Bishambhar Dayal, C.J.
1. This is a writ petition by Shri B.C. Kame who is the proprietor of Kame Photo Studio. He has two more branches--New Delhi Studio and P. Kame Studio, all in the city of Jabalpur. He carries on the business of buying and selling photographic goods. In the certificate of registration as dealer under the Madhya Pradesh General Sales Tax Act it is entered that he also uses the photographic goods as raw material for manufacture of other goods for sale. When he buys the goods outside the State of Madhya Pradesh he gives a declaration that he will either resell the goods or use them as raw material for manufacture of other goods for sale. He thus gets a concession in respect of sales tax under the Central Sales Tax Act on his purchases. After getting those goods he either sells them to his customers here or uses them in three ways--(1) by taking photographs and supplying prints thereof, (2) by making enlargements for customers who bring their own negatives, and (3) by simply preparing positive prints of the same size from the negatives brought by the customers. For doing all these kinds of works he charges a consolidated amount differing according to the work involved and the size and number of prints demanded by the customer.
2. The Madhya Pradesh Sales Tax Department has assessed the petitioner for the different periods from 1st April, 1964, to 31st March, 1969, to sales tax on his turnover on best judgment basis as he did not keep full and complete accounts. The figures of assessment of one of such periods are reproduced to indicate the basis of assessment which has been followed in each period. There being no difference in the principle involved, it is not necessary to give the details of other periods. For the first period, i.e., 1st April, 1964, to 31st March, 1965, the assessment was made by order dated 30th April, 1970. The total turnover was taken to be Rs. 41,500. Out of this a deduction of Rs. 6,500 was allowed as relatable to developing and enlargement which was not considered chargeable. The balance of Rs. 35,000 was again divided into two parts--Rs. 12,000 being treated as relatable to sale of materials as such and charged at 10 per cent. and the rest Rs. 23,000 being taken to be the receipts on account of the supply of photoprints to those who got themselves photographed at the studios.
3. In the present writ petition the challenge is only to the last item similarly charged for all the periods on the gross receipts for the supply of photo prints, treating them to be manufactured finished products sold to the customers. The contention of the petitioner is that in taking a photograph, preparing its negative and then preparing the final positive print for supplying the same to the customer, the petitioner undertakes a contract of work and labour and does not enter into a sale transaction. The customer does not come to the studio to buy the printed paper but to utilise the skill of the photographer to get a good photo prepared. The petitioner has also contended that the prepared positive print is not a marketable commodity and he cannot sell the photo of one person to any other person except with the former's consent. His claim, therefore, is that this item for each period-has been wrongly taxed.
4. In reply a preliminary objection has been taken that appeals under the Madhya Pradesh General Sales Tax Act, 1958, have however been filed and are pending and, therefore, this writ petition should not be entertained. We have, however, decided to consider this question on merits because it involves a difficult matter of principle and also because the State Government has issued a notification dated 10th March, 1965, by way of clarification saying 'photographers under these categories are liable to pay sales tax on the payment received from the customers'. In view of this notification we consider it proper to decide the question of taxability of this item on merits.
5. The contention of the respondent on merits was that preparing positive prints of photos taken is a manufacturing process by chemical and mechanical means and is not any more a matter of exercise of any art or skill. The finished photo is sold to the customer and is charged according to the number and size of prints. It is a commercial activity in the nature of trade and business. As such, sales tax is payable on the whole price received from the customer.
6. Learned counsel for both the parties cited a large number of authorities for and against the propositions involved, but we do not propose to burden our judgment with a consideration of all of them.
7. The classical distinction between the two classes of contracts is to see if the movable article or chattel, as English lawyers would call it, is taken as such or the contract is primarily one of work and labour and the transfer of chattel is only ancillary. Take for instance, when a customer takes a shoe or a suit he takes it for its use as such; but when a client takes a paper from a lawyer on which the latter has written out his opinion on a legal matter or has drawn up a pleading or a document, the client does not take the paper as such but takes it only as a vehicle of the lawyer's labour and ideas. These are extreme illustrations which easily fall into one or the other class. But cases may be on a border line that may require considerable thought for deciding to which class a particular contract belongs. To this end some other criteria may also be applied as aids to come to a conclusion. Another way of looking at such contracts would be to see whether the article prepared is a marketable commodity so that even if not prepared to special order it would be got in the market to satisfy the particular need, though not so well; or in its very nature it is such that it can only be had if the skill of some person is requisitioned to make it available. In such cases the customer who wants it would think of entering into an agreement of work and labour rather than of purchasing an article. From both these points of view also a photograph is a thing which is valued for the imprint and not the chattel and must be got prepared when wanted and would not be available ready-made in the market. Of course, the pictures of leaders and public men sold in the market are in a different class and need not be confused with personal photographs.
8. The proportion of cost between the material used and of the charges for labour are also relevant. Where the difference is considerable it is obvious that the attention of the parties was on the skill and labour rather than on buying the material. But the contrary does not necessarily follow. Where the difference is not considerable the contract may still not be of sale. In A.A. Jariwala & Brothers v. State of Gujarat  16 S.T.C. 942 though the cost of zari used for embroidery was 30 per cent. of the total cost it was held to be a contract of work and labour and not one for sale of zari.
9. The fact that the process of preparing photographs is not so simple and of pure skill as painting a portrait, but complicated instruments like a modern camera and chemical processes like developers are used therein, cannot, to our mind, make any difference to the nature of the contract. For instance, in the Jariwala case  16 S.T.C. 942 it certainly would not matter whether the embroidery was done with a simple needle or with a complicated embroidery machine. To this extent we are unable to agree with the reasoning of the Patna High Court in M. Ghosh v. State of Bihar  12 S.T.C. 154 and, with respect, agree on this point with the Bombay High Court in Camera House v. State of Maharashtra  25 S.T.C. 354. By the way, we also agree with the criticism by the Bombay High Court of the ratio of the Madras case  8 S.T.C. 370 B.V. Bhatta v. State of Madras  16 S.T.C. 441, in the Camera House case, at pages 361-62 of the report. On the whole, we feel that the customer while placing an order for a photograph is not making a contract to purchase the paper, on which the photograph is impressed, as such, but it comes to him merely as ancillary to the main contract of work and labour. The case is governed by the principle enunciated in Robinson v. Graves  All E.R. 935.
10. We may lastly make it clear that in this case we are not called upon to go into the question whether the material used in preparing the photograph is sold and taxable. The petitioner has alleged in the petition that he has paid full tax on the value of such material and the respondents have neither denied the fact nor have claimed tax on such material. We, therefore, express no opinion on that question and need not consider either
Masanda's case,  8 S.T.C. 370 where the only question referred to this Court was whether such material alone could be taxed, or the observations of the Bombay High Court in Camera House case,  25 S.T.C. 354 about severability of the contract into one separately for service and supply of material.
11. The result, therefore, is that we allow this petition and quash the assessment orders (annexures G, H, I and J) to the extent to which they assess sales tax on the estimated turnover relating to photographs taken by the petitioner. Parties are, however, directed to bear their own costs. The security for costs deposited by the petitioner be refunded to him.