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2015 (1) TMI 993 - HC - VAT and Sales TaxClassification of 'Nestle Toned Milk' - 'fresh milk' or 'pasteurized milk' falling under Sl. No. 6 of Part B of the Third Schedule to the Tamil Nadu General Sales Tax Act, 1959 – Entitlement for exemption - Held that:- There was no justification on the part of the Tribunal making reference to the provisions under the Tamil Nadu Value Added Tax Act for the purpose of considering the claim of exemption - even in the case of sale of toned milk, pasteurisation is an important process, that without boiling milk to a suitable temperature, the bacterial content cannot be removed - this is so required for the purpose of giving shelf life to milk - while pasteurisation is a process of heating fresh milk at least to 71.5 degree centigrade, the ultra-heat temperature goes further beyond that - The mere fact of further heat treatment to the milk to the higher degree does not mean any the less the product, being toned milk - It is no doubt true that in UHT packet, there are additives made to make good for the loss of vitamin content, therein by heating - in the absence of any specific entry to give a distinct treatment to ultra-high temperature heated milk product or milk packets under the Tamil Nadu General Sales Tax Act, toned milk would certainly call for similar treatment, be it a "pasteurised milk" with 74 degrees and odd treatment or "pasteurised milk", treated with ultra-high temperature. Exemption is granted in respect of sale of fresh milk, pasteurised milk and directly reconstituted milk - milk treated to UHT was not separately treated as an item of taxation or as an item of exemption - when the entry reads as "pasteurised milk", all that it was concerned was "milk", which was subjected to pasteurisation irrespective of the degree to which it has been heated - when the entry is clear indicating the item of exemption and further on the fact that the consistent case of the assessee was that what was sold was without any additives and what was sold was only a pasteurised milk in the name of toned milk, for the purpose of finding tax liability, one need not travel beyond entry 6 of Part B of the Third Schedule to the Tamil Nadu General Sales Tax Act - when the entry is very clear and the item sold by the assessee also admits that it is a pasteurised milk, and in the absence of any material placed by the Revenue that what was sold was flavoured milk - addition of any vitamins to the pasteurised milk nevertheless retains its character as milk for the purpose of exemption and when the Andhra Pradesh High Court dealt with UHT milk as distinct from pasteurised milk, this was done on account of the differential treatment meted out on account of the distinct entries - the entry in the Third Schedule of Part B of the Tamil Nadu General Sales Tax Act makes no distinction between "pasteurised milk" and "UHT milk", in the absence of any such distinction made and toned milk, by itself is again a pasteurised milk only, the assessee is entitled to exemption as goods falling under the Third Schedule to the Tamil Nadu General Sales Tax Act - when the Commissioner himself has admitted that toned milk sold in sachets is also pasteurised milk qualifying for exemption, there was no justification to restrict it for a particular period alone as referred to in the clarification – thus, the order of the Tribunal is set aside and assessee is entitled for exemption – Decided in favour of assessee.
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