TMI Blog1975 (2) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... arding establishment which is not a shop or establishment conducted primarily for the sale of sweetmeats, confectionery, cakes, biscuits or pastries." The Sales Tax Officer disallowed this claim and held that the icecream manufactured and sold by the respondents was not cooked food, but was a sweet and was, therefore, taxable under entry No. 31 of Schedule C to the said Act. In appeals filed by the respondents to the Assistant Commissioner of Sales Tax, the Assistant Commissioner upheld the orders of the Sales Tax Officer. The respondents thereupon filed second appeals to the Sales Tax Tribunal and the Tribunal allowed the said appeals and held that ice-cream, even though a sweet, was "cooked food" and the "depots" where it was sold for consumption were eating houses, and that the respondents were, therefore, entitled to the exemption claimed by them. Out of the aforesaid order and judgment of the Tribunal, this consolidated reference in respect of both the aforesaid assessment periods has been made. In the question referred to us in this consolidated reference, there are some obvious typographical errors, and both Mr. Parekh on behalf of the applicant and Mr. Patel on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lexicographers themselves-in the Webster's Third New International Dictionary by italicising the word "drink" and in the Shorter Oxford English Dictionary by putting the word "drink " into single inverted commas. Entry No. 14 of Schedule A also brackets "food" and "drink" together because the exemption given by it is to "cooked food and non-alcoholic drinks", that is, to food of a particular type, namely, food which is cooked, and to drinks of a particular type, namely, drinks which are non-alcoholic. Thus, the entry itself shows that the word "food" is used in its general sense as something which one can eat as opposed to something which one can drink. It is, therefore, not possible to accept Mr. Parekh's submission that the word "food" in the said entry No. 14 is confined only to a substantive or a main course in a meal and not to any subsidiary course or a side dish or something that can be taken by way of a snack or refreshment. Even if the position were that the word "food" in the said entry No. 14 is used with reference to the nutritive value of the article or food in question, we find that ice-cream would fulfil that test. The main ingredient in the ice-cream manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application of heat is not ice-cream and cannot be described as ice-cream. In order to test these rival contentions it is necessary to note the process by which the respondents manufacture their Kwality Ice Cream. That process is thus described in the record before us: "...that milk is overboiled for about an hour to reduce the water contents of the milk. Sugar is then added while the milk is boiling to sweeten the milk. After adding sugar the mixture is boiled for about ten to fifteen minutes and custard powder is added. The milk is further boiled for ten minutes. The emulsion is then allowed to cool and then churned; fruits like raspberry, strawberry, mango, pine-apple, etc., or essence and colour are added, and when the whole thing is frozen it is semi-solidified. Then dry and stewed fruits like apricot and pista and almond scrappings are sprinkled over the frozen semi-solidified ice-cream and then it is sold." It will be thus seen that so far as the ice-cream manufactured by the respondents is concerned, that ice-cream could not be manufactured unless and until there is considerable application of heat extending for a considerable period of time to all the main ingredients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was as follows: "Cooked food other than- (a) pastries, or (b) a meal, the charge for which exceeds one rupee." The Madhya Pradesh High Court held that when one spoke of "food" or "cooked food", what one meant was that which one took into the system to maintain life and growth and to supply aliment or nourishment and that in a wide sense food would no doubt include everything that is eatable, but in common parlance "cooked food" meant those things which one ate at regular times of the day at breakfast, dinner or supper. The court further held that biscuit was no doubt a kind of food if the term "food" was understood in a very wide sense and that the process of baking involved in the manufacture of biscuits was no doubt a form of cooking, but it was none the less not cooked food which one took at meal hours because biscuits could be eaten alone or as adjunct to other food, but no one would normally dream of living on biscuits only day in and day out without getting diseases flowing from malnutrition and undernourishment. The entry which came up for consideration before the Madhya Pradesh Court was couched in a different form than the entry with which we have to deal. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it would be wholly wrong to cut down the ambit of the exemption granted by the said entry to what can be eaten only at fixed hours of the day or in the course of a regular breakfast, lunch or dinner. Had that been the intention of the legislature, the entry would have been framed differently. By the Amending Act 1 of 1949 the entry which the Division Bench had to construe in Commissioner of Sales Tax, Bombay Province v. Vishnu Bhagwant Ashtaputre Civil Reference No. 5 of 1949 decided on 1st July, 1949 (Bombay High Court). was amended, and instead of the exception being made in the case of a single meal exceeding eight annas, the exception was made in the case "where the cost of such food and drinks consumed at any one time exceeded rupee one". This amendment was a result of the decision of the Sales Tax Tribunal, against which the reference to the High Court, namely, Commissioner of Sales Tax, Bombay Province v. Vishnu Bhagwant AshtaputreCivil Reference No. 5 of 1949 decided on 1st July, 1949 (Bombay High Court). was made. If at that time the intention was to equate "cooked food" with a "meal", then the amendment would not have been made in the excepting column by substituting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 35 of 1969 decided on 16/17th January, 1975), we have, however, held that, in order to qualify for exemption under the said entry No. 14 of Schedule A, it is irrelevant whether the articles of food sold are consumed inside or outside an eating house. Mr. Patel, the learned counsel for the respondents, on the other hand, has submitted before us that this court cannot supply words or make good the deficiency in the language used by the legislature in order to bring about an effect which has the result of levying a tax on the subject. We really consider it unnecessary to decide between these rival contentions with respect to the construction of the said entry No. 14; for we find that even accepting the interpretation sought to be placed on the said entry by Mr. Parekh, the result is that his contention that the respondents' depots were not eating houses must be negatived. The Tribunal has found, as a matter of fact, that at these depots ice-cream was sold for consumption. It follows, therefore, that according to the facts which were before the Tribunal, ice-cream sold by the respondents could be consumed by the respondents' customers at the respondents' depots. If so, even applyi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
