TMI Blog2014 (5) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of 3 assessment years Masala Powder is unclassified item and should be treated under residuary clause - This Court in State of Tamil Nadu v. A.K.Sundaram [1983 (3) TMI 233 - MADRAS HIGH COURT] had observed that food must be something which must be taken to maintain life and growth and to supply nourishment - That being the basis, even as per the dictionary meaning of food which has got relationship to the maintenance of life and growth, by no stretch of imagination it can be held that Masala Powder is food by itself. Referring judgment in Ardeshir H. Bhiwandiwala v. State of Bombay, [1961 (1) TMI 70 - SUPREME COURT] relied upon Commissioner of Income Tax, Tamil Nadu-III v. Engine Valves Ltd., [1980 (7) TMI 87 - MADRAS High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Schedule liable to tax at 12%. Challenging the same, the assessee has filed appeals before the Appellate Assistant Commissioner in respect of the said three assessment years. The appeals stood allowed and it was held that Masala Powder will fall under Entry 63 of Part D of the First Schedule as unclassified item. The Revenue preferred appeals against the said order. The Tribunal, under the impugned order, has confirmed the order of the Appellate Assistant Commissioner holding that Masala powder as it is cannot be called a preparation of food, even though it is an aid for preparation of food. It is against the said order, the Revenue has filed the present revisions on the above question of law. 4. Before adverting to the merits of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even in respect of the assessee's case in respect of the above said assessment years, the authorities have been treating Masala Powder before the amendment as a residuary item. 8. The contention of the learned Special Government Pleader is that even though Masala Powder as such cannot be treated as a foodstuff, unless it is mixed with the food, the food will have no meaning and, therefore, it should be treated as a food item. He would also rely upon the decisions in The State of Tamil Nadu v. A.K.Sundaram, (1983) 54 STC 82, S.Giridhar Shenoy v. State of Kerala, (1997) 104 STC 562 and State of Bombay v. Virkumar, AIR 1952 SC 335 to substantiate his contention that Masala Powder should be treated as a food item. 9. On the other hand, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on: "4. According to the learned counsel for the revenue, even if it is not a preparation of vegetable, it is still an article of food. Normally, the dictionary meaning of food is something taken into the system to maintain life and growth and to supply nourishment. We do not think that in that sense arrow-root powder sold by the assessee can be taken to be an article of food. As has been pointed out by the Tribunal, even if arrow-root is a vegetable, every product of vegetable cannot be taken to be an item of food. If every product of vegetable is taken as food, then even turmeric powder has to be taken as food, which is obviously untenable. In this view of the matter, we are in entire agreement with the view of the Tribunal and we accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was construed in terms of use in hotels and restaurants and bars attached to hotel and restaurants and, in our considered view, the facts of the present case cannot be compared to the one which were dealt with by the Kerala High Court. 15. The reliance placed by the learned Special Government Pleader on the judgment of the Apex Court in State of Bombay v. Virkumar, AIR 1952 SC 335 has also no application to the facts of the present case. That was a case, where, while deciding about turmeric whether it is a foodstuff within the meaning of the Essential Supplies (Temporary Powers) Act, 1946, in the context of Essential Supplies (Temporary Powers) Act, 1946 the term "foodstuff" came to be discussed by the Apex Court, which, in our considere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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