TMI Blog1970 (11) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... and that, therefore, it was a food provision with low calories. Since this article is sold in sealed container of weight not exceeding 5 kilograms, according to the Assistant Commissioner of Sales Tax, it was covered by entry No. 6 of Schedule E to the Act. 4. Being aggrieved by this order of the Deputy Commissioner, Sales Tax, the opponents preferred appeal to the Sales Tax Tribunal. The Tribunal was of the opinion that the article concerned was not an article of food and was, therefore, not covered by entry No. 6 of Schedule E. According to the Tribunal, the article would be covered by the residuary entry No. 22 of Schedule E attached to the Act. The Tribunal, therefore, set aside the order of the Deputy Commissioner, Sales Tax, and being aggrieved by that order of the Tribunal, the department has preferred this reference. 5.. The question which is referred to us by the Tribunal is in the following terms: "Whether on the facts and in the circumstances of the case, "Limical" sold under bill No. BA. 9535: d/955 dated 16th February, 1966, is an article of foodstuff or food provision falling under entry 6 of Schedule E to the Bombay Sales Tax Act, 1959." 6.. It is an admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, sauces, jams, marmalades, jellies; preserved fruits and honey) when sold in sealed containers of weight not exceeding five kilograms in each container, but excepting whole, separated or reconstituted milk, milkproducts, as specified in entry 6 in Schedule D, vitaminised infant milk food sold in sealed containers as specified in entry 13 in Schedule C, edible oil, chilly powder and salt." 8.. The question is whether the article in dispute can fall within the above quoted entry, which relates to foodstuffs and food provisions. In order to convince us that the disputed product is a food provision or a foodstuff, Shri Shah, who appeared on behalf of the department, relied heavily on the dictionary meaning given to these expressions. He drew our attention to the meaning of the word "food" and "foodstuff" given in Webster's Dictionary, as found at page 731. Therein the word "food" is declared as under: "Food: (1) any substance taken into and assimilated by a plant or animal to keep it alive and enable it to grow; nourishment; nutriment. (2) solid substances of this sort: distinguished from drink. (3) a specified kind of food. (4) anything that sustains, nourishes, and augmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any technical sense nor from the botanical point of view but as understood in common parlance. It is further observed in that case that if the word has not been defined in the Act and being a word of everyday use it must be construed in its popular sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. " Another decision of the Supreme Court on these lines is found in Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh[1967] 19 S.T.C. 469 (S.C.).In that case their Lordships of the Supreme Court construed the word "coal" found in entry 1 of Part III of Schedule II to the Madhya Pradesh General Sales Tax Act, 1958. The test which was devised while construing this word was, what was the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. It was further held in that case that the sales tax statute, being one levying a tax on goods, must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as "coal" according to the meaning ascribed to it in common parlance. 9.. In our opinion, both thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1944, read with section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946. Bose, J., while discussing this point has made the following pertinent remarks: "Much learned judicial thought has been expended upon this problem -what is and what is not food and what is and what is not a foodstuff and the only conclusion I can draw from a careful consideration of all the available material is that the term 'foodstuff' is ambiguous. In one sense it has a narrow meaning and is limited to articles which are eaten as food for purposes of nutrition and nourishment and so would exclude condiments and spices such as yeast, salt, pepper, baking powder and turmeric. In a wider sense, it includes everything that goes into the preparation of food proper (as understood in the narrow sense) to make it more palatable and digestible." These observations show that in the narrow sense the expression "foodstuff" is limited to those articles which are eaten as "food". In the wider sense, the expression includes everything that goes into the preparation of food (as understood in the narrow sense). Therefore, the emphasis is obviously on the narrow sense within the meaning of which the article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purely nutritive elements of what is eaten from their non-nutritive adjuncts." Applying the ratio of these observations to the facts of the present case, we can say that when one demands foodstuff or food provision, what he really demands is the satisfaction which one gets from eating a particular food article. A person demanding food does not generally demand a particular quantity of vitamins, proteins, fat and carbohydrates. He is mostly unmindful of its caloric value. The only consideration in his mind at the time of demanding food is the satisfaction which an ordinary article of food is likely to give to a normal human being. The satisfaction is physical as well as mental and it has little relation, if any, to the vitamin, or protein value of the article he consumes. In our opinion, therefore, while complying with the test of common parlance, as applied by the Supreme Court in the above referred two decisions, the mental satisfaction which an article of food gives to a normal human being, cannot altogether be overlooked. If this is the proper approach, then we think that the mere fact that an article of food supplies nourishment in the form of vitamins, proteins and carb ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
