Ramaswami, C.J.

1. In this case the petitioner carries on the business of a professional photographer and is the proprietor of a shop and photographic studio in Patna, For the period from the 1st of January, 1952, to the 31st of March, 1955, there was an assessment or sales tax upon the petitioner by the Superintendent of Sales Tax under Section 13 (5) of the Bihar Sales Tax Act. The petitioner took the matter on appeal before the Deputy Commissioner of Sales Tax, but the appeal was dismissed. The petitioner then moved the Board of Revenue in revision, but the revision application was dismissed subject to certain modifications.

The contention of the petitioner before the Sales Tax authorities was that the sales tax cannot be lawfully levied on finished articles like photographs, and the action of the petitioner in taking photographs of customers and developing and printing the negatives was not tantamount to sale of goods within the meaning of the Bihar Sales Tax Act. The argument was rejected by the Board of Revenue and the revision application of the petitioner was dismissed; Under Section 25(3) of the Bihar Sales Tax Act the Board of Revenue has submitted the following question of law for the opinion of the High Court:

"Whether in the circumstances of the case the petitioner is liable to pay sales tax with regard to sale of photographs of customers taken by him for the purpose of supplying printed copies of photographs to them on payment"

2. On behalf of the petitioner learned Counsel submitted the argument that taking of photographs of customers and the sale of printed copies of the photographs would not, in the circumstances of this case, amount to sale of goods within the meaning of the Indian Sale of Goods Act or the Bihar Sales Tax Act. It was submitted that there was no contract for sale of goods but there was only a con-tract for work and labour in which skill and artistry was involved.

In support of this submission learned Counsel referred to the decision of the English Court of Appeal in Robinson v. Graves (1935) 1 KB 579 In which it was held that the agreement of an artist to paint the portrait of a lady was not a contract for sale of goods but was a contract for work and labour. In my opinion the principle of this case has no application to the present case where the material facts are different. We are concerned in the present case not with a portrait painter who gives personal Services for the production of a work of art.

The petitioner in this case is a professional photographer and the essential feature of his business is production of photographs for sale. The object of the petitioner as a professional photographer is to produce as many pictures as the customer will buy and sell them to him with a view to profit. It is true that the petitioner has to apply his professional skill to the case of each individual and also attempt to secure some aesthetic value. But it is manifest that the petitioner is not engaged merely on an aesthetic or artistic occupation.

The gist of the matter is that the petitioner is practicing the photographic process commercially in order to produce an article which will be bought and produce a commercial profit. In my view, therefore, the essence of the contract is not work and labour but the contract is one for sale of goods within the meaning of the Indian Sale of Goods Act and the Bihar Sales Tax Act. This view is borne out by the decision of the Queens Bench Division in Lee v. Griffin (1861) 30 LJQB 252.

It was held in that case that a contract to make a set of artificial teeth to fit the mouth of the employer is a contract for the sale of a chattel, and therefore within the 17th section of the Statute of frauds, and that a count for work, labour and materials is not sustainable. In the course of his judgment in this case Blackburn, J. pointed out the true distinction between a contract for sale of goods and a contract for work and labour:

"If the contract be such that it will result in the sale of a chattel, the proper form of action if the employer refuses to accept the article when made, would be for not accepting. But if the work and labour be bestowed in such a manner as that the result would not be anything which could properly be said to be the subject of sale, then an action for work and labour is the proper remedy."

Later on he said:

"I do not think that the relative value of the labour and of the materials on which it is bestowed can in any case be the test of what in the cause of action (sic); and that if Benvenuto Cellini bad contracted to execute a work of art for another, much as the value of the skill might exceed that of the materials, the contract would have been the less for the sale of a chattel".

The principles laid down, by Blackburn, J. has been cited with approval in several cases. For instance, in Rex v. Wood Green Profiteering Committee (1920) 89 LJKB 55, Lord Reading, C. J. said as follows:

"The cases of (1861) 30 LJQB 252 and Isaacs v. Hardy, (1884) Cab and El. 287 show that to determine whether or not there has been the sale of an article, the value of the labour, as compared with that of the materials, cannot be taken into account."

3. The principle is that you have to look at the substance of a contract in each case and ascertain if the contract is for the supply of finished goods or whether it is an agreement for the exercise of skill and labour for the production of the particular article and it is only ancillary that some material would pass from the artist to the customer. Applying the test to the circumstances of the present case I hold that the essence of the contract between the petitioner and the customers is the supply of finished goods and there is not a mere agreement for the exercise of skill and labour for the production of the photographs.

On behalf of the petitioner reference was made to the decision of the Exchequer Division in Clay v. Yates (1856) 156 ER 1123 in which it was held that a contract by which the plaintiff, who was a printer, agreed to print for the defendant a second edition of a book was a contract for work and labour and not a contract lor sale of the printed book. But the decision of this case does not appear to me to be authoritative in view of the doubt cast upon it by all the Judges, including Blackburn, J. in the subsequent case of (1861) 30 LJQB 252 to which I have already referred, in which the decision of (1856) 156 ER 1123 was doubted and also distinguished.

The view I have expressed is also supported by the decision of the Calcutta High Court in North Bengal Stores, Ltd. v. Member, Board of Revenue, Bengal 1 STC 157 (Cal) in which it was held that a chemist who dispenses prescriptions of doctors produces goods for sale within the definition of Section 4(5) (a) of the Bengal Finance (Sales Tax) Act (Bengal Act VI of 1941). At page 160 of the report Gentle, J. has stated as follows:

"When customers give prescriptions to a dispensing chemist to be made up, thereby they place orders for the resultant compounds of mixtures to be supplied, and, by accepting to dispense the prescriptions, the chemist agrees to sell to his customers such compounds or mixtures. Dispensing is necessary for the purpose of obtaining the mixtures. Until prescriptions are dispensed and the compounds obtained, the chemist has not got the goods, which his customers have ordered and which he has agreed to sell. The process of dispensing is carried out for the purpose of producing the contract goods. When dispensing has taken place but not before, the chemist has the goods with which to supply his customers and which he has agreed to sell to them. The resultant mixtures, after dispensing prescriptions, are the goods sold by a dispensing chemist to his customers; the process of dispensing is to produce those goods for sale".

4. The same view has been taken by the High Court of Madhya Pradesh in D. Masanda and Co. v. Commr. of Sales Tax where it was held that a photographer can be assessed to sales tax under the provisions of Madhya Bharat Sales Tax Act, 1950, and the photographer is a dealer within the meaning of Section 2(f) of that Act. It was observed in that case that when a customer goes to a photographer for being photographed and for copies of photographs on payment the substance of the contract between him and the photographer is not the performance of skilled services but the supply of finished goods.

A similar view has been expressed by the High Court of Australia in Federal Commr. of Taxation v. Riley, 53 Com W LR 69 where it was held that photographs taken of and supplied to clients for reward in the course, of a photographs business were "goods manufactured" within the meaning of the Sales Tax Assessment Act (No. 11 of 1930-35; and that having regard to the whole process of what is done in the production of the photograph it cannot be regarded as being in the nature of an artistic service of a personal character.

5. For these reasons I hold that, in the curmanstance of this case, the petitioner is liable to pay sales tax with regard to sale of photographs of Customers taken by him for the purpose of supplying printed copies of photographs to them on payment. I would accordingly answer the question of law referred by the Board of Revenue against the petitioner and in favour of the State of Bihar. The petitioner must pay the costs of this reference. Hearing fee Rs. 100/-.

Kanhaiya Singh, J.

6. I agree.