By TIOL News Service

ALLAHABAD, FEB 05, 2019: THE ISSUE BEFORE THE BENCH IS - Whether the definition of 'arms' as per the Arms Act 1959, is applicable to determine classification of air-guns or air-pistols under the UPVAT Act 2008, considering that the former legislation was enacted with a specific objective & background, which is inapplicable upon the latter Act. NO IS THE ANSWER.

The High Court also held that such air-guns & air-pistols are not classifiable as toys, where they resemble firearms, are capable of causing lethal injury, are pre-dominantly used to hunt birds & small animals and are advised to be used under expert supervision. Thus it held that they are more appropriately covered under taxing entry of arms and ammunition , occurring in Serial No 2 of Schedule IV of the UPVAT Act, 2008.

Facts of the case

THE issue at hand is whether 'air gun' and 'air pistol' can be taxed under Entry 124 of Schedule II as 'toys excluding electronic toys' or else under heading of 'arms and ammunition' under Entry 2 of Schedule IV. When this issue first arose before the Single Judge of the High Court, the same was referred to the larger bench. It was also seen that a similar question had been answered by the Single Bench of the same court in M/s Agarwal Brothers, Faizabad Versus Commissioner of Sales Tax, Uttar Pradesh wherein it was held that air-gun is capable to inflict bodily injuries & so the same is covered by a Notification dated March 23, 1971 regarding arms and ammunitions.

On hearing the revision petition, the High Court held that,

++ no definition of "ammunition" is given even under the Act, 1959. At the threshold, it is stated that the definition of "arms" as given under the Act, 1959 may be useful to examine the purpose and use of designing and manufacturing air-guns to a limited extent and that cannot be the sole criteria to determine nature of the article concern, in view of settled principle of interpretation given in one statute which is enacted with a specific object, purpose and scheme cannot be applied mechanically to another statute with different objects, purpose and scheme. The Arms Act, 1959 was enacted by the Parliament to regulate classification of arms by classifying the different equipment and items, which were declared as arms in colonial era under the Arms Act, 1878. The Act, 1878 was intended to disarm the entire country. The Parliament, after independence noticed that the Arms Act and the rules made thereunder, if allowed to be continued, it would be different for law abiding citizens to possess firearms for self defence vis a vis terrorist, dacoits, dacoits gangs, anti-social and anti-national elements who are using those arms. The Legislature also intended to bring out several sharp-edged items from the ambit of "arms" which are essentially domestic equipment. The object of the Act, 1959 being absolutely different than the Act, 2008, it would not be appropriate to accept the definition of arms given therein ipse dixit in the instant matter and it would also be appropriate to look into the definition of "air-gun", "air pistol" and "pellet guns" as available in different dictionaries and the literature relevant;

++ perusal of the entire literature available and the judgments referred by different High Courts, makes it clear that the air-guns or air pistols are not simple toys or a pure sports equipment. These guns though are not firearm but are capable of causing bodily injuries and those in certain circumstances can be fatal too. These guns/pistols are also frequently used for hunting purposes. Looking to the mechanism used in these equipments, experts have advised cautious use of these articles. In popular sense too, the air-guns are not understood as sports equipment but as a gun frequently used for hunting birds and other small animals. True it is, there is no need to have license to possess an air-gun but merely, on that count, it cannot be brought out from the term "arms". There may be several other articles too which are deadly weapon and falls within the definition of "arms" but there is no need to have license to possess those. It would also be appropriate to state that several experts have also opined to make it mandatory to have a license for keeping air-gun/ pistol;

++ being not a toy and being an equipment that can be used to cause a lethal injury, which is also in use for causing bodily injuries and also being required to be used with all necessary caution and also being advised to be used under supervision of expert and also being having absolute resembles that of firearm and also having a mechanism of spreading the projectiles with force that may cause hurt, the air-gun/ air pistol is an arm and, therefore, it is required to be considered as an item under entry 2 Schedule-IV appended with the Act, 2008. the law laid down by this Court in M/s Agarwal Brothers, Faizabad Versus Commissioner of Sales Tax, Uttar Pradesh is a good law and air-gun/ air pistol does not fall in the entry "toy excluding electronic toys". The air-gun/ air pistol is an item covered by taxing entry "arms and ammunition" occurring in Schedule-IV at Sr. No. 2 of the Act, 2008.

(See 2019-TIOL-513-HC-ALL-VAT)