TMI Blog1982 (11) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 52 of the Act in the case of Messrs. Vyas Corporation (DDQ-1171/164/B-2 dated 4th October, 1972) and the detailed discussion of facts and law in that decision. They also submitted that a subsequent decision of the Commissioner in deterermination proceedings in the case of Messrs. Hariom Sales Corporation (No. DDQ-1174/198/B-10 dated 13th December, 1975) was not applicable to the present case. The respondents also challenged the correctness of the decision in Hariom Sales Corporation case. The Tribunal considered in detail the decisions of the Commissioner in two earlier cases as well as the detailed reasoning given in these two decisions and came to the conclusion that skimmed milk powder is covered by entry No. 36 of Schedule A to the Bombay Sales Tax Act, 1959, as then in force. The Tribunal accordingly allowed the second appeal filed by the respondents. Thereafter, at the instance of the department, the following two questions have been referred to us under section 61(1) of the Bombay Sales Tax Act, 1959: "(1) Whether, on a true and proper interpretation of entry No. 36 in Schedule A to the Bombay Sales Tax Act, 1959, the Tribunal was correct in holding that the 'sk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows: "13. Condensed milk, whether sweetened or not." Thus, under the exemption notification preparations of milk leviable to excise duty became exempt from the levy of duty. But from that exemption, certain milk preparations such as those mentioned in items 12 and 13 were excluded. On the basis of these exclusions, the excise authority levied excise duty on condensed skimmed milk. The Supreme Court was required to consider whether condensed skimmed milk was excluded from exemption by virtue of entry 13. In view of the provisions of the Central Excise Rules and the Hand Book on Self Removal Procedure under the Central Excise Rules and certain instructions in the Hand Book on Self Removal Procedure, which were considered in detail by the Supreme Court in its judgment, the Supreme Court came to the conclusion that in view of the clear differentiation made between whole milk and skimmed milk in various annexures referred to therein, a distinction should be made between condensed milk and skimmed condensed milk. It held that skimmed condensed milk was not covered by item 13 "condensed milk, whether sweetned or not" and hence was not excluded from exemption. In the course of its jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's milk, but does not include cream, or separated, skimmed, dried, condensed or evaporated milk, or buttermilk." He goes on to say that this definition is obviously an ad hoc definition for the purpose of the Regulations, thereby implying that the items which are excluded from "milk" in the definition could have been considered as covered by the term "milk" in common parlance and that the exclusion of these items from the term "milk" was an ad hoc exclusion not based upon any scientific principles. The author has also observed that "all attempts to define milk more accurately lead to difficulties........" and has stated that "scientifically there is no reason why milk should not be defined in terms of chemical constitution and ranges of concentration of the constituents". At page 716, the author has described "milk powder" and has stated that "milk powder is produced by the removal of the water from milk by heat or other means to produce a solid containing 3 per cent or less moisture. Whole milk, milk from which part of the cream has been removed or skim milk may be used for this purpose..........." Thus, milk powder has been described as milk from which water has been removed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ---------------------------------------------------------------------------- Act Schedule Entry Description of goods Period No. ------------------------------------------------------------------------------------------------------------------------ 1 2 3 4 5 ------------------------------------------------------------------------------------------------------------------------ Bombay Sales II 14 Fresh milk, condensed 1-10-1946 to Tax Act, 1946 milk, separated milk, 31-3-1948 milk powder and infant foods. do. II 14 Fresh milk, whole or 1-4-1948 to separated and milk pow31-10-1952 der Bombay Sales I 24 Fresh milk, whole or 1-11-1952 to Tax Act, 1952 separated 31-3-1953 Bombay Sales A 34 Milk, whole or separa1-4-1953 to Tax Act, 1953 ted 31-12-1959 Bombay Sales A 36 Milk, whole or separa1-1-1960 to Tax Act, 1959 ted or reconstituted 30-6-1981 do. A 34 Milk in liquid form, 1-7-1981 till whether sweetened or date not, but not including condensed milk or flavoured milk ------------------------------------------------------------------------------------------------------------------------ Thus, originally the entry in terms pertained to fresh milk. Therefore, mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... processes. A term in a fiscal legislation should be interpreted having regard to newly developing materials, methods, techniques and processes. It held that the concept of "textiles" was not a static concept. It had, having regard to newly developing materials, methods, techniques and processes, a continually expanding content and new kinds of fabric may be invented which may legitimately, without doing any violence to the language, be regarded as "textiles". In the same manner, milk in powder form can be looked upon as a result of this continually evolving technology. There is no reason why it should be excluded from the generic term "milk". 8.. Mr. Jetly has submitted that powdered milk must be looked upon as a different commodity from milk even though its composition and uses were the same as those of milk. He relied upon the analogy of water and ice and argued that though the chemical composition of water and ice was the same, the two were different commercial commodities. He relied upon a decision of the Allahabad High Court in the case of Goel Industries (Pvt.) Ltd. v. Commissioner of Sales Tax, U.P., Lucknow, reported in [1971] 28 STC 729, where the Allahabad High Court m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record before the Tribunal for coming to the conclusion that skimmed milk power is understood as milk in common parlance, we find from a perusal of the record as forwarded to us along with the statement of case that both sides had relied upon the factual position as set out in the case of M/s. Vyas Corporation, Bombay. It was nobody's case that the factual position regarding skimmed milk powder in the present case was in any manner different from that set out in the case of M/s. Vyas Corporation. The Tribunal also proceeded on that basis in arriving at its conclusion and has exhaustively discussed the factual position as set out in the case of M/s. Vyas Corporation and has relied upon the finding in that connection given in that case. In these circumstances, it is not possible to hold that there was no material or evidence before the Tribunal for coming to the conclusion that skimmed milk powder is now understood as milk in common parlance. 11.. In the premises, we answer the questions as follows: Question No. (1): In the affirmative, that is to say, in favour of the assessee and against the department. Question No. (2): In the affirmative, that is to say, in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
