DY COMMR OF SALESTAX Vs. PARANS DENTAL LABORATORIES

JUDGEMENT

(1.) THE Revenue is the petitioner. THE respondent is an assessee under the Kerala General Sales Tax Act (in short the Act ). THE matter relates to the assessment year 1978-79. THE respondent received a sum of Rs. 36,965/- towards "teeth setting" done to their patients. Notwithstanding the objections of the assessee, the said sum was brought to tax by the Assessing Authority. In appeal, the Appellate Assistant Commissioner held that the amount realised towards teeth setting charges is not a transaction of sale of goods and directed exclusion of the same from the taxable turnover. THE Revenue took up the matter in appeal before the Appellate tribunal. Reliance was placed on the decision in John Mathew Bros. v. State of Kerala (42 STC 140 ). THE appellate Tribunal concurred with the decision of the Appellate Assistant commissioner and held that the amount realised towards teeth setting charges is not a transaction of sale of goods exigible to sales tax. THE Revenue has come up in revision.

(2.) WE beard counsel for the Revenue, Mr. Nambiar. It was contended that the final product, was transferred on undertaking the job of teeth setting, and it cannot be denied that the said product is a sale of the goods. So, it is exigible to sales tax. WE are unable to agree. The respondent-assessee was arranging teeth setting to the patients or customers. What they usually do is to take measurements of the gums of the customers and make the teeth setting. The set manufactured for a particular customer cannot be used by another. The measurement of the gum of each patient will vary. After noticing the above facts, the Appellate Tribunal held that the teeth set prepared by a dentist would be a waste, if the customer, who placed the orders, did not turn up. It cannot and could not be sold to another. It is not a marketable commodity. In the circumstances, it was stated to be only a contract of work and labour and that there was no sale of goods. WE are of the view, that on the analogy of a photographer, dealt with in the decision in the Assistant Sales Tax Officer v. B. C. Kame (30 STC 237), this is essentially a contract to do skilled labour. Moreover, if the teeth prepared by the dentist for a particular customer, was not taken delivery of by him, it would be a waste. In other words, what is manufactured is not marketable goods. That is a very vital factor to decide whether there is a sale of goods. In the light of the above, and for the reasons contained in Para. 3 of the order of the appellate Tribunal, we bold that the Appellate Tribunal was justified in stating that 'teeth setting charges' is not a transaction of sale of goods exigible to levy of sales tax under the Act. No interference is called for with the decision of the appellate Tribunal, dated 8th August 1956. The Tax Revision Case is without merit. It is dismissed in limine. . .