These are two revisions against the order of the Tribunal dated 6.8.2002 for the assessment years 1996-97 & 1997-98 under the U.P. Trade Tax Act (hereinafter referred to as the "Act") raising following questions :
1."Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to set aside the tax imposed on the sale of goods transferred in execution of work contract?
2.Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal has rightly treated the printing work as job work in the light of the Hon'ble Supreme Court in the case of Associated Cement Vs. Commissioner of Customs JT-2001-(2)-141?"
The respondent-assessee (hereinafter referred to as the "assessee") was engaged in printing of lottery tickets. The printing was carried on the paper supplied by the parties. The ink and processing material including chemicals, used in the printing, have been provided by the assessee. The assessing authority levied tax on the value of ink and processing material used in the printing under Section 3F of the Act. The consumable purchased and used in the printing has not been taxed.
Being aggrieved by the order of the assessing officer, the assessee filed appeal before the Deputy Commissioner (Appeals), IInd, Trade Tax, Ghaziabad. It was contended by the assessee that the ink, chemicals and other processing materials have not been passed on to the parties concerned and, therefore, the value of such goods could not be liable to tax under Section 3F of the Act. The appellate authority has accepted the claim of the assessee and deleted the tax assessed on the value of ink and processing materials including chemicals. He, however, upheld the levy of tax on the packing materials.
Being aggrieved by the order of the first appellate authority, the Commissioner of Trade Tax as well as the assessee filed appeals before the Tribunal. The Tribunal, by the impugned order, allowed the appeal of the assessee and dismissed the appeal of the Commissioner of Trade Tax. The Tribunal has upheld the order of the first appellate authority deleting the tax on the value of ink and other processing materials, including chemicals. The Tribunal has relied upon the decision of Karnataka High Court in the case Surveshri Keshoram Surendranath Phototaj Pvt. Ltd. and others Vs. A.C.T.O., Banglore, reported in (2001) 30 STJ-44 and the decision of Bombay High Court in the case of Commissioner of Sales Tax, Maharashtra (Mumbai) Vs. R.M.D.C. Press Pvt. Ltd., reported in 1999 NTN (Vol. 14)-132.
Being aggrieved by the order of the Tribunal, the revenue filed the present revisions raising the aforesaid questions of law. In the revision, the revenue has only disputed the order of the Tribunal so far as it upheld the order of the Deputy Commissioner (Appeals) deleting the tax on the ink and other processing materials, including chemicals, etc. which have been used in the printing. The revenue has not disputed the order of the Tribunal deleting the tax on the packing materials.
Heard Sri B.K. Pandey, learned Standing Counsel and Sri Ashok Kumar, Advocate appearing on behalf of respondent-assessee.
Learned Standing Counsel submitted that it is wrong to hold that in the printing, ink and chemicals do not pass on to the customers. The inks are diluted in a chemical and thereafter solution of the ink is used in the printing and both ink and chemical passed on to the customers as they are obviously visible on a plain paper. In support of the contention, he relied upon two Division Bench decisions of the Bombay High Court, namely, Commissioner of Sales Tax Vs. Matushree Textile Limited, reported in 2004 NTN (Vol. 25)-923 and Commissioner of Sales Tax, Mumbai Vs. Hari and Company, reported in 2006 NTN (Vol. 31)-398.
In the case of Commissioner of Sales Tax, Mumbai Vs. Hari and Company (supra), the decision of Bombay High Court in the case of R.M.D.C. Press Pvt. Ltd. has been held per incurium in view of the decision of the Full Bench of the Bombay High Court in the case of Sarvodaya Printing Press Vs. State of Maharashtra, reported in (1994) 93 STC-387 which has been upheld by the Apex Court in the case of State of Maharashtra Vs. Sarvodaya Printing Press Fine Art Printer, reported in 1999 NTN (Vol. 15) 619. He submitted that in the case of Commissioner of Sales Tax Vs. Matushree Textile Limited (supra), it has been held that in the contract of dyeing and printing of cloth, transfer of property in colours, dyes and chemical are passed on to the customers.
In the case of Commissioner of Sales Tax, Mumbai Vs. Hari and Company (supra), the Division Bench of the Bombay High Court held that in the photocopying, ink is passed on to the customers.
Sri Ashok Kumar, counsel for the assessee submitted that in the process of printing the ink loses its identity. Therefore, it does not pass on to the customers. He further submitted that the chemical is consumed in the process and, therefore, it does not pass on to the customers inasmuch as under Section 3-F of the Act the value of consumable is not liable to tax.
I have considered the rival submissions of the parties and the impugned orders.
In my view the order of the Tribunal is not sustainable. Section 3-F of the Act levies tax on the value of goods involved in execution of works contract. The printing work has been held to be works contract by the Apex Court in the case of State of Maharashtra Vs. M/s. Sarvodaya Printing Press Fine Art Printer (Supra). The question for consideration is whether in the printing of lottery tickets, ink and processing materials, namely, chemicals, etc. are passed on to the customers. Undoubtedly, ink passed on to the customers as it is apparent on the printing paper. The inks are diluted in chemicals (processing material) and such ink in the diluted forms are being used in the printing, therefore, both ink and chemical (processing material) are passed on to the customers. It was not the case of the assessee at any stage that the chemical (processing material) was consumable and evaporates in the process of printing and is not passed on to the customers. Therefore, I am of the view that both the ink and chemical used in the printing are passed on to the customers. It may be mentioned here that the assessee had also purchased and used consumable but the same has not been taxed.
The Division Bench of the Bombay High Court in the case of Commissioner of Sales Tax Vs. Matushree Textile Limited (supra) has held that the contract of dyeing and printing of cloth is a work contract and there is a transfer of property in colours, dyes and chemical.
In the case of Commissioner of Sales Tax, Mumbai Vs. Hari and Company (supra), the Division Bench of Bombay High Court has held that the contract for bringing out the Xerox copies amounts to works contract and the ink used for providing Xerox copies is passed on to the customers and, therefore, its value is liable to tax.
It may be mentioned here that the decision in the case of R.M.D.C. Press Pvt. Ltd. relied upon by the Tribunal is no longer a good law in view of the decision of the Apex Court in the case of Associated Cement Companies Ltd. Vs. C.C., reported in 2002 NTN (Vol. 20)-73 and in view of the decision of the Apex Court in the case of State of Maharashtra Vs. Sarvodaya Printing Press Fine Art Printer.
In view of the above, the order of the Tribunal as well as the order of the first appellate authority are not sustainable and liable to be set aside, so far it deletes the tax on the value of ink and processing materials, namely, chemical, the order of the assessing authority in this regard is restored.
In the result, both the revisions are allowed.
Dated: 8th December, 2010 OP