TMI Blog2019 (5) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings under Section 21 of the Act. Assessee itself has admitted the tax on cream milk mixed and flavoured milk at the rate of 8%. The orders passed by the first appellate authority and Commercial Tax Tribunal are upheld - revision dismissed. - Sales/Trade Tax Revision No. - 538 of 2014 - - - Dated:- 7-5-2019 - Ashok Kumar, J. For the Applicant : S.C. For the Opposite Party : Shubham Agarwal ORDER ASHOK KUMAR,J. Heard Sri Avinash Chandra Tripathi, learned counsel for the revisionist and Sri Bharat Ji Agrawal, Senior Advocate, assisted by Sri Shubham Agarwal and Miss Sayunkta Singh, counsel for the respondent/assessee. This revision has been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has confirmed the original order passed by the assessing authority dated 19.06.2003 by which the assessing authority of the respondent-assessee has imposed the tax on cream milk mixed and flavoured milk at the rate of 8%. Aggrieved by the order of the first appellate authority, the revenue has preferred the second appeal before the Tribunal which was dismissed by the order dated 05.09.2009. Hence the present revision. Learned Standing Counsel has submitted that the order of the Tribunal is not acceptable and the re-assessment proceedings were rightly initiated against the respondentdealer. Learned counsel representing the respondent- dealer has submitted that the controversy involved in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the period of limitation. Thereafter a review application was preferred by the assessee which was allowed by High Court on 22.02.2016 and the order reads as under:- Order on the Review Application No.52415 of 2014 Heard Sri Bharat Ji Agrawal, learned Senior Counsel assisted by Sri Piyush Agrawal, learned Counsel for the assessee and Sri B.K. Pandey, learned Standing Counsel for the State. This matter has come on remand from Hon'ble Apex Court by way of an order dated 30.01.2014. The order of Hon'ble Apex Court is quoted here-under:- 1 After arguing the matter for quite some time, Shri S. Ganesh, learned Senior Counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarifying the position whether there is Trade Tax liability or not on the flavoured milk as also some decided judgements have been referred to. It also has mention of the case of Sarvashri Indodon Milk Products Vs. Commissioner, Trade Tax, which relates to the period when in the definition of milk in Section 4 terms subsequently separated from other forms of milks were not included. Case reported in 1999 STI 439 Commissioner, Trade Tax Vs. Sarvashri Neera Drinks is also referred wherein it has been held that Badam Milk under Section 4 is covered by tax exempted milk in as much as by such mixture/ mixing milk shall remain only milk. In the case of Commissioner, Trade Tax Vs. Nainital Milk Produce Cooperative Federation Ltd. -2001 NTN 471 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flavoured milk appears to be covered by the Entry of milk. It is relevant to mention that some persons like less or more quantity of sugar in milk and others like its special flavour. Thus only because of flavour milk shall not become a commodity different from milk. Earlier some Tax Assessment Officers had passed orders imposing tax on toned and other kinds of improved milk, after the said orders were set aside by the Hon'ble Tribunal the matter was referred to the Secretary Committee on which vide Government letter no.K.N.-2-R-01/11-2002-15-(553) dated 17.01.2002 it has been informed that: In the impugned case it has been decided to comply with the judgment of the Hon'ble Tribunal dated 3.4.2001. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed along with the present revision, it is not in dispute that the dealer/assessee has sold flavoured milk and cream milk mixed. The department itself has issued a circular clearly holding that the flavoured milk is covered by the entry 'milk'. In the instant case, the Tribunal has rightly dismissed the appeal filed by the Commissioner while affirming the order of the first appellate authority. The first appellate authority has quashed the proceedings under Section 21 of the Act. Assessee itself has admitted the tax on cream milk mixed and flavoured milk at the rate of 8%. In view of above, the orders passed by the first appellate authority and Commercial Tax Tribunal are upheld. The revision filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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