Skip to content


Eastern Engineers Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
CourtSales Tax Tribunal STT Mumbai
Decided On
Judge
Reported in19567STC229Tribunal
AppellantEastern Engineers
RespondentThe State of Bombay
Excerpt:
1. the applicants who are a firm of engineers known as messrs. eastern engineers, bombay, were assessed to special tax under section 6 of the bombay sales tax act of 1946 in respect of the period 1st january, 1950, to 31st march, 1951, on account of certain passenger lifts installed by them at a number of premises at bombay. the entry in schedule i to the said act under which they were so assessed is entry 21, which reads thus : "domestic electrical appliances other than torches, torch cells, filament lighting bulbs and fans." 20 per cent of the total costs incurred on the said installation was deducted as representing the labour charges, etc. in the appeal from the order of assessment made by the sales tax officer it was argued on behalf of the applicants that passenger lifts not being.....
Judgment:
1. The applicants who are a firm of engineers known as Messrs. Eastern Engineers, Bombay, were assessed to special tax under Section 6 of the Bombay Sales Tax Act of 1946 in respect of the period 1st January, 1950, to 31st March, 1951, on account of certain passenger lifts installed by them at a number of premises at Bombay. The entry in Schedule I to the said Act under which they were so assessed is entry 21, which reads thus : "Domestic electrical appliances other than torches, torch cells, filament lighting bulbs and fans." 20 per cent of the total costs incurred on the said installation was deducted as representing the labour charges, etc. In the appeal from the order of assessment made by the Sales Tax Officer it was argued on behalf of the applicants that passenger lifts not being specifically mentioned in entry 21 and lifts not being domestic electrical appliances, the assessing officer had wrongly applied the said entry 21. The Assistant Collector dismissed the appeal, holding that passenger lifts were covered by the said entry. On an application in revision made to the Additional Collector, it was contended that the word "domestic" had a particular relation to dwelling places only, whereas passenger lifts were largely supplied to industrial houses or factories, but the Additional Collector held that the expression "domestic" should be broadly interpreted and that a lift was a domestic electrical appliance. Shri Patel who appeared for the applicants also contended that the installation of a lift did not amount to a sale, and that, therefore, his clients were not liable to any sales tax at all. He relied in support of this contention on the case of Gannon Dunkerley & Co. v. The State of Madras [1954] 5 S.T.C. 216. This contention was rejected on the ground that that case, which had to do with the passing of property in materials used in constructing buildings, bridges, etc., had no direct bearing on the facts of this case. The Additional Collector observed "In a sense the lift may be said to be a finished article only requiring to be installed at a particular place. Some of the bills issued by the applicant produced to me also show that the sales tax was charged by them on the cost of the lift. From this it would be clear that what they had undertaken to supply was a lift and then to instal it at a particular place. In view of this it must be held that there is a clear sale of the lift to be installed in this case, as what is done by the applicants is to supply the lift first and then to instal it in a particular place. As the lift is finished article, I do not see any objection to the transaction being treated as a sale". The revision application was, therefore, dismissed.

2. Shri Patel who appears before us for the applicants has relied mainly on the second argument based on the decision in Gannon Dunkerley's case [1954] 5 S.T.C. 216. The assessment in the case dealt with there by the High Court of Madras had been made under the Madras General Sales Tax Act (IX of 1939). By an amending Act of 1947, the definition of "sale" had been extended by the addition of the following words: "includes also a transfer of property in goods involved in the execution of a works contract". A new clause had also been introduced in Section 2 which defined "works contract" as meaning "any agreement for carrying out for cash or for deferred payment or other valuable consideration, the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the fitting out, improvement or repair of any movable property." In the definition of "turnover" an explanation had been added relating to works contracts. Similarly, the original Bombay Sales Tax Act, 1946, contained certain provisions analogous to these definitions as amended, which were deleted by Bombay Act XXV of 1947. Those provisions were as follows: "Contract" was defined as any agreement for carrying out for cash or deferred payment or other valuable consideration, the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property; the definition of "goods" included the following words at the end of the present definition : "whether or not to be used in the construction, fitting out, improvement or repair of immovable property"; the definition of "sale" had the words : "including a transfer of property in goods involved in the execution of contract" immediately before the words "but does not include a mortgage, hypothecation, charge or pledge"; the definition of "sale price" included the amount payable to a dealer as valuable consideration "for the carrying out of any contract, less such portion as may be prescribed, of such amount representing the usual proportion of the cost of labour to the cost of materials used in carrying out such contract"; and the definition of "turnover" included the following words at the end : "or carrying out of any contract, effected or made during a given period." These parts of the several definitions were deleted as stated above by the Bombay Act, XXV of 1947. The deletion of these passages from the definitions concerned, according to Shri Patel, was based on the view that the carrying out a contract for the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property did not contain any element of the sale of goods, thus giving effect to the principle embodied in the decision of the Madras High Court in Gannon Dunkerley's case [1954] 5 S.T.C. 216, which of course was decided later on the 5th April, 1954.

That was a case of certain building contracts entered into by the assessees with the State Government and other parties for the execution of certain works specified in the plans annexed to the agreements for which they were to be paid a lump sum subject to revision in case there were alterations, omissions, deductions or additions. Their Lordships observed that such contracts were always considered in law as entire and indivisible contracts in the sense that the complete fulfilment of the promise by one party is a condition precedent to the right of the other to call for the fulfilment of any part of the promise by the other. It was further held that there was no element of sale of the materials in such a contract, as the contract is not in substance and in effect a contract to sell the materials as goods for a price stipulated between the parties, the ownership in which is to pass in accordance with the principles applicable to them and laid down in the Sale of Goods Act. Their Lordships observed : "The ultimate result of executing a contract is to bring into existence immovable property and not movable property, and the contract therefore does not become a contract relating to sale of goods but is only a contract to build." At page 238 they observed : "It is clear from the foregoing discussion that there is no element of sale of the materials in a building contract and that the contract is one and entire and is indivisible.

Unless the work is completed, the builder is not entitled to the price fixed under the contract or ascertainable under the terms of the contract. It does not imply or involve a contract of sale of the materials for a price stipulated. The property in the materials passes to the owner of the land not by virtue of the delivery of the materials as goods under and in pursuance of an agreement of sale which stipulates a price for the material. The property in the materials passes to the owner of the land because they are fixed in pursuance of the contract to build, and along with the corpus, which ultimately results by the erection of the superstructure, the materials also pass to the owner of the land".

It is contended by Shri Patel that in this case similar considerations should apply, there being no contract regarding the sale or supply of the parts of the lifts, so that there can be no delivery of movable property as such constituting a sale or supply of goods, and that the lifts were to be installed and fixed in the buildings concerned, after which alone it would be possible for the assessees to give delivery to their employers. Shri Patel has particularly relied on two cases referred to in Gannon Dunkerley's case [1954] 5 S.T.C. 216, viz., Appleby v. Myers (1867) L.R. 2 C.P. 651 and Clark v. Bulmer (1843) 12 L.J. Ex. 463. The plaintiff in the first case contracted to erect machinery on the defendants' premises at specific prices for particular portions and to keep it in repair for two years the price to be paid upon the completion of the whole. After some portions of the work had been finished and others were in the course of completion, the premises with all the machinery and materials thereon were destroyed by an accidental fire. The learned Judges had to consider the question whether the property in the materials had passed to the owner of the premises. Blackburn, J., observed: "Though this is the prima facie contract between those who enter into contracts for doing work and supplying materials, there is nothing to render it either illegal or absurd in the workman to agree to complete the whole, and be paid when the whole is complete, and not till then ; and we think that the plaintiffs in the present case had entered into such a contract". In Clark v, Bulmer (1843) 12 L.J. Ex. 463, the contract was to build a steam engine, which was also a contract for work, labour and supply of materials. Baron Parke observed : "The engine was not contracted for to be delivered, or delivered as an engine, in its complete state, and afterwards affixed to the freehold ; there was no sale of it, as an entire chattel and delivery in that character ; and therefore it could not be treated as an engine sold and delivered. Nor could the different parts of it, which were used in the construction, and from time to time fixed to the freehold, and therefore became part of it, be deemed goods sold and delivered, for there was no contract for the sale of them as movable goods; the contract was, in effect, that the plaintiffs were to select materials, make them into parts of an engine, carry them to a particular place, and put them together and fix parts to the soil and so convert them into a fixed engine on the land itself, so as to pump the water out of a mine. The cases of Cotterell v. Apsey (1815) 6 Taunt. 322, and Tripp v. Armitage (1839) 4 M. & W. 687, are authorities that materials used, or intended to be used, in the construction of a fixed building, cannot be deemed goods sold and delivered ; and there is no difference between the erection of this sort of fixture and any other building ; the proper form of count is in indebitatus assumpsit for work, labour, and materials, or for erecting and constructing an engine".

5. As against these decisions Shri Kabe for the State of Bombay has relied on the decision of the Nagpur High Court in Pandit Banarsi Das v. State of Madhya Pradesh [1955] 6 S.T.C. 93, wherein the decision in Gannon Dunkerley's case [1954] 5 S.T.C. 216 was dissented from. That case arose out of the Central Provinces and Berar Sales Tax Act, 1947, in which "contract" was defined as including the carrying out for cash or deferred payment or other valuable consideration-(i) the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property, or (ii) the installation or repair of any machinery affixed to a building or other immovable property ; "goods" was defined so as to include all materials, articles and commodities, whether or not to be used in the construction, fitting out, improvement or repair of immovable property ; "sale" was defined so as to include a transfer of property in goods made in the course of the execution of a contract; "sale price" was defined as including the amount payable to a dealer as valuable consideration for the carrying out of any contract less such portion, representing the proportion of the cost of labour to the cost of materials used in carrying out such contract, as may be prescribed ; and "turnover" was defined so as to include the aggregate of the amounts of sale prices and parts of sale prices received or receivable by a dealer in respect of the supply of goods or in respect of the supply of goods in the carrying out of any contract effected or made during the prescribed period excluding inter alia such sales as may be prescribed. Their Lordships held these provisions to be intra vires, and further held that building materials were goods of which there could be a sale or supply subject to the sales tax. Their Lordships observed : "That building contracts are entire, that property in the building materials passes when they are part of immovable property and that payment is in a lump sum and not separately for the materials may be matters of consequence in some contexts. But there is always a sale if goods are transferred to another and paid for by him. It cannot be gainsaid that there is payment for materials, though the payment is not made separately but as part of a larger amount.

6. There is no single written contract in this case, but a sample correspondence between the applicants and the Jayant Jain Housing Co., Ltd., for whom they installed two lifts, has been produced to show the nature of the contracts entered into by the parties. The said correspondence begins with a letter addressed by the applicants to Messrs Jayant Jain Housing Co., Ltd., submitting their lowest terms "for supplying and erecting our British make 'Gimson' lifts". There is an item in the details furnished regarding "price" under which it is stated : For the lift as above completely erected at site and putting in working condition, as required under the new Bombay Lift Rules...Rs. 20,550." The "terms of payment" are thus given: "50 per cent, with order, 25 per cent, against delivery of the lift materials at site, and the remaining 25 per cent, on completely putting the lift in order". On 24th September, 1949, the housing company stated that they would like to have two lifts from the applicants from their incoming consignment. On 28th September, 1949, the housing company's engineer and contractor, Shri K.J. Khatre, wrote to the applicants requesting them to confirm his conversation with one Mr. Kapadia of the applicants' firm that "the price of Rs. 20,550 will be all inclusive, including collapsible gates, machine beams, electric mains from service position, etc., only sales tax on machinery will be extra to Rs. 20,550". In reply the applicants wrote on 29th September, 1949, that the price of Rs. 20,550 was inclusive of collapsible gates only but that as a special case it would include electric mains. On 5th November, 1949, the applicants informed Shri K.J. Khatre that they had sold four lifts since the offer had been made to the housing company. On 8th May, 1950, the applicants enquired of the said engineer and contractor to whom the lift material should be delivered. They repeated the question in the postscript to their letter to the housing company dated 9th June, 1950. On 28th August, 1950, the applicants made an application to the Inspector of Lifts, P.W.D., Bombay, for permission to erect the lifts at the premises of Messrs Jayant Jain Housing Co. Ltd., enclosing the necessary information in the specified form. On 12th September, 1950, Shri K. J. Khatre requested the applicants to start work of erection of the lifts. The Electrical Engineer to Government, P.W.D., Bombay, wrote to the housing company on 31st October, 1950, granting permission for the erection of two lifts in their premises under Section 4 of the Bombay Lifts Act, 1939, subject to the condition that the permission would be valid for a period of 6 months. On 4th November, 1950, the applicants informed Shri Khatre that his clients would be charged extra Rs. 200 per cage for each lift. On 18th November, 1950, the applicants complained to Shri Khatre of the theft of certain wiring materials, the machine room having been broken open, and added, "Kindly therefore see that proper arrangement is made for the safeguard of our materials in the premises to avoid recurrence of similar nature and oblige". On 12th December, 1950, the applicants wrote to the Bombay Electric Supply and Transport Undertaking with a request for an appointment for the electrical connection of the lifts. On 22nd December, 1950, the applicants submitted their bill to the Jayant Jain Housing Co. Ltd., including Rs. 1,037-8-0 as sales tax on Rs. 33,200 at half an anna per rupee. That bill shows that out of the total amount Rs. 42,537-8-0, Rs. 30,000 had already been paid by the said housing company. On 16th January, 1951, the applicants, by a letter, requested the Inspector of Lifts, P.W.D., Bombay, to inspect the lifts and grant permission to work them; a chalan for Rs. 40 for the licence fees was enclosed with the letter.

7. The case of Gannon Dunkerley [1954] 5 S.T.C. 216 was mainly concerned with building contracts. The English law as to fixtures is based on the maxims quicquid plantatur solo, solo credit as to trees, and quicquid inaedi-ficatio solo, solo cedit as to buildings, and the application of these maxims is varied by a mass of exceptions in favour of a tenant and in favour of trade fixtures. The maxims on which the English law is founded do not generally apply in India. Mulla in his Transfer of Property Act has pointed out that long before the Act was enacted Paramanick's case (1886) 6 W.R. 228 settled that it was the common law of India that buildings and other improvements do not by the mere accident of their attachment to the soil become the property of the owner of the soil. In the Encyclopaedia of Forms and Precedents (by J.M. Lightwood and others, Edition 1946) many forms of contracts for works and buildings and other civil engineering works are given in all of which the contractors are to construct and complete the work.

Similar forms of contracts have been prepared by certain Architects and Engineers in Bombay. (We have seen a printed booklet prepared by Shri J.P. Parekh, Medows Street, Bombay). In our opinion such contracts cannot he said to be similar to the contract which is to be found in the correspondence produced in this case. The proposition that every kind of fixture is exempt or should be exempt from the sales tax will hardly bear examination. If such an unqualified proposition was to be regarded as an unalterable principle of law it would be easy to evade the sales tax in numerous cases, e.g., in the case of ceiling fans, refrigerators, air-conditioning plants, textile and other machinery, and even curtains by the simple expedient of entering into a contract with somebody that they would be affixed to the buildings concerned.

The case of Love v. Norman Wright (Builders), Limited [1944] K.B. 484, involved a sub-contract for the fixing of curtains in certain premises.

Goddard, L.J., observed :-The first point taken by Mr. O'Sullivan for the defendants was that the sub-contract was not for a sale of goods, but was a contract for work and labour and the supply of material in connexion therewith. On this point we agree with the learned Judge who has held that as the contract involved transferring to the defendants for a price chattels, namely, curtains, in which they had no previous property, it was a sale of goods. If one orders another to make and fix curtains at his house the contract is one of sale, though work and labour are involved in the making and fixing ; nor does it matter that ultimately the property was to pass to the War Office under the head contract. As between the plaintiff and the defendants, the former passed the property in the goods to the defendants who passed it on to the War Office" (p. 487). In Benjamin on Sale (Eighth Edition, 1950), it is pointed out that there has been diversity and even conflict of opinion, in relation to the proper principle by which to test whether certain contracts are contracts for the sale of goods, etc., or contracts for work and labour done and materials furnished. After a review of some of the cases on this question the following propositions have been laid down by the learned author at page 167 :- (1) A contract where a chattel is to be made and affixed by the workmen to land or to another chattel before the property therein is to pass, is not a contract of sale, but a contract for work, labour and materials, for the contract does not contemplate the delivery of a chattel as such.

(2) When a chattel is to be made and ultimately delivered by a workman to his employer, the question whether the contract is one of sale or of a bailment for work to be done depends upon whether previously to the completion of the chattel the property in its material was vested in the workman or in his employer. If the intention and result of the contract is to transfer for a price property in which the transferee had no previous property then the contract is a contract of sale.

Where, however, the passing of property is merely ancillary to the contract for the performance of work such a contract does not thereby become a contract of sale.

(i) Where the employer delivers to a workman either all or the principal materials of a chattel on which the workman agrees to do work, there is a bailment by the employer, and a contract for work and labour, or for work, labour and materials (as the case may be), by the workman.

Materials added by the workman, on being affixed to or blended with the employer's materials, thereupon vest in the employer by accession, and not under any contract of sale.

(ii) Where the workman supplies either all or the principal materials, the contract is a contract for sale of the completed chattel, and any materials supplied by the employer when added to the workman's materials vest in the workman by accession.

(4) The fact that the value of the materials supplied by one of the parties exceeds the value of the materials supplied by the other does not conclusively prove that the more valuable are the principal materials.

8. In the case of a lift it is set up or installed out of the parts thereof which are imported by firms dealing in such parts, and it becomes a question whether proposition No. 3(ii) given above will apply. If it can be held that the lift is manufactured out of the said parts, the following two propositions to be found at pages 344 and 346 would appear to be relevant, viz., (1) "When the seller is to manufacture the goods for the buyer the rule is that prima facie the property will not pass till the goods are completely made and are appropriated with mutual assent"; and (2) "The general rule being then as above stated, that the property in an article to be made does not pass until it be completed and appropriated with mutual assent on completion, it is nevertheless competent to the parties to agree that the articles may be so appropriated and the property pass before completion". In support of the second proposition the cases of Woods v.Russell 5 B. & Al. 942 and Clerk v. Spence 4 A. & E. 448 and other cases have been considered by the learned author. Both those cases related to contracts for the building of ships. In the second of these cases certain passage cited from Woods v. Russell 5 B. & Al. 942 was stated to be "founded on the notion that provision for the payment regulated by particular stages of the work is made in the contract with a view to give the purchaser the security of certain portions of the work for the money he is to pay, and is equivalent to an express provision that on payment of the first instalment the general property in so much of the vessel as is then constructed shall vest in the purchaser". The Court deliberately adopted this dictum from Woods v.Russell 5 B. & Al. 942 as a rule of construction by which, in similar ship-building contracts, the parties are held to have by implication evidenced an intention that the property shall pass, notwithstanding the general rule to the contrary. In Seath v. Moore (1886) 11 App. Gas.

350, at p. 381, Lord Watson has observed: "Where it appears to be the intention, or in other words the agreement of the parties to a contract for building a ship, that at a particular stage of its construction the vessel, so far as then finished, shall be appropriated to the contract of sale, the property of the vessel as soon as it has reached that stage of completion will pass to the purchaser, and subsequent additions made to the chattel thus vested in the purchaser, accession becoming his property.

9. Coming now to the contracts in this case, as shown in the correspondence between the applicants and the Jayant Jain Housing Co.

Ltd., (which, it has been stated by the applicants, may be taken as a sample of the general body of contracts), the question that arises is whether each contract was "entire and indivisible" as in Gannon Dunkerley's case [1954] 5 S.T.C. 216, or it is capable of being divided into two parts, one for the delivery of the lift and the other for its installation, the two being severable from each other. In the initial letter of the applicants in the correspondence, we find the applicants quoting their lowest terms "for supplying and erecting our 'Gimson' lifts". This offer does not necessarily mean an offer merely to erect the lifts out of the materials required for them. The word "supplying" governs the words "our British make 'Gimson' lifts" as much as the word "erecting". The price of Rs. 20,550 must be regarded as inclusive, but the amount appears to have reference primarily to the cost of the materials, otherwise the expression "price" would have hardly been used. That expression undoubtedly has definite implications of a sale.

The terms of payment stated by the applicants are, "50 per cent with order, 25 per cent against delivery of the lift materials at site, and the remaining 25 per cent on completely putting the lift in order". An application was made by the applicants to the Inspector of Lifts, P.W.D., as late as 28th August, 1950, for permission to erect lifts, the earlier stage of delivery having been completed. The permission was granted on 31st October, 1950. Before this date, on 8th May, 1950, the applicants wrote Shri K. J. Khatre, "We beg to inform you that lift materials for your above clients have duly arrived, and as we intend to forward these materials at site, we would like to know to whom we should deliver there". This question was repeated in a postscript to a letter dated 9th June, 1950, addressed to the Jayant Jain Housing Co., Ltd. The applicants on the 5th November, 1949, wrote to Shri Khatre that they had sold four lifts since the offer made to him and inquired whether they should reserve the lifts required. A question was raised during the correspondence as to whether the price of Rs. 20,550 included collapsible gates, machine beams, etc., and on 4th November, 1950, the applicants informed Shri Khatre that the clients should be charged Rs. 200 extra for each cage for a lift. It seems to us clear from the correspondence that the contract was definitely for a transfer of property on the site before being set up or installed as a lift, and that, therefore, the contract can be divided into two parts, one for the delivery of the materials and the other for the erection of the lifts. Under Section 33 of the Indian Sale of Goods Act delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorised to hold them on his behalf. The use of the expression "our materials" in one letter of the applicants dated 18th November, 1950, was made in connexion with a certain theft that had taken place and appears, in our opinion, to have been loosely used. The fact that the applicants charged the sales tax to the Jayant Jain Housing Co. Ltd., appears to us to indicate that there had been a sale, and it has not been shown to our satisfaction that the said charge was made through mistake on account of a faulty practice followed in the past as contended by Shri Patel.

10. In the case of Pandit Banarsi Das v. State of Madhya Pradesh [1955] 6 S.T.C. 93, certain definitions in the C.P. & Berar Sales Tax Act, 1947, as stated above, have no doubt been considered. The following observations of their Lordships, however, appear to us to be relevant : "When Entry 48 (in List II of Schedule VII to the Government of India Act, 1935) was framed it conferred on the Provincial Legislature powers of the widest amplitude to tax the sale of goods in all its aspects and forms. The text being explicit, the text is conclusive alike in what it directs and what it prohibits. The necessary conditions for the impost, however, were that there should be a sale of goods. The selection of the taxable event and the severance of transactions of sale from other transactions in which they might be embedded was a necessary part of of the power.... If a building contract was not split up into its component parts, that is to say, material and labour, in legislative practice relating to the ordinary regulation of sale of goods, there is no warrant for holding that it could not be so split up even for purposes of taxation. The reasoning in the Madras case does not take into account the fundamental fact that the legislature could select out of a composite transaction in the actual sale of materials and tax such sale in exercise of undoubted plenary powers. The word 'supply' used in the definitions has not any sinister purpose and, read in the context of other definitions, is apt to describe the sale of building materials not directly but as part of a building contract". Although certain parts of the original definitions of goods, sale, sale price and turnover in the Act of 1946 have been omitted by the Amending Act XXV of 1947, the words "or supply' occur after the word "sale" in the definitions of "sale price" and "turnover". The authorities below have deducted 20 per cent from the amount which the applicants have charged as representing the labour charges incurred, the rest being taken to be the price of the materials used in installing the lifts. Shri R.V.Patel stated that he had no objection to this apportionment. We find that one of the items mentioned in the Indian Customs Tariff, 40th Issue (in operation from 1st September, 1955) is "passenger lifts and component parts and accessories thereof" [item 72(4)]. It is quite clear that the Customs Authorities do not have to deal with the passenger lifts as finally installed or erected, but with the parts of lifts that are imported into the country. It seems to us that it is in that sense that the word "lift" has been used in the expressions in the correspondence between the parties indicating or suggesting the sale of the lifts concerned, and that the delivery of the materials to the housing company on site, therefore, should be construed to mean the sale of lifts in the said correspondence. Our conclusion, therefore, is that there was a sale of the component parts of the lifts to the housing company by the applicants prior to the installation of the lifts in the premises for a price equivalent to 80 per cent, of the total price charged, and that this amount must be regarded as subject to sales tax.

11. The next question that arises is whether this is a case for the imposition of the special tax under Clause (b) of Sub-section (1) of Section 6 of the Act of 1946, i.e., under item 21 in Schedule I to the Act, or whether the applicants were right in charging the general tax to the housing company. It appears to us doubtful whether lifts can be regarded as appliances, even though a lift may be held to be a "domestic article", as contended by Shri Kabe, in the sense that it is not intended for the use of the general public. It does not appear to us unlikely that the Legislature in using the expression "domestic electrical appliances" had in mind only articles such as electric stoves, irons, refrigerators, but not such things as lifts. The word "domestic" is defined, inter alia, in the Shorter Oxford English Dictionary (Third Edition) as -of or belonging to the home, house or household ; household, home, family. Of or pertaining to one's own country or nation, internal, inland, home; indigenous". It is similarly defined in Webster's New International Dictionary (Second Edition).

"Appliance" is defined in the Shorter Oxford English Dictionary, inter alia, as "a thing applied as means to an end ; apparatus", and in Webster's New International Dictionary, inter alia, as "a thing applied or used as a means to an end ; a piece of apparatus, device ; as to use a mechanical appliance". In the Indian Customs Tariff, (40th Issue) referred to above, "passenger lifts and component parts and accessories thereof" have been put under item 72(4) while we find separate mention in item 73 of electric Instruments, apparatus and appliances, which are treated apparently as distinct from passenger lifts. In our opinion, this application deserves to succeed in part. We, accordingly, allow the application in part and holding that this is a case falling under Clause (a) and not under Clause (b) of sub-section(1) of Section 6, direct that the general tax at the rate of half an anna in the rupee shall be levied on the applicants' turnover in respect of sales or supplies of the constituent part of the lifts in question calculated at 80 per of the amounts charged by the applicants to their customers in respect of the supply and installation of those lifts. We direct that the orders of the lower authorities shall be modified accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //