Printing if religious picture not used as calendars exempt from tax

COMMISSIONER of VAT, DELHI in the case of M/s Om Decals Pvt. Ltd. vide order no. 63/CDVAT/2005 dated 28th December 2005, determined 

Printing of religious picture not used as calendars is covered under Entry No. 45 of First Schedule of DVAT. Therefore exempt from tax.

In his opinion that the religious pictures printed on paper provided they are not used as calendars fall within the ambit of Entry No. 45 of the first schedule of the DVAT Act.

 

BEFORE SHRI R.K. VERMA, COMMISSIONER, VAT : DELHI 

No.63/CDVAT/2005
Date of Order: 28.12.05

M/s Om Decals Pvt. Ltd.
984, Gali Jogian,
Najafgarh,
New Delhi-110042

ORDER

Present for the Applicant              :        Shri R.N. Sharma, CA
Present for the Department          :        Shri V.K. Kandpal, DR

The above named applicant has filed the present application u/s 84 of the Delhi Value Added Tax Act, 2004 for determination of the undermentioned question.

Whether printing of religious pictures not used as calendars is covered under Entry No. 45 of the first schedule of the Delhi Value Added Tax Act?

The application has been moved in the prescribed format DVAT-42 and a requisite fee of Rs. 500/- has been paid by pay order No. 482713 dated 07/09/05.

The Counsel for the dealer deposed that the dealer deals in printing of sheets of God/religious pictures along with other pictures. A sample sheet of pictures printed by him has been enclosed. Since the religious/God pictures are printed on paper, this item should be covered under Entry No. 45 of the first schedule of the DVAT Act i.e. religious pictures not used as calendars and should therefore be exempt from levy of tax. Also they are not being used as calendars.

The (Departmental Representative) DR submitted that as per sample, the printing of religious pictures appears to have been on papers and in case they are not used as calendars this may be covered under Entry No. 45 of the first schedule of DVAT Act, 2004.

I have heard the submission advanced by both the parties before this Court as well as gone through the application filed. Sample of religious pictures produced by the applicant for perusal of this Court has also been taken into account. The relevant entry No. 45 of the first schedule of the DVAT Act, 2004 which reads as “Religious pictures not for use as calendars” has also been seen. On giving due consideration to all the above aspects, this Court is of the opinion that the religious pictures printed on paper provided they are not used as calendars fall within the ambit of Entry No. 45 of the first schedule of the DVAT Act. It is determined accordingly.

(R.K. Verma)
Commissioner, VAT, Delhi

No. 45                                                                                       Dated: 30/12/05

Copy to:
1. Applicant
2. STO (Policy)
3. Bar Association
4. Guard File

(R.K. Verma)
Commissioner, VAT, Delhi

 

 

Copy of Order No:- 58/CDVAT/2005

 

 

Nuts, Bolts, Screws, Fasteners are taxable at 4

COMMISSIONER of VAT, DELHI in the case of M/s Indian Motor Parts & Accessories Ltd. vide order no. 68/CDVAT/2005 dated 19th December 2005, determined Nuts, Bolts, Screws, Fasteners are covered under Entry No. 91 of Third Schedule of DVAT & taxable @ 4%. Continue reading “Nuts, Bolts, Screws, Fasteners are taxable at 4”

Transfer of Iron and Steel taxable at the rate of 4

COMMISSIONER of VAT, DELHI in the case of M/s. Larsen & Toubro Ltd. vide order no. 58/CDVAT/2005 dated 19th December 2005, Continue reading “Transfer of Iron and Steel taxable at the rate of 4”

Hard Board, MDF and Laminated sheets are general items taxable at 12.5

COMMISSIONER of VAT, DELHI in the case of M/s. Associated Traders vide order no. 43/CDVAT/2005 dated 14th February 2005, determined Hard Board, MDF and Laminated sheets are taxable @ 12.5% and not covered by Entry no. 169 of Third Schedule taxable @ 12.5%.
Continue reading “Hard Board, MDF and Laminated sheets are general items taxable at 12.5”

Taxability of Religious pictures printed on metallic foils

COMMISSIONER of VAT, DELHI in the case of M/s Divine International vide order number:- 64/CDVAT/2005 dated 14 December, 2005, determined the taxability of religious/god picture printed on metallic foils. Continue reading “Taxability of Religious pictures printed on metallic foils”

Ferrite Core to be Taxable at 4

The  applicant  dealer  is  an  authorized  dealer  of  Ferrite  Core in Delhi.  The  dealer  gets  goods  from  M/s.  EPCOS  Ferrites  Pvt.  Ltd.,  West Bengal  and  makes  local  sales.  At  present  they  are  charging  VAT  at  the rate of 4%. The Counsel for the dealer submitted sample of the material to be determined. Also submitted extracts from custom tariff – import policy and Ferrites Soft-Magnetic Material Data Book 1993-94 issued by Central Electronics Limited. The learned Counsel for applicant contested that the item is magnet in itself and is used in telephones, computers etc and is covered under item 41A (xxix) of the Third Schedule of DVAT Act.

 Ferrite-Core

The Court has issued order that Ferrite Core is actually a magnet and  agree  with  the  contentions  of  the  Counsel  for  the  dealer  that  it  is  covered  under  the  item  41A  (xxix)  “Permanent  magnets  and  articles” of the  Third  Schedule  of  the  DVAT  Act.  Therefore,  tax  on  the  sale  of  this  items  will  be  at  the  rate  of  4%.

 

BEFORE SHRI R.K. VERMA, COMMISSIONER, VAT : DELHI

No. 52/CDVAT/2005
Date of Order : 14.12.05

Hob Nob Electronics Pvt. Ltd.
IX/3195, Gurudwara Gali No.5,
Gandhi Nagar, Delhi.

ORDER

Present for the Applicant           :        Sh. R.K. Shukla, CA
Present for the Department       :        Sh. V.K. Kandpal, DR

 

The above named applicant has moved his application for determination of the undermentioned question u/s 84 of Delhi Value Added Tax Act, 2004.

The determination of rate of tax on Ferrite Core (Magnetic core). The application for determination has been preferred in the prescribed format DVAT 42 and a requisite fee of Rs. 500/- paid vide Bankers Cheque No. 414654 dated 04/08/05.

The applicant dealer is an authorized dealer of Ferrite Core in Delhi. The dealer gets goods from M/s. EPCOS Ferrites Pvt. Ltd., West Bengal and makes local sales. At present they are charging VAT at the rate of 4%. The Counsel for the dealer submitted sample of the material to be determined. Also submitted extracts from custom tariff – import policy and Ferrites Soft-Magnetic Material Data Book 1993-94 issued by Central Electronics Limited.

The learned Counsel for applicant contested that the item is magnet in itself and is used in telephones, computers etc and is covered under item 41A (xxix) of the Third Schedule of DVAT Act.

The DR submitted that the item in question is of specific use and cannot be covered under Third Schedule.

I have heard the arguments advanced by both the parties before this Court as well as gone through the application filed, samples of item the Ferrite Core and also the details contained in the documents submitted by the applicant. I am of the opinion that Ferrite Core is actually a magnet and agree with the contentions of the Counsel for the dealer that it is covered under the item 41A (xxix) “Permanent magnets and articles” of the Third Schedule of the DVAT Act. Therefore, tax on the sale of this items will be at the rate of 4%. Announced in the open Court in the presence of the Counsel for both the parties.

 

(R.K. Verma)
Commissioner, VAT, Delhi

No. 43                                                                                       Dated: 20/12/05

Copy to:
1. Applicant
2. STO (Policy)
3. Bar Association
4. Guard File

(R.K. Verma)
Commissioner, VAT, Delhi

 

 

Hob Nob Electronics Pvt. Ltd.; Order No. 52/CDVAT/2005

Positive Prints on Photo Paper not liable to tax under DVAT Act, 2005

DVAT: Developing  the  negatives  and  giving the  customer  positive  prints  on  photopaper  would  not  amount  to  transfer of  property  in  works  contract  and  hence  is  not  liable  to  tax  under  DVAT Act,  2005.

 IMG_6924_thumb

 

BEFORE SHRI R.K. VERMA, COMMISSIONER, SALES TAX : DELHI

No.: 71/CDVAT/2005
Date of Order : 07.12.05

M/s. Northern India Colour Lab Assn.
B-93, GT Karnal Road,
Industrial Area,
Delhi-110 033

ORDER

Present for the Applicant           :      Sh. S.K. Verma, Advocate
Present for the Department       :      Sh. V.K. Kandpal, DR

 

The above named applicant has moved this application on 09/11/05 for determination of the undermentioned question u/s 84 of the Delhi Value Added Tax Act, 2004:

(A) Whether the business of photography, analogue or digital, where some material is transferred like paper and consumables or VCD or DVD or Video Cassette from the photographer to the consumer is covered in the definition of sale as works contract in-spite of ruling of the Hon. Apex Court Rainbow Color Lab’s case?

(B) Whether the activities of the photographers would be in the nature of a works contract keeping in view the definition of the works contract given in the DVAT Act, 04 the ruling of Hon. Apex Court in Rainbow Color Lab’s Case?

(C) Whether the judgment of the Hon. Apex Court in Rainbow Color Lab is not applicable to the facts and circumstances of the case?

(D) Does the judgment of the Hon. Apex Court in ACC’s case overrule the judgment in Rainbow Color Lab keeping in view the principles of Article 141 of the Constitution?

 

2. The application for determination has been preferred in the prescribed format DVAT-42 and requisite fee of Rs.500/- has been paid vide pay order No.993341 dated 21.09.05.

 

3. The question involved for decision in this determination application is as to whether or not the work done by the photographers is covered under ‘works contract’ and is liable to tax under the DVAT Act, 2004? The contention of the applicant Association is that the work done by them is only a service contract for skill and labour and there is no element of sale involved in their work. Hence, according to the applicant, the turnover falls outside the purview of the DVAT Act, 2004. In support of this claim, the Counsel for the applicant has submitted that the Members of the Colour Lab Association are engaged primarily in developing, manufacturing and marketing professional and digital imaging products and providing services and solutions to their pre-dominant domestic customers. During this process, the raw materials and the items used therein are claimed to be purchased after making payment of Value Added Tax on these goods in Delhi. According to the applicant, all these activities involve skill and labour and the element of cast of the goods transferred to the customer is of negligible value. Some of the examples of such works as quoted by the applicant in the application are as under:

a) Customers walk up to the Color Labs asking for their passport sizedd or stamp size photographs. Our experts shoot their photographs either through a digital or a rolled camera and then supply them the positive prints on paper consumed by our Members. The cost of paper and the consumables in such process does not exceed more than 10-15 percent of the total value charged depending upon the size of the’ Color Lab. In other words, if we take a total charge of Rs.20/- for 4 positive prints, the cost of materials transferred and involved in the execution of the works contract will not be more than Rs.2/- under normal circumstances.

b) Customers walk up to the Color Lab with their shooting film rolls or digital memory cards asking us to supply them positive prints. Here also, either through manual development of negatives or through computerized operations, we supply them positive prints and charge them the price per print. Here also, the cost of raw materials in the form of consumables and paper will not exceed 40 to 45 percent under normal circumstances.

c) Customers also engage our Members for undertaking turnkey jobs like shooting at marriages or conferences or exhibitions etc. A few years ago, these jobs were completed with supply of hundreds of large size portraits of positive prints. But now with the advent of digital imaging technology, the customers ask for either VCDs or DVDs or Video Cassettes and we do not provide any positive prints. Hence, this job which accounts for over 80 percent revenue in this industry, does not involve any transfer of material to the customer except a VCD or a DVD or a Video Cassette costing less than Rs.20/- on an average. Even no consumable is transferred in such cases. Very few domestic consumers take positive prints now-a-days or they pick up and choose from the pictures displayed on a TV Monitor through DVD players and ask for positive prints. They have their own albums in which the positive prints are placed or they buy an album and give the same to our Members to place in them the positive prints.

d) Small amateur or professional free-lancer photographers come up to our Color Labs and ask for developing a film roll onto a VCD or DVD or for supplying the positive prints. Such jobs are done on cost to cost basis at very nominal profits to help such peoples to grow.

e) Institutional Consumers like Government or Foreign Missions used to be a big business earlier but not now. They have inhouse facilities for taking positive prints through computers and photo friendly printers. They, therefore, use our professional skills for shooting the pictures only and then take VCD or DVD and make payment to us. Here also, no material, whatsoever, is transferred to them.

f) The value addition in terms of tangible material being transferred from the photographer to the consumer is very less but the value addition in terms of use of professional skill and expertise is substantial. The value of goods transferred is more or less at cost and hence, the input tax and output tax may not show very large variation on macro basis.

 

4. Accordingly, the Counsel for the applicant Association pleaded that the applicant should be kept out of the purview of levy of the Delhi Value Added Tax. He also mentioned that the judgement of the Hon. Supreme Court in Rainbow Color Lab was not followed in the past on the ground that the subsequent judgement of the Hon. Supreme Court in a Custom’s case observed that the law laid down in Rainbow Color Lab’s case ran counter to the spirit of the 46th Amendment. In the opinion of the Counsel for the applicant, the work done by the applicant even today is only a service contract for their skills and labour and that no element of sale was involved. This has been so inspite of the observations of the Hon. Supreme Court about the law laid down in Rainbow Colour Lab case in its subsequent judgement in the case of ACC Ltd.. As the Counsel further added, the observations of the Hon. Supreme Court in Everest Copiers case (1996)-5 Section 390) quoted with approval the Rainbow Colour Lab’s case were as under:

“Where the main object of the work undertaken by the person to whom the price is paid is not the transfer of a chattel as a chattel, the contract if one of work and labour.

The main object of the work undertaken by the operator of a photocopier or Xerox machine is not the transfer of the paper upon which the copy is produced; it is to duplicate or make a Xerox copy of the document which the payer of the price wants duplicated. The paper upon which the duplication takes place is only incidental to this transaction. The object of the payment of the price is to get the document duplicated, not to receive the paper. The payer of the price has no interest in the bare paper upon which his documents is duplicated. He is interested in it only if it bears such duplication. What is involved is not a sale but a contract of work or labour.”

 

5. Sh. Verma filed written submittions further quoted the case of “C.K. Jidheesh v/s Union of India and Others” which came up before the Hon. Apex Court through Civil Writ Petition No. 507 of 2002. The petition was decided on 27.10.2005 wherein the Hon. Apex Court regarding the case of Rainbow Colour Lab & Anr. Vs. State of M.P. & Ors., reported in (2000) 2 SCC 385, held “that contracts of the type entered into by persons like the Petitioner were nothing else but service contracts pure and simple. It is held that in such contracts there was no element of sale of goods. This judgement was binding on this Court. In view of this Judgement, the question of directing the Respondent to bifurcate the receipts into an element of goods and the element of service can not and does not arise. We see no substance in the contention that facts in Rainbow Colour Labs case were different in as much as in that case the Court was dealing with a case where photographers take photographs, develop them and then give the photos to the customers. In our view the ratio of Rainbow Colour Lab’s case also applies to cases like the present”.

 

6. The DR has however, submitted that it appeared to be in the wake of the judgement of the Hon. Apex Court in the case of “Rainbow Colour Lab & Anr. v/s State of Madhya Pradesh & Others” reported as 118 STC 19 that a Circular referred to by the Counsel for the applicant in support of his case was issued by the Deptt. and that now, when in the subsequent judgement of the Hon. Apex Court delivered in the case of “Associated Cement Companies Ltd. V/s Commissioner of Customs” reported as 124 STC 59(SC), the earlier judgement referred to above has been held to be running counter to the express provision contained in Article 366(29A) as also of the Constitution Bench decision of the Hon. Supreme Court in the case of “Builders Association of India v/s Union of India” reported as (1989) 2 Sec. 645, the legal position as on date stands altogether changed and the Circular referred to above no longer applicable in such like cases. Therefore, according to the DR, the applicant is liable to pay the value added tax on the value of photographs etc. supplied by them. The DR further submits that even in the light of recent judgement of Supreme Court quoted by Counsel for the applicant as above, there will be some element of the material transferred to the customer and this transfer of goods would fall under the purview of DVAT Act, 2004.

 

7. I have heard the arguments put forth from both the sides as well as looked into the judgements of the Hon’ble Supreme Court in the cases of M/s Rainbow Colour Lab (118 STC 19), M/s. Associated Cement Companies Ltd. (124 STC 59) and M/s C.K. Jidheesh v/s Union of India and Ors. in CWP No. 507 of 2002 on 27.10.05. In the case of M/s Rainbow Colour Lab, the Hon’ble Supreme Court was pleased to observe as under:-

“Prior to the amendment of Article 366, the States could not levy sales tax on sale of goods involved in a works contract because the contract was indivisible, All that has happened in law after the 46th Amendment and the Supreme Court’s decision in Builders’ Assn. of India case, reported in (1989) 2 SCC 645 is that it is now open to the State to dividethe works contract into two separate contracts by a legal fiction: (i) contract for sale of goods involved in the said works contract, and (ii) for supply of labour and service. This division of contract under the amended law can be made only if the works contract involves a dominant intention to transfer the property in goods and not in contracts where the transfer in property takes place as an incident of contract of service. The said amendment has not empowered the State to indulge in a microscopic division of contracts involving the value of materials used incidentally in such contracts. What is pertinent to ascertain in this connection is what was the dominant intention of the contract. Every contract, be it a service contract or otherwise, may involve the use of some material or the other in execution of the said contract. The State is not empowered by the amended law to impose sales tax on such incidental materials used in such contracts.”

While concluding, the Hon. Apex Court was pleased to decide the case in the following terms:-

“Thus, it is clear that unless there is sales and purchase of goods, either in fact or deemed, and which sale is primarily intended and not incidental to the contract, the State cannot impose sales tax on a works contract simpliciter in the guise of the expanded definition found in Article 366(29-A) (b) read with section 2(n) of the State Act. On facts as we have noticed that the work done by the photographer which as held by this Court in Kame case is only in the nature of a service contract not involving any sale of goods, we are of the opinion that the stand taken by the respondent State cannot be sustained.”

Then, in case of Associated Cement Companies Ltd., case the Hon. Supreme Court took the following view:

“In arriving at the aforesaid conclusion the Court referred to the decision of this Court in Hindustan Aeronautics Ltd. v. State of Karnataka [(1984) 1 SCC 706: 1984 SCC (Tax) 90] and Everest Copiers [(1996) 5 SCC 390]. But both these cases related to the pre-Forty-sixth Amendment era where in works contract the State had no jurisdiction to bifurcate the contract and impose sales tax on the transfer of property in goods involved in the execution of a works contract. The Forty-Sixth Amendment was made precisely with a view to empower the State to bifurcate the contract and to levy sales tax on the value of the material involved in the execution of the works contract, notwithstanding that the value may represent a small percentage of the amount paid for the execution of the works contract. Even in the dominant intention of the contract is the rendering of a service, which will amount to a works contract, after the Forth-sixth Amendment the State would now be empowered to levy sales tax on the material used in such contract. The conclusion arrived at in Rainbow Colour Lab case, in our opinion, runs counter to the express provision contained in Article 366(29-A) as also of the Constitution Bench decision of this Court in Builders’ Assn. of India v. Union of India [(1989)-2 SCC 645]”.

Now, in the latest judgment in CWP 507 of 2002, decided on 27/10/05, the Hon’ble Court has been pleased to categorically observe as below:-

Faced with this situation, Mr. Venugopal submitted that the correctness of Rainbow Colour Lab’s case has been doubted by a Bench of three Judges in the case of Associated Cement Companies Ltd. vs. Commissioner of Customs reported in (2001) 4 SSC 593. He relied upon the following observations of this Judgement:

“In arriving at the aforesaid conclusion the Court referred to the decision of this Court in Hindustan Aeronautics Ltd. v. State of Karnataka [(1984) 1 SCC 706:1984 SCC (Tax) 90] and Everest Copiers [(1996) 5 SCC 390]. But both these cases related to the pre-Forty-sixth Amendment era where in works contract the State had no jurisdiction to bifurcate the contract and impose sales tax on the transfer of property in goods involved in the execution of a works contract. The Forty-Sixth Amendment was made precisely with a view to empower the State to bifurcate the contract and to levy sales tax on the value of the material involved in the execution of the works contract, notwithstanding that the value may represent a small percentage of the amount paid for the execution of the works contract. Even in the dominant intention of the contract is the rendering of a service, which will amount to a works contract, after the Forth-sixth Amendment the State would now be empowered to levy sales tax on the material used in such contract. The conclusion arrived at in Rainbow Colour Lab case, in our opinion, runs counter to the express provision contained in Article 366(29-A) as also of the Constitution Bench decision of this Court in Builders’ Assn. of India v. Union of India [(1989)-2 SCC 645]”.

 

8. Therefore, considering the above, the latest decision of the Hon Apex Court, this Court is of the opinion that the case of the applicant is covered by the ruling of the Hon’ble Supreme Court in M/s Rainbow Color Lab’s case and it is held that developing the negatives and giving the customer positive prints on photo paper would not amount to transfer of property in works contract and hence is not liable to tax under DVAT Act, 2005 as held by Hon’ble Supreme Court in the judgement referred to above.

 

(R.K. VERMA)
Commissioner, VAT, Delhi

No. 36                                                                                       Dated: 07/12/05

Copy to:
1. Applicant
2. STO (Policy)
3. Bar Association
4. Guard File

(R.K. VERMA)
Commissioner, VAT, Delhi

 

 

M/S Northern India Colour Lab Assn.; Order No. 71/CDVAT/2005

Chain Pulley Machine will be taxable at 12.5 as general unclassified goods

By order number:- 55/CDVAT/2005 dated 28th November 2005, in the case of M/s Hindustan Wire Ropes determined that “Chain pulley Machine” do not find any place in the list of capital goods inserted in the Third Schedule (Part-B), and can not be included in Plant & Machinery & hence Taxable @ 12.5% as general unclassified goods.

They Further stat that in Part B of Third Schedule capital goods as plant and machinery have exclusively be defined and the Chain Pulley Blocks do not appear in the said schedule.

chain_pulley_block_chain_block

 

BEFORE SHRI R.K. VERMA, COMMISSIONER, VAT : DELHI

No. 55/CDVAT/2005
Date of Order : 28.11.05

M/s Hindustan Wire Ropes
751/208, II Floor, Kundewalan,
Ajmeri Gate, Delhi-6.

ORDER

Present for the Applicant            :      Sh. Deepak Vehal, CA
Present for the Department        :      Sh. V.K. Kandpal, DR

 

The above named applicant has filed the present application for determination of the undermentioned question u/s 84 of the Delhi Value Added Tax Act, 2004.

Whether the item as defined in Part B of Third Schedule of the DVAT Act i.e. plant and machinery/capital goods, includes Chain Pulley Blocks or not?

The application has been made in the prescribed format DVAT-042 and requisite fee of Rs. 500/- has been made as per DVAT 20 (Part C) dated 15th September 2005 in the Syndicate Bank, Patpartar Ganj.

The dealer deals in lifting equipments, Chain Pulley Blocks etc. These items are taxable at 12.5% and some of them are at 4%. According to the Counsel appearing for the applicant “Chain Pulley Blocks” are used for handling of materials in all industrial units and as such this should be covered under items as defined in Part B of Third Schedule i.e. plant and machinery/capital goods. As per his contention, Chain Pulley Blocks is very much a machinery and it should be allowed as capital goods under the item plant and machinery of the said schedule.

The DR has opposed the plea of the dealer stating that in Part B of Third Schedule capital goods as plant and machinery have exclusively be defined and the Chain Pulley Blocks do not appear in the said schedule.

I have heard the arguments addressed to this Court from both sides as well as gone through the application filed u/s 84(4).

Having considered all the aspects of the provisions in DVAT Act this Court is of the opinion that since the item “Chain Pulley Blocks” do not find place in the list of capital goods inserted in the Third Schedule of the DVAT Act (Part B) and as such it cannot be considered to has been included under plant & Machinery /capital goods of the said schedule. Ordered accordingly.

 

(R.K. Verma)
Commissioner, VAT, Delhi

No. 44 Dated: 20/12/05

Copy to:
1. Applicant
2. STO, Policy
3. Bar Association
4. Guard File

(R.K. Verma)
Commissioner, VAT, Delhi

 

 

Copy of Order No. 55/CDVAT/2005

 

 

Stationery Items to be Taxable at 12.5

Stationery Items to be Taxable at 12.5

Stationery Items – Delhi Vat

DVAT: The items Stencils, Erasers and Pro-Circles in loose form ands the items Poster Colours, Acrylic Colours, Oil Colours, Tube Colours, Fabric Colours, Ceramic Colours, Drawing Brushes, Colour Mixing Plates and Drawing Pins in loose form shall continue to attract tax at 12.5% under section section 4(1) (e) of the DVAT Act.

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M/S Ritika Enterprises; Order No. 39/CDVAT/2005

 

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