Commissioned sculpture is work and labour, not sale of goods, where artistic skill is the dominant element.

A sculptor who prepares statues and busts to specific commission is engaged in a contract of work and labour, not a contract of sale of goods, where the substance of the bargain is the exercise of artistic skill and specialised creative effort. The use of marble or bronze does not change the legal character of the transaction when the dominant element is the commissioned artistic service and the finished work is produced to order. On that basis, the activity does not amount to buying and selling goods in the course of business, and the sculptor is not a dealer within the meaning of the Bombay Sales Tax Act, 1959.

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Issues: Whether a sculptor who prepares statues and busts to specific order is engaged in a contract of work and labour rather than a contract of sale of goods, and consequently whether such sculptor is a dealer under the Bombay Sales Tax Act, 1959.

Analysis: The decisive factor was the true nature of the transaction. Where a person commissions a sculptor to create a statue or bust, the substance of the bargain is the exercise of artistic skill and labour to produce a commissioned work, not the transfer of the material used in making it. The Court treated the position as indistinguishable in principle from that of a commercial artist or painter, and accepted that the finished article is the result of specialised creative effort. The fact that marble or bronze is used does not convert the transaction into a sale of goods when the dominant element is the commissioned artistic service. On that footing, the activity did not amount to buying and selling goods in the course of business.

Conclusion: The contracts were contracts of work and labour, not contracts of sale of goods, and the sculptor was not a dealer within the meaning of the Act.

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