TaxTMI 
TaxTMI 
2015 (5) TMI 777
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....rdance with the provisions of the Maharashtra Municipal Corporations Act, 1949 and the Rules framed thereunder ? 2. The Petitioner Company is conducting a business of providing preprinted Sodexo Meal Vouchers (For short "the said Vouchers"). The case made out in the Petitions is that the Petitioner Company enters into a contract with its customers for issuing the said vouchers. The customers of the Petitioner in turn distribute the said vouchers to their employees who are the actual users of the said vouchers. It is stated that the Petitioner Company has contracts with various affiliates such as restaurants, departmental stores, shops, etc. Under the affiliate contracts, the affiliates are required to provide food and other items on presentation of the said vouchers by the users. The affiliates are bound to honour vouchers once presented by the users. The affiliates after receiving the said vouchers, present the same to the Petitioner Company. On receipt of the vouchers, the Petitioner reimburses the affiliates after deducting service charges. 3. The case made out in the Petition is that the Petitioner Company has obtained certificate of authorization from the Reserve Bank of....
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....ision of this Court in the case of State Bank of India v. Neela Ashok Naik and Another AIR 2000 Bom. 151 which holds that the fixed deposit receipts are the goods. He submitted that the fixed deposit receipts by themselves are capable of abstraction, consumption and sale, but the said vouchers do not possess such characteristics. He relied upon a decision of the Apex Court in the case of TATA Consultancy Services v. State of Andhra Pradesh (2005)1 SCC 308. He submitted that the said vouchers do not satisfy the tests laid down in Paragraph 81 of the said decision of the Apex Court. He, therefore, urged that neither the LBT nor the Octroi is payable on the said vouchers. 5. The learned counsel appearing for the Pune Municipal Corporation submitted that as far as the Octroi is concerned, an efficacious remedy under Section 406 of the Municipal Corporations Act is available. He relied upon a decision of the Division Bench in the case of Maharashtra Chamber of Commerce Industries & Agriculture & Others v. State of Maharashtra, through its Secretary & Others 2004(1) Bom.C.R. 137 and Small Scale Interpreneurs Association and Others v. State of Maharashtra and Others 2007(3) Bom.C.R. 49....
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....ined to mean an organization to which the Petitioner issues vouchers and the "user" is defined to mean an employee of the customer who is in possession of the valid vouchers. The terms and conditions provide that the affiliate establishment shall deliver to a user against the value of the vouchers, ready to eat food and beverages. It is stated that the affiliate establishment has agreed to accept the said vouchers at any time whenever presented by the user as a payment of the price of only ready to eat food and beverages to be served to the user and for no other purposes. The terms and conditions provide that the Petitioner shall redeem all the valid vouchers returned to it by the affiliated establishments by making a payment to the affiliated establishment the value of the vouchers after deducting therefrom the service charges. Thus, the scheme is that the Petitioner prints the said paper vouchers and sells it to the customers. The customers, in turn, provide the said vouchers to its employees. On presentation of the said vouchers in the restaurants or eating places or outlets, the ready to eat food items and beverages of the face value printed on the said vouchers is delivered to....
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....ctroi on the goods brought within the Municipal limits, there must be proof of the fact that the goods got consumed completely within the Municipal limits or were used for an indefinite period in such a way that they come to rest finally and permanently within the Municipal limits or sold within the said limits." (Emphasis added) 12. The said vouchers are capable of being sold by the Petitioner after they are brought into the limits of the City. In fact, going by the scheme narrated above, the said vouchers are sold by the Petitioner to its customers for value. The customers give the said vouchers to its employees called as users. On presentation of the said vouchers, the users get foods and beverages from the affiliated establishments and the affiliated establishments on presentation of the said vouchers to the Petitioner get the face value of the said vouchers after deducting the service charges. Thus, the said vouchers are capable of being used or sold within the limits of a City. 13. Now coming back to the question whether the said vouchers can be said to be the goods, the learned senior counsel appearing for the Petitioner urged that the vouchers are not capable of co....
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....movable articles will be the goods for the purposes of the Act by residuary clause 2(22)(e). Whether movable article comes as a part of a baggage, or is imported into the country by any other manner, for the purpose of the Customs Act, the provision of Section 12 would be attracted. Any media whether in the form of books or computer disks or cassettes which contain information technology or ideas would necessarily be regarded as goods under the aforesaid provisions of the Customs Act. These items are moveable goods and would be covered by Section 2(22)(e) of the Customs Act." 15. Thereafter, he invited our attention to the decision of the Apex Court in the case of Sunrise Associates. In the said decision, the issue before the Apex Court was whether the lottery tickets were the goods for the purposes of sales tax laws. The Apex Court observed that the word "goods" for the purposes of sales tax has been uniformly defined meaning thereby all types of movable property. The learned counsel relied upon what is held in Paragraphs 43, 45, 47 and 48 of the said decision which read thus: "43. The sale of a ticket does not necessarily involve the sale of goods. For example the purchase ....
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....rt in H. Anraj do not support the sub division of the chance to win into a further distinct right to participate. The Court sought to draw the distinction between the chance to win and the right to participate by describing the former as a right 'in future' and the latter as "in praesenti". Both the rights are in fact 'in future'. In any event the distinction is immaterial to the question as to whether the subject matter of the transfer is an actionable claim, since an actionable claim may be existent, accruing, conditional or contingent. 48. Even if the right to participate is assumed to be a separate right, there is no sale of goods within the meaning of sales tax statutes when that right is transferred. When H. Anraj said that the right to participate was a beneficial interest in moveable property, it did not define what that moveable property was. The draw could not and was not suggested to be the moveable property. The only object of the right to participate would be to win the prize. The transfer of the right would thus be of a beneficial interest in movable property not in possession. By this reasoning also a right to participate in a lottery is an actiona....
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.... sense that they are not extinguished by their user. They are not delivered, stored or possessed. Nor are they marketable. They are merely the medium of communication. What is transmitted is not an electromagnetic wave but the signal through such means. The signals are generated by the subscribers themselves. In telecommunication what is transmitted is the message by means of the telegraph. No part of the telegraph itself is transferable or deliverable to the subscribers." 19. The test applied by the Apex Court is that the electromagnetic waves are neither abstracted nor the same are consumed in the sense that the same are never extinguished by the user as the same cannot be delivered, stored or possessed. It was held that the same are not marketable. It was held that the electromagnetic wave is the medium of communication. 20. In this case, we are dealing with the printed paper vouchers. As pointed out earlier, the printed vouchers are sold to the customers for the value which is printed on the said vouchers. In turn, the customers hand over them to a user who uses the same for acquiring food and beverages. Even going by the scheme of the Petitioner, the said vouchers are so....