TMI Blog1999 (9) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... n or film is received developing and processing of the film is done under controlled temperature, chemical involvement and time-limit. The quality of print is the result of technical knowledge and expertise. After the film is exposed it passes through four chemical stages. (a) Developer, where the latest image or immersion is developed; (b) Bleach, where the film is colour dried; (c) Fixture, where colour dried film is permanently fixed with the colour; and (d) Stabiliser, where the image is permanently imposed in a particular position. 3.. The film is washed, dried and the chemicals used are diffused with emulsion creating light and shade on the negative of the film. The dried negative is taken from the printer processing machine for printing and at that point the colour and density of the negative is examined. The prints on placed before the paper processor undergo further two stages requiring precise timing and accurate temperature. Here, the chemicals used in the course of processing gets diffused on deep emulsion for obtaining the best finish and obtaining the colours on the print which is later washed and dried and subsequently cut into proper sizes. It is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of goods. The contract on the contrary is for use of skill and labour by the photographer to bring about a desired result. The occupation of a photographer, except in so far as he sells the goods purchased by him, in our opinion, is essentially one of skill and labour. A good photograph reveals not only the aesthetic sense and artistic faculty of the photographer, but it also reflects his skill and labour. A good photograph in most cases is indeed a thing of beauty. It not only seeks to mirror and portray a scene from actual life, but it also catches and preserves for the future what belongs to and is a part of the fleeting moment. The ravage brought about by the passage of time, the decay and the ageing process which inevitably set in as the years roll by leave what is preserved in the photograph unaffected. It is no wonder that an old photograph revives nostalgic memories of days no more, but to which we look back through the mist of time with fondness even though such fondness has a tinge of sadness. We, therefore, find no cogent ground to disagree with the High Court in so far as it has decided against the revenue and has held the contract to be one for work and labour." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he value, utility or beauty of the original goods. The negative film, being the original goods, no improvement or enhancement in its value, utility or beauty is effected by the process or treatment employed thereto by a photographer. The negative remains as before. Therefore, the activity of a photographer does not constitute a works contract within the meaning of section 2(b)(iv), where the photographer produces a final photograph or enlargement out of a negative supplied by the customer. Since the negative remained intact at the end of the entire transaction and nothing was added or employed to it to increase its value, utility or beauty, there could be no works contract." 8.. It is submitted that the 46th Constitutional Amendment would be applicable if the transaction is of sale of goods or the goods are involved in the execution of works contract and there must be passing of the property during the execution of contract. In the case of work of an artist it is only the quality of imagination and taste. The film roll belongs to the customer and is taken back and after developing the film roll it continues to be film roll without there being any addition, accretion or accessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that. In our opinion, the principle upon which the High Court relied, is not applicable in case of transactions of printing of question papers. Question papers as such, after being printed are neither available commercially nor available to any community-commercial or otherwise, save under specific circumstances for the candidates appearing at a particular time in an examination. Mr. Mohan also drew our attention to the decision of the Andhra Pradesh High Court in State of Andhra Pradesh v. Sri Krishna Power Press [1960] 11 STC 498. There, the court reiterated that a transaction which results in the transfer of property in finished goods to another person cannot be described as a works contract. It was further held that where the assessee press itself purchased stationery and did printing work upon it according to the orders of individual customers and supplied the printed stationery to the customers at an agreed price the transaction was sales liable to sales tax and not works contract. The fact that the goods prepared by the assessee could not be exhibited for sale to the general public is not decisive of the issue." 13.. After taking into consideration the rival contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a decisive test for dutiability. It only means "saleable" or "suitable for sale". It need not be in fact, "marketed". The article should be, capable of being sold or being sold to consumers in the market, as it is, without anything more. 17.. In Bavens v. Union of India [1995] 97 STC 161 Kerala High Court has taken the view that taking the photograph of the customer, developing and supplying the print to them involves skill and talent and the photographs have no marketable value. It is not a works contract. Developing exposed films to customers and supplying the prints or taking prints from customer's negatives involves processing. The element of skill is not important and it amounts to works contract. 18.. In Deputy Commissioner of Sales Tax (Revenue) v. Sreeni Printers [1987] 67 STC 279 (Ker) it was found that for making photo block, the block-maker has first to take a photograph, develop and enlarge it to the desired size and thereafter it has to be engraved on to a zinc plate with the aid of some processing chemicals. The skill and labour involved in making the block was considered more than what is required by a photographer to take a photograph. Compared to the degree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas the supply of fuse oil is concerned it was held not amounting to sale. This judgment is with regard Reported in [1999] 114 STC 424 (Kar). to photocopiers and it does not require much of the skill. This judgment has no application because the activity was considered to be a sale. 25.. The Full Bench of the Punjab and Haryana High Court in Thomson Press (India) Ltd. v. State of Haryana [1996] 100 STC 417 it was held that printing of lottery tickets which involve not only expertise but also confidentiality, does not amount to sale and use of paper and ink is only incidental and tickets cannot be sold to any person in the market. 26.. In Everest Copiers v. State of Tamil Nadu [1996] 103 STC 360 (SC) the decision given in the case of B. Girija v. State of Karnataka [1984] 56 STC 297 (Kar) was upheld where it was observed that: "Where the main object of the work undertaken by the person to whom the price is paid is not the transfer of a chattel as a chattel, the contract is one of work and labour. The main object of the work undertaken by the operator of a photocopier or xerox machine is not the transfer of the paper upon which the copy is produced; it is to duplicate or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence and specialised knowledge in this respect. If exposed film is not properly developed, the negative obtained therefrom would not give proper and positive prints. In order to get good positive prints, retouching of the negatives is done. This again can be done by an expert of this line. It cannot be done by any or every person. It involves its own technique. Obtaining positive prints from the negatives involves specialised technique. Proper intensity of light and duration of the exposure of the negative film is required to obtain a good positive print. 9.. A customer going to a photographer for getting his exposed film developed does not ask to purchase the negative but asks to develop exposed film and to give him the negative obtained therefrom. Similarly, a customer approaching a photographer with his negative for obtaining positive prints does not ask for purchase of positive prints but requests for giving him positive prints from his negative. Both of them, i.e., exposed film and negative are not marketable commodities. They have no market value for other persons. While taking out positive prints from the negative with the help of photo papers and chemicals, there is no ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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