1. These two tax appeals arise out of an order passed by the Board of Revenue holding that the assessee is liable to pay sales tax and fixing his taxable turnover for the years 1955-56 and 1957-58 at Rs. 10,410 and Rs. 20,050 respectively.
2. The assessee owns a studio by name T. V. S. Sarma Studio. He describes himself as a commercial Artistist. He receives orders from film producers and distributors and prepares designs for advertisement purposes. He uses his skill and energy and produces a sketch as per the directions of his customers. After finishing the work he hands over the papers on which designs are drawn to his customers who in their turn get them printed and use them as cinema posters for their business. He has nothing to do with the preparation of the blocks from and out of the designs prepared by him or the printing of the designs. He also paints photos with suitable colours and gives colouring touches to the slides given to him by his customers.
3. The Assistant Commercial Tax Officer, Adyar, treating him as a dealer called upon him to produce account books. The assessee represented to him that he was not maintaining any account books for his business but gave details of his income and expenditure for the assessment years in question. On the said statement the Assistant Commercial Tax Officer fixed the turnover at Rs. 10,512 for the year 1955-56 and Rs. 20,870 for the year 1957-58 and assessed him to tax on these amounts under the Madras General Sales Tax Act.
4. The assessee filed an appeal before the Appellate Assistant Commissioner of Commercial Taxes, Madras City III, who held that the assessee did not enter into any contract for sale of goods, but only undertook to execute work for his customers and there was no transfer of property in any goods in the course of these transactions. The assessee was therefore not held liable to pay tax on the works executed by him in the assessment years.
5. The Board of Revenue exercising its revisional power under Section 34 of the Madras General Sales Tax Act, 1959, proposed to cancel the orders passed by the Appellate Assistant Commissioner and gave notice to the appellant why the original order of the Assistant Commercial Tax Officer should not be restored. After hearing the appellant, the Board came to the conclusion that the appellant sold finished products, such as designs prepared by him on Art paper, photos and slides painted with suitable colours, to his customers, that the transfer of such finished products in the course of his business should be deemed to be a sale and that the bills issued by him to his customers showed that there was transfer of goods for a price and there was an element of sale in the dealings. The Board therefore reversed the orders of the Appellate Assistant Commissioner, Madras City, and refixed the taxable turnover excluding receipts on account of supply of slides and directed the Deputy Commercial Tax Officer, Adyar, to give effect to the order by collecting the tax due. It is against this order the appellant prefers these appeals.
6. After going through the facts in this case, we find that the appellant is only an Artist. He is not carrying on any business as contemplated under the Act. Nor is he a dealer as defined under the Act. He is not selling any goods in the course of execution of a contract. There is no transfer of property involved in these transactions. He only gives his personal services in the production of a work of Art. What is given to his customers is the resultant effect of the use of his skill, energy and labour in producing a finished product as per the requirements of his customers. In the words of Blackburn, J., in Lee v. Griffin (1861) 30 L.J.B. 252. which is a leading case on the subject,
It would be an abuse of language to say that the paper or parchment of the deed were goods sold and delivered.
7. In a case of this nature the question that arises for consideration is, is it a contract for sale of goods or a contract for work and labour. The further question that arises is what is the subject-matter of the contract Is it the work and skill which are to be applied to materials which are merely ancillary or is it a chattel to the production of which the work and skill are merely incidental means The Rules applicable to cases of this kind are formulated thus by Greer, L.J., in Robinson v. Graves  1 K.B.579:
If you find...that the substance of the contract was the production of something to be sold...then that is a sale of goods. But if the substance of the contract, on the other hand, is that skill and labour have to be exercised for the production of the Article and that it is only ancillary to that that there will pass...some materials in addition to the skill involved...the substance of the contract is the skill and experience.
8. The law on the subject has been compendiously stated in Corpus Juris Secundum, Volume 77, page 585, as follows :-
Whether a contract is one for the sale of goods, or for work and labour to be rendered may depend on whether the primary intent is merely to provide for the delivery of goods, or whether the essential consideration is work and labour to be performed at the employer's instance and for his use rather than for the producer's benefit. The distinction has been made that, if the property is not such as the seller usually has on hand for sale and in existence at the time of the sale, but is made specially for the buyer and on his special order, the contract is one for work and labour, and not of sale ; but that if the property ordered is exactly such as the seller makes and keeps on hand for sale to anyone, and no change or modification of it is made at the buyer's request, it is a contract of sale, even though it may be entirely made after, and in consequence of, the buyer's order for it. It has also been held that if the property is in existence at the time of the contract for its transfer it is a sale although the seller is to do work thereon to adapt it to a particular use for the buyer; and the fact that work and labour are to be done on, or in connection with, material sold as an incident to, or in connection with, the transfer of title does not rob the transaction of its essential characteristics of a sale if the whole or any measurable part of the consideration for the performance of the contract is compensation for the material.
9. In T.C. No. 147 of 1961 (Baraskar v. State of Madras Since reported at  14 S.T.C 615.) where the facts are similar, a Bench of this Court to which one of us was a party after reviewing the case law on the subject and also the relevant textual authorities observed
It would be a misuse of language to describe an Artist's work, be it for remuneration, as a sale of the product of his Art for a price. There is no warrant for it either under the Sale of Goods Act or under the Madras General Sales Tax Act. Common sense repels it. The correct approach is to view the transaction as a whole and not to dissect it and catch hold of a limb of it and say that there is an element of sale in the composition.
10. In a similar case, namely, D. P. Roy Chowdhury v. State of Madras  13 S.T.C. 866 Veeraswami, J., held that the person concerned was not a dealer under the Act. The petitioner in that case is a well-known sculptor, Artist and painter, who made and supplied two bronze casts, one of Mahatma Gandhi and the other named 'Triumph of Labour', to two State Governments at a cost of Rs. 60,000 and Rs. 41,000 respectively. The question arose whether the petitioner was liable to sales tax onthose transactions. The learned Judge observed :
Whether the transactions amounted to sales within the definition of the Act would have to be decided with reference to the terms in which a dealer has been defined and a sale has been defined by the Act. The primary element which, as I said, is lacking is the trade or commerce aspect in the transactions.
11. It was held in that case that the petitioner therein was not liable to sales tax.
12. Applying the principles laid down in the cases cited above, we hold that the appellant is not a trader or dealer doing any business as such. He is not offering any goods for sale and, as stated already, there is also no transfer of property involved in the transactions.
13. In Benjamin on Sale, 8th Edition, page 163, the difference between a contract of sale and contract for work is well brought out by an illustration. It is stated :
The difference may perhaps be illustrated by a man who goes to an Artist and says : 'Paint my portrait,' and one who goes into an Artist's studio or an Art shop and says : 'Sell me a picture.
14. In the present case, the customers go to the appellant's studio and say : 'Prepare a design, paint a picture and touch the slides'. It cannot be said that there is any contract for sale of goods. The appellant cannot therefore be called upon to pay sales tax on these transactions.
15. The appeals are accordingly allowed with costs. Counsel's fee Rs. 100 in T. C. 131 of 1962 only.