TMI Blog2015 (1) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of any specific entry to give a distinct treatment to ultra-high temperature heated milk product or milk packets under the Tamil Nadu General Sales Tax Act, toned milk would certainly call for similar treatment, be it a "pasteurised milk" with 74 degrees and odd treatment or "pasteurised milk", treated with ultra-high temperature. Exemption is granted in respect of sale of fresh milk, pasteurised milk and directly reconstituted milk - milk treated to UHT was not separately treated as an item of taxation or as an item of exemption - when the entry reads as "pasteurised milk", all that it was concerned was "milk", which was subjected to pasteurisation irrespective of the degree to which it has been heated - when the entry is clear indicating the item of exemption and further on the fact that the consistent case of the assessee was that what was sold was without any additives and what was sold was only a pasteurised milk in the name of toned milk, for the purpose of finding tax liability, one need not travel beyond entry 6 of Part B of the Third Schedule to the Tamil Nadu General Sales Tax Act - when the entry is very clear and the item sold by the assessee also admits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steurization effective? (3) Whether the Sales Tax Appellate Tribunal has committed an error of law in rendering its findings found between pages 9-11 of its order dated May 12, 2010 without opportunity to the petitioners to submit on these conclusions and to show that the conclusions sought to be drawn are erroneous? (4) Whether the Sales Tax Appellate Tribunal has committed an error of law in coming to the conclusion that the milk sold by the petitioners was in fact a milk-food or milk product falling under entry No. 4 of Part E of the First Schedule to the Act when in fact there was material to point to the conclusion that the milk fell within that entry? (5) Whether the Sales Tax Appellate Tribunal has committed an error of law in confirming levy of penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 when in fact the penalty was not leviable on account of the Explanation to section 12(3)(b) of the Act? Considering the issue raised in all these tax case revisions being one and the same the following common order is passed: The assessee herein is in the business of marketing and sale of pasteurised toned milk sold under its brand name Nest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer's view. Referring to entry 4(ii) of Part E of the First Schedule to the Tamil Nadu General Sales Tax Act, the first appellate authority viewed that the use of the expression includes brought within its fold, toned milk too. He held that apart from pasteurisation, there are other processes such as flavouring and sterilization. Hence the product would not fall under entry 6, Part B of the Third Schedule to the Tamil Nadu General Sales Tax Act. In the circumstances, the appeal was rejected. Aggrieved by this, the assessee went on further appeal before the Tamil Nadu Sales Tax Appellate Tribunal. By a common order, the Tribunal rejected the assessee's appeal. After pointing out to the distinction between the toned milk, recombined milk and reconstituted milk as well as to the meaning of the term pasteurisation , the Tribunal held that the process pasteurisation and UHT heating were different; consequently, the UHT treated and processed Nestle toned milk in tetra pack, not being same as pasteurised milk, would not qualify for exemption. In so holding, the Tribunal referred to the Tamil Nadu Value Added Tax Act, 2006, which contained the entry for UHT milk under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Schedule, thereby, denying the exemption. Per contra, learned Special Government Pleader appearing for the Revenue supported the order of the assessing officer as well as the order of the Deputy Commissioner (CT) (Appeals) and submitted that pasteurisation, being different from the product sold by the assessee, the turnover did not qualify for exemption. Heard learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondent and perused the materials placed before this court. We agree with the submissions made by the learned counsel appearing for the assessee. As already seen from the preceding paragraph, the Tribunal dismissed the assessee's case primarily on the basis of the entries as are available under the Tamil Nadu Value Added Tax Act, 2006. When we are concerned about the assessment under the Tamil Nadu General Sales Tax Act, we do not find any justification on the part of the Tribunal making reference to the provisions under the Tamil Nadu Value Added Tax Act for the purpose of considering the claim of exemption. Leaving that aspect aside, a reading of various materials placed before this court shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruits, milk, cereals, flour (other than bread and bakery products) starch, birds' eggs, meat, offals, animal blood, fish, crustaceans and molluses. Sub-items (i) to (iii) sold without a brand name From March 27, 2002, the taxing entry on the First Schedule and Third Schedule read as under: Taxing entry Exemption entry First Schedule Part B four per cent effective from March 27, 2002 Third Schedule Part B effective from March 27, 2002 4. (i) Baby milk food 27. (i) Fresh milk, pasteurized milk and directly reconstituted milk. (ii) Flavoured milk (ii) curd. (iii) Foods and food preparations and mixes including instant foods, coconut milk powder, pickles, sweets, cheese, confectionery, chocolates, toffees and savouries like chips and popcorn sold without a brand name. (iv) Ice creams sold without brand name. (v) Non-alcoholic, beverages sold without a brand name. (vi) Sherbet. (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for exemption, as falling under entry 23 of the Third Schedule to the Act. In so holding, the Kerala High Court referred to the meaning of the expression pasteurisation and pointed out that the method of pasteurisation adopted by the assessee was ultra high temperature pasteurisation and pasteurisation referred to the process of heating every particle of milk to at least 63 degree centigrade for 15 seconds in approved and properly operated equipment. After pasteurisation, the milk was immediately cooled to 5 degree centigrade or below. It pointed out that mild form of heat treatment kills any pathogenic bacteria that might be present without affecting nutrimal value or the flavour. Keeping in background the dictionary meaning of the expression pasteurisation and how the product is understood in common parlance, the High Court held that pasteurisation does not make the milk different from natural milk or fresh milk and addition of vitamins A and D to the pasteurised milk, nevertheless retains its natural flavours and characteristics. The decision of the Andhra Pradesh High Court which was referred to by the Tribunal reported in [2006] 145 STC 316 (AP); [2006] 4 VST 1 (AP) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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