TMI Blog1991 (1) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... and 1979-80, showing the sale turnover of idli instant mix, vada instant mix and jamoon instant mix sold in packages of Rs. 54,000, the Additional Commercial Tax Officer, Davangere (the assessing authority) levied tax at the rate of 4 per cent under section 5(1) of the Act treating the goods sold by the assessee as non-Schedule goods. Later on, the assessing authority found that the levy of tax at the rate of 4 per cent under section 5(1) of the Act on the sale of goods in question was incorrect and that the goods were taxable at 8 per cent under entry 98 of the Second Schedule to the Act. Having concluded that the turnover of the assessee in respect of the assessment years in question in relation to the goods had escaped assessment to tax, the assessing authority issued a notice to the assessee on April 6, 1981, under section 12-A of the Act proposing the levy of tax at 8 per cent and inviting objections, if any, for the proposed rate of tax. The assessee received notice on April 22, 1981 and filed objections on April 30, 1981. He contended that the idli instant mix, vada instant mix and jamoon instant mix (hereinafter referred to as "the goods in question") were not "food" with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te authority, dismissed the appeals. Raising the question of law, extracted earlier, the assessee has come before this Court with these revision petitions. 5.. There is no dispute that the assessee sells the goods in packages made of polythene in the form of small bags firmly stitched at the openings. The learned counsel for the petitioner produced before us one such bag for our examination. 6.. Entry 98 of the Second Schedule to the Act reads: "98. Tinned, canned and bottled foods and fruits 8 per cent." including foods and fruits packed in sealed containers. 7.. It can be said that the assessee did not sell the goods either in tins or in cans or in bottles. 8.. But can it be said on the admitted facts that the goods the assessee has sold had been sold in a packed condition packed in sealed containers. 9.. In Commissioner of Sales Tax v. G.G. Industries [1968] 21 STC 63 (SC), the question as to what meaning should be given to the expression "sealed container" that appeared in clause (2) of the Notification No. S.T. 118/X-929-48 dated June 7, 1948, issued by the Governor in exercise of the powers conferred by section 4 of the U.P. Sales Tax Act, 1948, came up for consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmeric was a foodstuff within the meaning of clause 3 of the Spices (Forward Contracts Prohibition) Order, 1944, read with section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946. Rule 81(2) of the Defence of India Rules was wide and all embracing. The Spices (Forward Contracts Prohibition) Order, 1944, clearly fell within the ambit of the rule. One of the purposes of the said order, as disclosed in its preamble, was 'to maintain supplies essential to the life of the community". In other words, it was considered as essential commodity and not a luxury which in times of austerity could be dispensed with. 13.. To decide the question, the Supreme Court referred to the definition of the word 'foodstuff" given in the Oxford English Dictionary: "that which is taken into the system to maintain life and growth and to supply waste of tissue"; to the definition of the word "food" in Webster's International Dictionary where "food" is defined as: "nutritive material absorbed or taken into the body of an organism which serves for purposes of growth, work or repair and for the maintenance of the vital processes"; to the explanation that follows the definition: "Animals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order designed to prohibit the hoarding of food, namely, the Food Hoarding Order of 1917. The learned Judges held it was not. The Food Hoarding Order had not specified tea or indeed any other article. The background and the reasons given for the decision would show that a narrow meaning was given to the expression "article of food". In Sainsbury v. Saunders (1919) 88 LJKB 441, Darling and Avory, JJ, who were parties to the decision in Hinde v. Allmond (1918) 87 LJKB 893, took different views. Avory, J., held that "tea" was an article of food for the purposes of the Defence of the Realm Regulations, while Darling, J., adhered to his earlier view. Salter, J., who was not a party to the earlier decision in Hinde v. Allmond (1918) 87 LJKB 893, was of the same opinion as Avory, J. 16.. The Supreme Court in para 23 of the judgment on page 338 of AIR made it clear that the reference to the cases discussed was not for purposes of comparison but to show that the terms "food" and "foodstuff" can be used in both a wide and narrow sense and that the circumstances and background can alone determine which is proper in any given case. 17.. Adverting to the history of the legislation, one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e construed in its popular sense meaning that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. 21.. In Vimala Cold Storage v. State of Kerala [1976] 38 STC 217, items 23 and 25 of the Schedule I of the appendix to a notification issued in exercise of the powers conferred by section 10 of the Kerala General Sales Tax Act, 1963, had exempted from payment of sales tax "fresh fish " and "meat except meat which is cured or frozen", respectively. The question was, whether meat and fish preserved in cold storage by refrigeration would be entitled to the exemption. It was held that "fresh fish" would be entitled to the exemption under the notification and that "meat" kept in cold storage where the temperature would come to a minimum of O C for the purpose of preserving the same by refrigeration would come within the expression. "meat which is frozen" and would, therefore, be not entitled to the exemption under the notification. 22.. In State of Andhra Pradesh v. Vayugundla Venkata Subbaiah Sons [1983] 54 STC 133 (AP) the question under consideration was, whether "ravva" was "rice" within the meaning of entry 66 of the First ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . foods pl: stocks or bonds of food companies." 26.. According to Chambers' 20th Edition Dictionary, "food" means "what one feeds on; that which, being digested, nourishes the body; whatever sustains or promotes growth". 27. We were told that the jamoon instant mix sold by the assessee contains "maida, ghee or refined oil" and all that is required to make it ready for consumption would be to mix the same with water to prepare balls, roast them either in ghee, oil or vanaspati and keep them in solidified liquid containing high percentage of sugar. Idli instant mix contains rice ravva. To make it ready for consumption, it has to be mixed with water to convert it into a paste, prepare cakes and subject the cakes to heating process in a vessel meant for the purpose or in a designed container. Vada instant mix contains "uridal" flour. It has to be mixed with water to convert it into a soft paste, prepare the paste into cakes and then roast the cakes either in ghee, refined oil or vanaspati to make it ready for consumption. 28.. Having regard to the definition of "food" given in the Chambers' 20th Edition Dictionary, Webster's Third New International Dictionary and the Shorter Ox ..... X X X X Extracts X X X X X X X X Extracts X X X X
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