TaxTMI 
TaxTMI 
2019 (3) TMI 709
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....thers, Faizabad (supra), the definition of term "arms" as prescribed under Section 2(c) of the Arms Act, 1959 (hereinafter referred to as "Act, 1959") and the judgments of Kerala High Court and Madhya Pradesh High Court on the same print. The Kerala High Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Versus K. Mohammed reported in [1989] 74 STC 210 while disagreeing the judgment of Allahabad High Court in the case of M/s Agarwal Brothers, Faizabad (supra) arrived at a conclusion that the phrase "arms and ammunition" will not cover airguns and pellets. The Madhya Pradesh High Court in Commissioner of Sales Tax, M.P. Versus Pilababu Vishwanath Rao, MCC No. 113 of 1986; decided on 01.03.1990 after taking note of judgment in M/s Agarwal Brothers, Faizabad (supra) held that the law laid down by Allahabad High Court in the case of M/s Agarwal Brothers, Faizabad (supra) is not correct. Looking to the conflicting views and by taking into consideration the argument advanced on behalf of learned counsel for the revisionpetitioner, learned Single Bench considered it appropriate to refer the matter for adjudication by a larger Bench with following questions:....
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.... The goods named or described in column (2) of Schedule II, at every point of sale and at the rate of four per cent. The goods named or described in column (2) of Schedule IV are subject to tax at the point of sale mentioned in column (3) and at the rate of tax mentioned in column (4) of Schedule against such goods. The applicable tax rate for Schedule IV for the goods shown in entry 2 Schedule IV is 21 per cent. Neither the term "toy" nor "arms" and "ammunition" are defined under the Act, 2008. The term "arms" is defined under the Arms Act, 1959 and Section 2(c) as under: " 2.(c) "arms" means articles of any description designed or adapted as weapons for offences, or defence, and includes firearms, sharpedged and other deadly weapons, and parts of, and machinery for manufacturing arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons;" No definition of "ammunition" is given even under the Act, 1959. At the threshold, we would like to state that the definition of "arms" as given under the....
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....hese develop about half the muzzle velocity of light firearms, are accurate enough for marksmanship training at ranges up to 100 feet (30 metres), and can kill small game. Darts with tranquilizing drugs may be fired to immobilize animals for handling or capture. An air gun projectile seldom carries beyond 100 yards (90 metres). Gas guns are comparable in power and accuracy to air guns but are powered by a reservoir or cartridge of liquid carbon dioxide, of which a portion escapes as an expanding gas when the trigger is pulled. Major ref. 8:501d shooting competition event and rules 16:707c. This definition too would not be of much use as that discloses mechanics of the airgun but not the purpose and use for its designing and manufacturing and further as to whether that can be treated as a toy or weapon. The air-guns and compressed airguns are described in more detail in the New Encyclopedia Britannica in volume 8 and, according to that, the guns resembles firearms but using compressed air to project either a single bullet or a charge of shot relating to short distances. The pellet of airgun that hits soft tissues of a human being, such as eyes, can cause tragic result....
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....n with weapons that would be legal in the United Kingdom. However, guns can be modified, increasing the velocity of the pellet. In the case of Buchanan, the regular oiling of the barrel was felt to have produced the effect of "dieseling," where the addition of oil or diesel fuel is used so that it spontaneously ignites and increases muzzle velocity. We have also encountered a fatal case where an air rifle was modified and used with home made powder ammunition, turning the gun into a home made firearm, or so called "zip" gun. The majority of fatal incidents reported have involved children under the age of 16, with boys outnumbering girls. The head is the most common part of the body penetrated. The entrance site may be through the eye, the temple, or the forehead, with the pellet then penetrating the brain. Pellets penetrating the chest have killed by penetrating the heart. In one case the pellet penetrated the aorta, the child dying after five days of monitoring. At necropsy the pellet was found to have transfixed the intrapericardial aorta. In adults the thicker skull makes the temple and the eye the only sites that can be penetrated by an airgun pellet fired from a norma....
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....d. A retained airgun pellet may raise concerns about lead poisoning. Of 11 cases of retained orbital pellets described by Jacobs and Morgan, none had a raised serum lead concentration and it seems unlikely there is a significant risk of lead poisoning from a retained airgun pellet. Children are the most frequent victims of airgun injuries and fatalities, and boys far outnumber girls in all the reported fatal and nonfatal cases. Lack of appropriate supervision is a common feature, as the assailant is most often another child. Of the five cases presented here, two were suicides and the other three accidents. Accidents far outweigh other reasons for injury and death. However, deliberately inflicted injury does occur, as evidenced by the case of Green and Good and one of the cases reported by DiMaio, where the deaths were considered homicides. Airguns as a weapon of suicide are unusual, but cases have been recorded, as well as unsuccessful attempts. The adult skull is vulnerable to penetration by airgun pellets, and if the temple region is chosen as the entry site, suicide may be achieved. In the case of Jacob and colleagues, the temple was the site of entry, as was one of the....
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....entre of gravity is well forward from the mid point. Hence, these slugs are not subject to the tendency of tumbling. This is an important factor in a projectile of low energy contributing to its capability to penetrate a target (Ravindra,1999). There are three basic power systems for airpowered guns. They are pneumatic type, spring air compression system, and gas compression type (Di Maio, 1985). Death from an airpowered gun is rare. A review of English language literature reveals only a few deaths. Most involved children (Green, 1982). In most of the cases the point of entry was in the head." The authors after examining applicable mechanism design and use of airguns concluded as follows: " Air guns, although considered as toys, can cause injuries ranging from trivial to fatal. The type and severity of injuries depend on the type of air gun used, the range at which it is fired, and the anatomical site at which the pellet hits. A fair degree of comparison between injuries by hand guns and air guns can be made by careful examination of the entry wound. Lack of care, supervision and unstructured use are the risk factors contributing to the incide....
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....d according to its ordinary meaning in common parlance. According to the popular sense and on going through the other material available, the Court held that "arms" and "ammunition" will not take airguns and pellets in its ambit. The Madhya Pradesh High Court in Commissioner of Sales Tax, M.P. Versus Pilababu Vishwanath Rao (supra) accepted the reasoning given in the case of Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Versus K. Mohammed (supra). A Division Bench of Delhi High Court in People for Animals Versus Union of India and others reported in 2011 SCC Online Del 2359 dealt with the entire issue in detail and held as under: " An air gun/ air rifle/ air pistols uses the energy or force produced from compressed air or other gas for discharging of the pellet or projectile. Normally these air guns, etc. use metal projectiles and the ones which use plastic projectiles are Air (soft) Guns. General internet search on air guns reveals that these are distinguished from firearms, which burn a propellant in order to shoot the projectile but under the definition of firearms, as provided under the Act and as extracted above, it is clear that the air guns/....