Notification No. ST. II-6627/X -- 1012 dated 1st December, 1973, and item No. 40 thereof, which is to the following effect:

40. Gramophones, record players, record changers, parts and accessories thereof and gramophone records and gramophone needles.

5. It was urged that in case the record players and record changers were comprehended in the earlier notification, it would not have been necessary for the legislature to have mentioned record players and record changers separately in the subsequent notification. The mere mention of record players in the subsequent notification does not conclusively lead to the result that, but for this notification, the legislature treated record players as separate from gramophones, even though the word 'gramophones' was wide enough to include record players. Sometimes notifications after mentioning a general category of articles mention specific categories, which even though might not have been specifically mentioned, would be comprehended in the general category. As there is no essential difference between record players and gramophones, record players were rightly taxed as gramophones.

6. The position of record changers is, however, different. They are obviously not gramophones, as they do not emit any sound. Their only purpose is to facilitate the change of records so that the record players can be played for sometime without manual effort. It was urged on behalf of the standing counsel that they are components of gramophones. Now, although a gramophone or a record player is bound to have a disc on which records have to be put so that they may be played, it is not necessary that a gramophone or a record player must have a record changer. The disc and the amplifier and other parts, which are necessary for causing emission of sound from the record undoubtedly fall within the category of parts of a gramophone, but record players may be played even without a record changer by manually placing the record on the disc and changing it after it had been played. This being so, record changers would not fall within the category of essential parts of gramophone.

7. The next question in dispute is as to whether transistor radios sold by the assessee fall within item No. 15 of the notification of 1st June, 1963. Item No. 15 is to the following effect:

15. Wireless reception instruments and apparatus, radios and radiogramophones, electrical valves, accumulators, amplifiers and loud-speakers and spare parts and accessories thereof.

8. Counsel for the assessee contended that the transistors were not wireless reception instruments as comprehended by the notification, and the radios referred to in the notification included only such radios as had electric valves for purposes of receiving transmissions of sound. I am unable to accept this contention. Radio is an instrument for receiving transmitted sound and then it amplifies it so that it can be heard. A transistor radio does the same work and the only difference is that instead of using electric valves for receiving transmissions, transistors are utilised. A mere change in the mechanism of the transistor radio, in my view, will not make the article different from a radio. Thus, transistor radios sold by the assessee were liable to be taxed under the notification dated 1st June, 1963.

9. The revision is, accordingly, partly allowed. It is held that the record players, records and transistor radios sold by the assessee were liable to be taxed under the notification dated 1st June, 1963, but not record changers. A copy of this judgment will be sent to the revising authority under Section 11(8) of the Act. In view of the partial success and failure, there shall be no order as to costs.


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