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TMI Blog1962 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of diagnosis as well as treatment of the patients and has been imported for that purpose alone. X-ray films on which an image of the inside body is received are used only for the aforesaid purpose and are not used for taking ordinary photographs. The petitioner was informed by respondent No. 3 by means of a letter dated 27th November, 1959, that the X-ray equipment being electro-medical equipment was to be taxed at 4 per cent. of the turnover for the purpose of sales tax but respondents Nos. 1 and 2, namely, the Commissioner of Sales Tax and the Assistant Commissioner of Sales Tax had issued a circular letter to the effect that X-ray equipment did not fall under the category of electro-medical equipment but it was included in the category of photo goods which being luxury items were being taxed at the rate of 7 per cent. Accordingly the X-ray equipment were also proposed to be taxed at 7 per cent. under the Bengal Finance (Sales Tax) Act, 1941, as extended to Delhi (hereinafter to be referred to as the Act). It was suggested in the aforesaid letter that the petitioner should approach respondent No. 1 to persuade him to impose the tax at the rate of 4 per cent. and not 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect images of bones etc. on screens and glass plates and the films used in such apparatus will be covered by item No. 6 of the Schedule of luxury goods appended to the Bengal Finance (Sales Tax) Act, 1941, as extended to Delhi, and will attract sales tax at 7 per cent." The present petition was filed im- mediately afterwards. Section 5 of the Act provides for the rate of tax payable by a dealer thus- "(a) in the case of taxable turnover in respect of the goods speci- fied in the First Schedule, at the rate of seven naye paise in the rupee; (b) in the case of taxable turnover in respect of the goods specified in the Third Schedule, at the rate of two naye paise in the rupee; (c) in the case of taxable turnover in respect of any other goods, at the rate of four naye paise in the rupee: * * * *." The First Schedule contains the following 15 items: "1. Motor vehicles, including chassis of motor vehicles, motor tyres and tubes and spare parts of motor vehicles. 2.. Motor cycles and cycle combinations, motor scooters, motorettes and tyres, tubes and spare parts of motor cycles, motor scooters, motorettes. 3.. Refrigerators and air-conditioning plants and component parts thereof. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra has a dark chamber or box into which the image of external objects may be projected by means of a lens or other image-forming device, while the machines in question have neither a dark chamber nor a lens or other image-forming device; (2) a photographic camera uses visible light, i.e., sunlight or other artificial light visible to the eye, while the rays used in the machines in question are invisible rays of light commonly known as X-rays; (3) in photographic cameras light is reflected from the object to be photographed, while the radiographic image is recorded on a sensitive plate after X-rays have passed through the body in question, such rays having been stopped wholly or partially by certain parts of the body; (4) the X-ray tube essential to these machines and the generators of the special kind of light rays are absent in the case of ordinary photographic cameras, and (5) the machines in question, though they are capable of taking radiographs may be and generally are used for other purposes also, for instance, fluoroscopic i.e., for viewing internal organs or parts of the human bodies and therapeutic, i.e., for purposes of effecting therapy in cases of certain illnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in larger quantities and the duty also has to be less on them so that it may be possible to avail of their use in the interest of the health and well-being of the citizens of this country; whereas photo- graphic goods like cameras etc., are by no means essential for medical or other reasons and naturally more duty is imposed on them and the quantity, of which import is allowed, is also more restricted. I am satisfied, therefore, that X-ray apparatus and the films etc. which are used therewith cannot fall within item No. 6 of the First Schedule of the Act. They would fall under clause (c) of section 5(1) for which the rate would be 4 naye Paise in the rupee and that is the rate which, according to the petitioner, was the correct rate at which sales tax was payable on these goods. The main hurdle which is sought to be raised in the nature of relief being granted to the petitioner is that the sales tax is levied on a dealer and is payable by him and the petitioner being a purchaser or a consumer cannot maintain the present petition under Article 226. It is further maintained that even if the dealer had filed the present peti- tion, it would have been liable to dismissal on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son to seek to enforce the rights of another except where the law allowed him to do so. The following observations at page 53 may be referred to: "It is settled law that in order to redress a wrong done to the com- pany, the action should prima facie be brought by the company itself. It cannot be said that this course is not possible in the circumstances of the present case. As the law is alleged to be unconstitutional, it is open to the old directors of the company who have been ousted from their position by reason of the enactment to maintain that they are directors still in the eye of law, and on that footing the majority of shareholders can also assert the rights of the company as such." In the later decision in Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd. A.I.R. 1954 S.C. 119., it was pointed out that in the earlier decision the Court was influenced considerably by the fact that a soli- tary shareholder was trying to enforce the company's fundamental right in the exercise of its jurisdiction under Article 32 and that he could not do so unless his own fundamental right under Article 31(2) had been infringed. A further distinction was sought to be made by Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch that the dealer is more or less a collecting agent from the purchaser as would be implicit in the language employed in section 10A. Be that as it may the fact remains that in the present case the Sales Tax Authorities recognised the fact that the party who would be directly affected and consequently aggrieved would be the petitioner who would have to pay the tax from his own pocket and not the dealer who has been made responsible for payment of the tax under the Act. In this view of the matter it cannot but be held that the petitioner is aggrieved by being forced to make payment in respect of a tax at a rate at which that tax cannot be legally levied. As he cannot resort to any other remedy, there is no reason or justification for declining to afford him relief in exercise of the extra- ordinary powers conferred by Article 226 of the Constitution. In Kavalappara Kottarathil Kochunni v. State of MadrasA.I.R. 1959 S.C. 725., it has been ob- served by S.R. Das, C.J., that it appears to be well established that the Supreme Court's powers under Article 32 are wide enough to make even a declaratory order where that is the proper relief to be given to the aggrieved party. In that case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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