1982 (11) TMI 159 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Interpretation of entry No. 36 in Schedule A to the Bombay Sales Tax Act, 1959, regarding whether 'skimmed milk powder' falls within its scope.
2. Whether there was any evidence before the Tribunal for concluding that skimmed milk powder is understood as milk in common parlance.

Summary:

Issue 1: Interpretation of Entry No. 36 in Schedule A to the Bombay Sales Tax Act, 1959

The respondents, Messrs. Agarwal & Co., contended that skimmed milk powder was covered by entry No. 36 of Schedule A to the Bombay Sales Tax Act, 1959, and hence was exempt from sales tax. The Sales Tax Officer rejected this contention and subjected the sales of skimmed milk powder to tax. The Tribunal, after considering the decisions of the Commissioner in the cases of Messrs. Vyas Corporation and Messrs. Hariom Sales Corporation, concluded that skimmed milk powder is covered by entry No. 36, which includes "Milk, whole or separated or reconstituted." The Tribunal allowed the second appeal filed by the respondents. The High Court examined whether skimmed milk powder falls within this entry and noted that the term "milk" in the entry is not confined only to fresh full cream milk but has a wider connotation, including separated and reconstituted milk. The legislative history of the entry showed that milk powder was expressly included in the entry up to 31st October 1952, and the term "milk" would ordinarily include all types of milk, including milk powder. The Supreme Court's decisions indicated that a general term in fiscal legislation covers the commodity in all its forms and varieties. Therefore, the High Court concluded that milk in powder form is included in the term "milk" in entry No. 36.

Issue 2: Evidence Before the Tribunal

The second question was whether there was any evidence before the Tribunal for concluding that skimmed milk powder is understood as milk in common parlance. The High Court found that both sides had relied upon the factual position set out in the case of M/s. Vyas Corporation, which was not contested by the parties. The Tribunal had exhaustively discussed this factual position and relied upon the findings in that case. Therefore, the High Court held that there was material or evidence before the Tribunal for coming to the conclusion that skimmed milk powder is understood as milk in common parlance.

Conclusion:

The High Court answered both questions in the affirmative, in favor of the assessee and against the department. The applicant was ordered to pay the costs of the reference to the respondents.