Allahabad High Court
Macneill And Magor Ltd. vs The Commissioner Of Trade Tax on 8 October, 2004
Author: Rajes Kumar
Bench: Rajes Kumar
JUDGMENT Rajes Kumar, J.
1. Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 31.0.1995 relating to the assessment year 1977-78.
2. Applicant was carrying on the business of photocopying machine. Dispute in the present revision relates to the rate of tax on photocopy machine. Tribunal held photocopying machine as duplicating machine and confirmed the levy of tax @ 10%. While the claim of the applicant was that it is a machinery and, therefore, liable to tax @ 7%.
3. Heard learned counsel for the parties.
5. Notification No. ST-II-6627/x-1012-1972, dated 01.12.1973 issued Section 3-A of the Act. Entry 52 and 98 reads as follows:
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Sl.No. Description of Goods Point at which tax is Rate
levied of tax
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I II III IV
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52 Machinery and spare parts of machinery, M or I 7% not being such machinery, or spare parts thereof as are taxable under any other item in this Schedule.
98 Type-writers, tabulating machines, M of I 10% calculating machines and duplicating machines and parts thereof.
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5. Entry 70 of the notification No. ST-1233 dated 14.04.1974 reads as follows:
"Photographic and other cameras and enlargers lenses, films and plates, paper and cloth and other parts accessories required for use therewith."
6. Entry 74 of notification No. ST-II-1223/XI-9(94)-U.P. Act dated 31.03.1992 w. w.e.f. 01.04.1991 reads as follows:
"Photo copiers. M or 13.9 per cent."
7. Learned counsel for the applicant contended that the photo copying machine could not be taxed as a duplicating machine in the year under consideration He submitted that the subsequent notification No. 1223 dated 31.03,1992 separately classified photocopier, though the entry of duplicating machine existed as such, which shows the intent of the Legislature not to treat photocopy machine as duplicating machine. He submitted that the subsequent notification should be considered in interpreting the entry. He submitted that the goods which was specifically classified by subsequent notification can not be held to be included originally under any entry and in support of his contention he relied upon the decision of this Court in the case of Balaji Enterprises, Madras v. Collector of Central Excise, Madras reported in 1997 SCC (5), 268. He further submitted that subsequent notification can be looked into for interpreting preamended entry of the notification and in support of his contention he relied upon the decision in the case of Rajasthan Roller Flour Mills Association v. State of Rajasthan, , in the case of Saint Pauls Teachers Training institute (Men & Women) v. Director of Schools Education, Madras and Ors., reported in 1990 (Supplement) SCC, 80 and in the case of Ghanshyam Das and Ors. v. Dumania and Ors. .
8. Learned Standing Counsel submitted that entries of the notification, which were in existence during the relevant year should only be looked into. He submitted that subsequent notification could be seen only in a situation when there was any ambiguity in the entry of the notification and since there was no ambiguity in the entry of the notification, therefore, it was not necessary to see the entry of the subsequent notification He further submitted that it is always open to the Legislature to exclude or include a particular item in the notification by fiction or to classify any item by issuing specific notification in respect thereof. Even if in the year 1992 photocopy has been separately classified, it can not be said that in the year under consideration photocopier was excluded from duplicating machine. At the most, it can be said that by the notification No. 1223 dated 31.03.1992 w.e.f. 01.04.1991 photocopy machine after being specifically classified deemed to have been excluded from the entry of 'duplicating machine'.
9. Having heard learned counsel for the parties, I do hot find any force in the argument of learned counsel for the applicant. No doubt subsequent notification can be looked into for interpreting the entry of a notification relating to the earlier period, but when there is any ambiguity in the entry of the notification or preamended entry requires any interpretation. If there is no ambiguity in the entry of the notification, which is relevant to the year under consideration, the same should only be considered. It is always open to the Legislature to include or exclude any item from the entry of any notification or to classify any item by issuing specific notification in respect thereof. Subsequent notification No. 1223 dated 31.03.1992 classifying the photocopier separately, only mean that the photocopy machine was specifically classified and was deemed to be, exclude from any other entries. Reliance is placed on the decision of the Apex Court in the case of CST v. Agra Belting Works, reported in 1987 UPTC, 850. In this case there was a notification issued under Section 3-A of the Act for "All kinds of beltings" cotton fabrics, was exempted from tax-under the notification issued in exercise of power under Section 4 of the Act. This Court held that Belting being cotton fabrics exempted from tax and could not be taxed though it was covered under the notification of "All kinds of Belting" issued wider Section 3-A of the Act. Apex Court held that once a notification is issue in exercise of power under Section 3-A introducing the entry "Ail kinds of belting," Belting was liable to tax under the said entry and it is deemed to be excluded from the entry of cotton fabrics. Question is whether the view of the Tribunal treating the photocopier machine as duplicating machine is correct or not. Learned counsel for the applicant has not much disputed the view of the Tribunal in this respect, if the photocopier machine is duplicating machine, it can not be taxed under the entry of machinery and spare parts because the entry of machinery, excluded such machinery, which are taxable under any other item in the Schedule. In the case of Bhuji Products v. State of Gujrat, reported in 1984 UPTC, 328. Similar question came up for consideration before the Division Bench of the Gujarat High Court. Gujrat High Court held that Xerox machine/xerographic machine as a duplicating machine. The relevant paragraph of the judgment is referred as below.
"Duplicating machines and teleprinters and tape-recorders including, tape for use in connection therewith and spare parts and accessories thereof.
So far as Xerox machine is concerned its principal and sole function is to make copies. Whether the copies are made by any mechanical process or by some of her chemical or electronic process is immaterial. In copying machine some mechanical principle maybe applied-along with some use of chemistry. The copies which may come out by application of mechanical as well as by the principles of chemistry may be the product of duplicating machines, which maybe commonly known as such. But if on the basis of the principles of photography and surface electrification some instrument is devised so as to obtain copies, such machine or instrument would be a duplicating machine because the essential function of the machine is to take out copies. It does not create any original material. The products is known not by the application of the basic principle with which it is manufactured. It is known by its function. The function of the Xerox machine is to take out copies could be taken in contracted size or in enlarged size is immaterial. Simply because one of the additional features or facilities of the Xerox machine is that copies be taken in contracted size or in enlarged size, it does not cease to be a copying machine. The Tribunal has relied upon its own decision in the case of Kores (India) Ltd. (Revision Application No. 118 of 1982) decided an February 2, 1984. A copy of the said judgment is made part of the paper book of the reference. We have been taken through the entire judgment. The Tribunal has referred to the meaning of xerography as stated in Encyclopaedia Britannica, World Book Encyclopaedia and other literature. After referring to this literature, the Tribunal has rightly come to the conclusion that xerox-machine would be duplicating machine or duplicator."
10. Cases relied upon by the learned counsel for the applicant are applicable to the present case and are clearly distinguishable.
11. In the result revision fails and is dismissed.