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TMI Blog2006 (2) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... in taxing the skimmed milk powder and ultra high temperature milk (UHT milk) under item No. 58 of Schedule IV of the Act. It is contended that the Andhra Pradesh General Sales Tax Act, 1957 was repealed by the Andhra Pradesh Value Added Tax Ordinance, 2005 which was, later on, enacted as Act No. 5 of 2005. Under the APGST Act 6 of 1957 the Government, in exercise of its power under section 9, issued notification in G.O. Ms. No. 1091 (Revenue) dated June 10, 1957 exempting from tax the sales of fresh milk, curd and butter milk sold by dealers exclusively dealing in them and their products realised from surplus thereof. Another G.O. Ms. No. 20, dated January 20, 1980 was issued granting exemptions in respect of sales of pasteurised milk. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s violative of article 14 of the Constitution of India. He relies on a judgment of the Supreme Court reported in D.S. Nakara v. Union of India (1983) 1 SCC 305. This case, in our view, has no relevance. It was dealing with a case pertaining to the pensioners and the court was examining as to whether the class of pensioners was further divisible for the purpose of entitlement and payment of pension into those who retired by certain date and those who retired after that date. The court held that the classification was too microscopic classification. The reasons for coming to this conclusion were given in the judgment itself. In paras 28 and 29, the Supreme Court made the following observations: "28. Pensions to civil employees of the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon." 5.. Another judgment on which reliance has been placed by the learned counsel for the petitioners is the judgment of the Gujarat High Court reported in Chunilal Mayachand v. State of Gujarat [1992] 86 STC 105. The question with which we are concerned and was before the Gujarat High Court was whether "milkmaid full-cream condensed milk" was not "milk, whole or separated or reconstituted" as appearing in entry 10(i) of Schedule I to the Gujarat Sales Tax Act, 1969. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a judgment of the Allahabad High Court in Indodan Milk Products Ltd. v. Commissioner of Sales Tax [1974] 33 STC 381 (FB). The Allahabad High Court came to the conclusion that the condensed milk was nothing but milk in concentrated form which is obtained by evaporating water from milk in a fluid state and thereafter some sugar or preservative is added to it. The court held that the condensed milk, as a matter of fact, was milk and not product. The Madras High Court accepted the view of the Allahabad High Court and held that the condensed milk was milk. There was no separate entry for condensed milk. 7.. In a judgment of the Supreme Court reported in Collector of Central Excise v. Technoweld Industries [2003] 1 RC 851; [2003] 155 ELT 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases referred to above, but we are concerned with the question whether fresh milk and pasteurised milk and skimmed milk powder and UHT milk could be placed in two different Schedules by the State. Therefore, the judgments referred to by the learned counsel for the petitioners would not be helpful in any way to come to a correct conclusion. 10.. The learned counsel for the respondents has referred to a judgment of the Supreme Court reported in State of Andhra Pradesh v. Mcdowell & Co. (1996) 3 SCC 709, to submit that mere allegation of unreasonableness was not enough to strike down an enactment. He submits that the Supreme Court has held that the Act can be struck down only on two grounds, viz., (1) lack of legislative competence or (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e General Sales Tax Act, one entry pertaining to "raw granite stones" and other pertaining to "polished granite stones". This Court held that since raw granite stones and polished granite stones were shown under two different entries, they could be taxed differently. 15.. The learned counsel for the petitioners has also placed before us the definition of milk. As we have already framed an opinion that the question before us is not whether skimmed milk powder and UHT milk is milk or not, the question is what is the effect of having two different entries for "fresh milk" and "pasteurised milk " and "skimmed milk powder" and "UHT milk". Since there were judgments of this Court and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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