TMI Blog1981 (8) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.. The assessees were assessed to tax at 7 per cent in respect of sale of icecream. The respective assessees preferred their respective appeals before the Appellate Assistant Commissioner, Sales Tax, wherein it was contended that icecream should be treated as cooked food and tax on its sale should be levied at 2 per cent. The Appellate Assistant Commissioner rejected the appeals. Second appeals were preferred before the Tribunal. The Tribunal held that ice-cream and ice-candy are cooked food and liable to be taxed as such under entry 8 of Part I of Schedule II to the Act and referred the above question at the instance of the department. 4.. The reference was placed for hearing before the Division Bench of this Court. The Division Bench found that there was a divergence of opinion in the two Division Bench decisions of this Court, namely, in Commissioner of Sales Tax, Madhya Pradesh v. India Coffee Workers' Co-operative Society Ltd., Jabalpur [1970] 25 STC 43; [1969] 2 VKN 138 and in Misc. Petition No. 214 of 1976 (Commissioner of Sales Tax, M.P. v. Mahavir Ice Cream Factory, Shivpuri) decided on 9th April, 1980, and therefore, the matter has been referred to the Full Bench. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for determining as to ice-cream, ice-candy is a "cooked food" and taxable as such under item 8 of Part I of Schedule II to the Act, should it be understood as is understood in the common parlance or it should be understood according to its scientific and technical sense bearing in mind the process of its preparation. There are umpteen decisions of Supreme Court on the point which need a survey. 10.. In Ramavatar Budhai Prasad v. Assistant Sales Tax Officer, Akola [1961] 12 STC 286 (SC); AIR 1961 SC 1325 the question before the Supreme Court was as to the meaning of the word "vegetables" as it appeared on the C.P. and Berar Sales Tax Act, 1947 (No. 21 of 1947) as amended by the C.P. and Berar Sales Tax Act (16 of 1948), whether it includes "betal leaves" or not. Their Lordships of the Supreme Court held that although the word "vegetable" in natural history and according to dictionary meaning is comprehensive enough to include "betel leaves" it has to be construed in its popular sense. The relevant observations read as under: "Reliance was placed on the dictionary meaning of the word 'vegetable' as given in Shorter Oxford Dictionary where the word is defined as 'of or pertaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Mehta, appearing for the State of Orissa, contended that in Orissa chillies and lemons are not used as articles of food. We are unable to accept this assertion as correct. Even if a section of Oriyas have a dislike for chillies and lemons, they do not cease to be vegetables for that reason. In common parlance, chillies and lemons are known as vegetables. We have no doubt that chillies and lemons have always been considered as vegetables." 13.. In Commissioner of Sales Tax, M.P., Indore v. Jaswant Singh Charan Singh [1967] 19 STC 469 (SC); AIR 1967 SC 1454 the question before the Supreme Court was whether charcoal was covered within the meaning of coal and taxable under entry 1 of Part III of Schedule II to the M.P. General Sales Tax Act (2 of 1959), this entry reads as under: "1. Coal, including coke in all its forms 2 per cent." The High Court of M.P. had held that charcoal was covered by entry I of Part III. It was contended on behalf of the State-(i) that coal and charcoal are different products, one being a mineral product and the other prepared from wood and other articles by human agency, and therefore, the term "coal" would not cover charcol; (ii) that while cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 961] 12 STC 286 (SC); AIR 1961 SC 1325, held that as in common parlance "tooth powder" is considered as "toilet", it is an item included in "toilet" for the purpose of sales tax. 15.. In Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. G.S. Pai Co. [1980] 45 STC 58 (SC); AIR 1980 SC 611, following two questions were before the Supreme Court for consideration: "(i) whether certain ornaments and other articles of gold purchased by the assessee with a view to melting them and making new ornaments or other articles out of the melted gold fall within entry 56 'bullion and specie' in the First Schedule of the Kerala General Sales Tax Act, 1963. (ii) whether G.I. pipes sold by the assessee fall within entry 26A in the First Schedule to the Kerala General Sales Tax Act, 1963, 'water supply and sanitary fittings'." The Supreme Court reiterating its earlier dictum that common parlance meaning has to be adopted, held as under: "While interpreting the entries in sales tax legislation it should be borne in mind that the words used in the entries must be construed not in any technical sense nor from the scientific point of view but as understood in commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g it would be advisable to consider whether in their popular sense or common parlance meaning "ice-cream" and "ice-candy" are includible in the simple term "cooked food", when it is not defined in the interpretation clause. What is meant by popular sense and common parlance has been indicated in the authorities of the Supreme Court referred to herein above. We would also like to extract herein below the observations relating to the meaning of the expressions "popular sense" and "common parlance" from Craies on Statute Law (7th Edn.), page 163, as they are of material assistance: "In other words, as was said by Pollock, B., in Grenfell v. Inland Revenue Commissioners (1876) 1 Ex D 242, 248, if a statute contains language which is capable of being construed in a popular sense, such 'a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words 'popular sense' that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it." "And in Attorney-General v. Bailey (1847) 1 Ex 281, 292, it was held that the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its ordinary or "common parlance" meaning. It is a different matter that by the artificial definition it may be made either restrictive or extensive. At this stage we would like to extract the following observations from the decision of the Supreme Court in Commissioner of Gift-tax, Madras v. N.S. Getty Chettiar AIR 1971 SC 2410: "14. As observed in Craies on Statute Law (6th Edn., p. 213) that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning. An interpretation clause is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject-matter to the contrary to be applied to some things to which it would not ordinarily be applicable." The Division Bench in Regal Dairy's case [1981] 47 STC 374; [1981] 14 VKN 7 has also not held that with the changed definition the "common parlance" or "popular sense" meaning of "cooked food" has undergone a change. What the Division Bench has held is that by enacting the entry in its changed form the legislature meant to cover those articles w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "ice-candy" do not fall within the ken of item "cooked food", we proceed to examine whether "ice-cream" and "ice-candy" were covered in entry 8 in Part I of Schedule II to the Act as it stood during the period 1968-69 to 1971-72. This entry reads as under: "8. Cooked food including sweetmeats and mishri, batasha and chironji but excluding cakes, pastries, biscuits, chocolates, toffees, lozenges and peppermint drops. 2 per cent" The entry extracted above says to include certain things and exclude certain things, "ice-cream", "ice-candy", are neither included nor excluded. We have already held that according to their "popular sense" or "common parlance" meaning "ice-cream" and "ice-candy" are not included in the term "cooked food". The decisions of the Supreme Court especially the leading decision in Ramavatar Budhaiprasad's case [1961] 12 STC 286 (SC); AIR 1961 SC 1325 which laid down that for deciding whether a particular thing is covered under a particular entry in the sales tax legislation it should be construed as it is understood in "popular sense" or "common parlance" meaning. Craies on Statute Law (7th Edn.) at page 167 observed: "There is a well-known principle of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the assessment period under consideration. Before we proceed to dilate on these questions we would like to give herein below the history of entry relating to "cooked food" in Schedule I to the Act. "9. Cooked food other than- (a) pastries, (b) a meal the charge of which exceeds rupees two, (c) sweetmeats." This entry was omitted from 1st April, 1964. The disquisition regarding the entry of "cooked food" in Part I of the Schedule II reveals the position as under: SCHEDULE II Part I ------------------------------------------------------------------------------------ No. Description of goods Rate of Point of Period Amendment Act tax levy or Notification No. by which amendments made ------------------------------------------------------------------------------------ 8. Cooked food including 2 per cent. ... 1-4-64 Act 9 of 1964 sweet meats but excludto ing cakes, pastries, 17-2-66 biscuits, chocolates, toffees, lozenges and peppermint drops. 8. Cooked food including 2 per cent. ... From 248-1744-V-ST Dt. sweetmeats and mishri, 18-2-66 31-3-66 batasha and chironji, to but excluding cakes, 30-8-74 pastries, biscuits, chocolates, toffees, lozenges and peppermin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before 1st April, 1964 as item No. 9 in Schedule I. This Court had said that "ice-cream" is cooked food. It may be stated that in that case in fact as it would appear from the discussion contained in its paragraph 4 which is just being set out herein below, it was not disputed that "ice-cream" was a "cooked food". The court had no occasion to determine the question whether "icecream" was a "cooked food": "4. It will be seen from section 10(1) read with entry No. 9 that sales of 'cooked food' are exempt from tax. But if the 'cooked food' is 'a meal' the charge of which exceeds rupees two, then its sale is not exempt from tax. In this reference there is no controversy that the articles enumerated earlier sold by the assessee are cooked food. The sole question raised in this reference is whether the sale of any of those articles singly or collectively exceeding in value rupees two constitutes 'a meal' the charge of which exceeds rupees two. This question turns on the construction of the-expression 'a meal'. The Act does not give any definition of 'meal'. The expression 'a meal' must, therefore, be understood in the sense it has in common parlance and in its popular meaning as under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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