Skip to content


State of Tamil Nadu Vs. Gemini Studios - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Tax Case No. 204 of 1970 (Revision No. 147)
Judge
Reported in[1975]36STC357(Mad)
AppellantState of Tamil Nadu
RespondentGemini Studios
Appellant Advocate K. Venkataswami, the Additional Government Pleader No. I
Respondent Advocate C. Natarajan, Adv.
DispositionPetition dismissed
Cases ReferredSri Lakshmi Machine Works v. State of Madras
Excerpt:
.....could rely on category (c) as well. we are therefore not satisfied on the evidence available that otis lift could be brought within any of the class of goods referred to in category (b) of the certificate. if a belief is entertained by the assessee bona fide that the goods are covered by the certificate of registration, but it ultimately turned out to be not a proper understanding of the certificate of registration or correct understanding of the same, it will not attract the provisions of section 10(b). the use of the word 'falsely' itself implies that the person making the representation knew that the certificate of registration does not cover that item, but knowing fully well that it does not, states that it is covered. 8. as already stated even in the objection filed by the..........registration certificate issued under the central sales tax act did not authorise the purchase of otis lift by issue of c forms, the joint commercial tax officer, t. nagar division, initiated proceedings under section 10(b) read with section 10a of the act. the respondents replied by their letter dated 9th may, 1967, that otis lift purchased by them would come either within the class of articles mentioned in category (b) of the certificate of registration or under category (c) as accessories of plant and machinery necessary to execute the contracts for studio hire. in support of their contention that the lift was indispensable for the manufacturing process carried on in their premises and, therefore, it would come within the class of goods mentioned in category (b), the respondents also.....
Judgment:

V. Ramaswami, J.

1. This revision petition is filed against the order of the Tribunal setting aside the penalty levied under Section 10(b) read with Section 10A of the Central Sales Tax Act, 1956. The respondents are dealers registered under the Central Sales Tax Act. They are film producers and processors of cinema films. They purchased an Otis lift for Rs. 20,630 on 30th September, 1960, by issuing C forms. On the ground that the registration certificate issued under the Central Sales Tax Act did not authorise the purchase of Otis lift by issue of C forms, the Joint Commercial Tax Officer, T. Nagar Division, initiated proceedings under Section 10(b) read with Section 10A of the Act. The respondents replied by their letter dated 9th May, 1967, that Otis lift purchased by them would come either within the class of articles mentioned in category (b) of the certificate of registration or under category (c) as accessories of plant and machinery necessary to execute the contracts for studio hire. In support of their contention that the lift was indispensable for the manufacturing process carried on in their premises and, therefore, it would come within the class of goods mentioned in category (b), the respondents also filed an affidavit by their technical manager. The Joint Commercial Tax Officer, T. Nagar, in the view that the certificate Issued did not authorise the purchase of Otis lift by issue of C forms held that the respondents have committed an offence under Section 10(b) and imposed a penalty of Rs. 2,166.15 under Section 10A of the Act. This order was confirmed by the Appellate Assistant Commissioner. But, on further appeal, the Tribunal was of the view that the Otis lift in question was intimately and essentially connected with the manufacturing process carried on in the laboratory of the assessees and that, therefore, it would be deemed to have been included in the registration certificate. Though the Tribunal noted the argument of the respondents that in any case they acted bona fide in the belief that the article in question was covered by the registration certificate, it did not give any finding on that aspect. But, on the finding that the certificate of registration covered such Otis lifts, it held that the offence has not been committed and accordingly set aside the penalty levied. The revenue has preferred this revision petition.

2. The learned Government Pleader submitted that Otis lifts would not be covered by any of the class of goods mentioned in category (b) of the certificate of registration. He also contended that category (c) referred to in the certificate of registration is not available to the respondent, as Section 8(3) of the Act has been amended with effect from 1st October, 1958, by Act 31 of 1958, which excluded the goods required for use in the execution of contracts from the category of goods which could be covered by the certificate of registration under that provision. On the other hand, the learned counsel for the respondents contended that Otis lifts will be covered in the class of goods referred to in category (b) of the certificate of registration. In any case, even if the legal position is that after the amendment of Section 8 with effect from 1st October, 1958, the goods referred to in category (c) would not be included in the certificate of registration, still since the certificate itself was not called for and amended, the respondents bona fide believed that it could rely on category (c) as well.

3. The first question, therefore, which arises for consideration is whether the certificate of registration includes Otis lifts either in the class of goods mentioned in category (b) or category (c). Section 8(3) as it stood before the amendment included the following categories of goods for which (c) form declarations could be given. They are goods of the description (i) intended for resale, (ii) for use by the purchaser in the manufacture of goods for sale, and (iii) for use by him in the execution of any contract. In the amended Section 8(3), the third category of goods have been omitted with effect from 1st October, 1958. The certificate of registration given to the respondents covered under the category 'for use in manufacture' the following items :

Chemicals, raw films, laboratory accessories, sound equipments, camera equipments, editing equipments and accessories.

4. In category (c) under the heading 'for use in the execution of contracts', the following items were mentioned :

Accessories for plant and machinery necessary to execute contracts for studio hire.

5. It was contended by the learned counsel for the respondents that the Otis lift was indispensable for the manufacturing process carried on in their premises and that, therefore, it will be covered by the class of goods under the head 'laboratory accessories'. The affidavit filed by the technical manager in this regard states that the respondents are engaged in the manufacture and processing of colour films from raw films and in the process of carrying out such work have to move and transport chemicals, raw films, laboratory accessories, sound equipments, camera equipments, editing equipments, etc. Though there are two flights of stair cases, one on the eastern side and the other on the western side, they could not be used for these purposes without detriment to their efficiency and that the lift is intended mainly for use in the manufacturing process. But, we are unable to agree with the learned counsel that merely because the lift could be used more beneficially for lifting these articles used in manufacturing processes than an ordinary flight of steps, it would come within the category of laboratory accessories or accessories necessary or incidental for the manufacturing process. It is not the case of the respondents that the lift was serving only for lifting these colour films, raw films, etc., and, that is, as solely and exclusively intended as if it were a conveying belt in the process of manufacture. It appears to be a general lift which also is used for the purposes referred in the affidavit of the technical manager. The lift is serving the first and second floors of the respondents' building and there is no evidence to show that the lift could not be used for access to the other parts of the premises. We are therefore not satisfied on the evidence available that Otis lift could be brought within any of the class of goods referred to in category (b) of the certificate.

6. It was then contended by the learned counsel for the respondents that it will at least come under category (c) of the certificate. Before considering the question whether it will come under category (c) or not, we have to consider an incidental question as to whether category (c) was available to the respondents at all in this case. As already stated, Section 8(3) was amended by deleting these classes of goods from the category of goods covered by that provision. We are not persuaded to hold that in spite of the amendment to the provision with effect from 1st October, 1958, the certificate continued to have validity. Such a contention would be wholly unsupportable. When the provision is repealed, automatically the forms and the other certificates issued shall be deemed to have been pro tanto modified. A similar question came up for consideration before the Supreme Court in Modi Spinning and Weaving Mills Co. Ltd. v. Commissioner of Sales Tax, Punjab : [1965]1SCR592 . In that case, the assessee-company purchased raw cotton in Punjab, ginned the cotton in its ginning mills in Punjab and sent the bales to its spinning and weaving mills situated in the State of Uttar Pradesh for purposes of manufacture of cloth. In computing its taxable turnover, the assessee claimed to deduct a certain sum on account of raw cotton purchased by it on a certificate of registration granted to it in which there was no condition that the goods were for use by the assessee 'in the manufacture in the State of Punjab of goods for sale'. Section 5(2)(a)(ii) of the Punjab General Sales Tax Act, 1948, and Rule 26 of the Punjab General Sales Tax Rules, 1949, had, however, been amended to provide for that condition. The old certificate of registration issued to the assessee-company did not contain the words 'in the State of Punjab'. The Supreme Court held that when the provisions in the Act and the Rules were amended by including the words 'in the State of Punjab', the registration certificate also shall be deemed impliedly modified by including those words in the certificate itself. We also think that calling for the certificate again and cancelling the (c) category goods in the certificate of registration is neither possible nor required. Once the goods themselves have been deleted from the category of goods under Section 8(3), automatically it will not attract either the provisions of Section 8(1), which enables the concessional rate of tax or the issue of C forms in respect of the same. We have to therefore proceed on the basis that there is no class of goods falling under category (c) covered by the certificate of registration.

7. Even so, the learned counsel for the respondents contended that the respondents were under a bona fide impression that either the Otis lift would come within the class of goods mentioned in category (b) or in category (c) and that, therefore, they are not liable to be penalised under Section 10A. This court in Sri Lakshmi Machine Works v. State of Madras [1973] 32 S.T.C. 407, with reference to an offence under Section 10(b) has held that mere representation based on a bona fide belief will not bring an assessee within the mischief of that provision. The representation in order to come under that provision should be a false representation to the knowledge of the assessee. If a belief is entertained by the assessee bona fide that the goods are covered by the certificate of registration, but it ultimately turned out to be not a proper understanding of the certificate of registration or correct understanding of the same, it will not attract the provisions of Section 10(b). The use of the word 'falsely' itself implies that the person making the representation knew that the certificate of registration does not cover that item, but knowing fully well that it does not, states that it is covered. The learned counsel for the respondents even went to the extent of saying that in cases where a person could have applied for and obtained an inclusion of an item in his certificate of registration and the contravention of Section 10(b) is with reference to that class of goods, he shall not be deemed to have made any false representation, when it is found that the certificate of registration does not cover that item, as, according to him, he could have easily applied for inclusion of that item in his certificate and no mala fide intentions could be attributed. We are unable to agree with this extreme contention of the learned counsel. It would be rewriting the section itself so as to read that only in cases where the dealer could not have obtained a certificate of registration with respect to that item or could not have included that item in the certificate of registration, the penal provisions under Section 10A could be invoked. What is required plainly under Section 10(b) is knowledge that the item is not covered by the certificate and the representation that it is covered by the certificate. Of course the representation is implied in the issue of C forms to the out-of-State seller.

8. As already stated even in the objection filed by the respondents to the notice issued proposing to initiate proceedings under Section 10A read with Section 10(b), the respondents pleaded bona fides and contended that they bona fide thought that it will be included in category (b) as well as category (c). But the Joint Commercial Tax Officer had not given any finding that the respondents either did not entertain any bona fide doubt or could not have entertained any bona fide doubt as to whether the certificate of registration covered this item and that, therefore, the offence under Section 10(b) has been committed. In fact, even the Appellate Assistant Commissioner did not give any finding. We, therefore, have to sustain the order of the Tribunal though not on the same reasonings given by it.

9. The petition accordingly fails and it is dismissed with costs. Counsel's fee Rs. 250.


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