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M/S Pradeshik Cooperative Ltd. v. The Commissioner Of Trade Tax U.P. - SALES/TRADE TAX REVISION No. 322 of 1995 [2004] RD-AH 620 (24 August 2004)


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M/s Pradeshik Coop. Dairy Federation Limited. ....Applicant


Commissioner of Trade Tax, U.P., Lucknow. ....Opp.Party


Hon'ble Rajes Kumar, J.

Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 17.04.1995 relating to the assessment year 1982-83.

Following questions have been raised in the present revision:

"1) Whether on the facts and in the circumstances of the case the Tribunal was justified in law in holding that chease and paneer are one and the same things ?

2) Whether on the facts and in the circumstances of the case the Tribunal was justified in law in holding that butter sold by the applicant have been sold in sealed container ?

3) Whether on the facts and in the circumstances of the case the Tribunal was justified in remanding the matter back to the assessing authority but the finding as to whether the stock transfer by the applicant to its depot has been recorded in the books of account of the deport or not and whether correspondence sale has been shown at the depot or not after accepting the stock transfer made by the applicant to its depots ?"

Heard learned counsel for the parties.

I have gone through the order of Tribunal and the authorities below.

Learned counsel for the applicant contended that the paneer is not a chease and being milk product is exempted from tax. I do not agree with the submission of learned counsel for the applicant. Similar question came up for consideration before this Court in the case of Garhwal Paneer Bhandar, Ghaziabad Vs. CTT, reported in 1996 UPTC, 129. This Court held that paneer is commonly known as soft cheese, which is some times called as "cottage cheese" to distinguish it from other varieties of cheese, therefore, paneer is one of the variety of cheese and it can not be said that paneer is not  cheese. Cheese has been specifically excluded from the entry of milk, which is exempted under section 4 of the Act and has been specifically taxed under the entry of "butter cream and cheese" of the notification no.ST-625/X-6(4)-80-Order-83 dated 31.03.1982. In this view of the matter order of Tribunal is upheld.

So far as second question is concerned, Tribunal recorded a finding that the butter is first rapped in the paper and thereafter it is packed in a cardboard, which is sealed and, therefore, Tribunal has held that butter was sold in the sealed container and not loose. Finding of the Tribunal is finding of fact. Learned counsel for the applicant is not able  to assail the finding recorded by the Tribunal. In the case of The Martand Dairy And Farm Vs. The Union of India and others, reported in 35 STC, 629. Apex Court held as follows:

"The expression "sealed container" in Notification No.ST-3506/X dated May 10, 1996, means a container which is "so closed that access to the contents is impossible without breaking the fastening". The expression "seal" in this context does not involve an affixture of the seal of the seller such as impressing a signet in wax, etc., as evidence or guarantee of authenticity. An article maybe regarded as put in sealed containers if it is closed securely in any vessel or container by any kind of fastening or covering that must be broken before access can be obtained to what is packed inside".

In view of the law laid down by the Apex Court, I do not find any error in the view taken by the Tribunal.

So far as third question is concerned, Tribunal has remanded back the matter to the assessing authority to examine the claim of stock transfer. I do not find any error in the order of Tribunal, which requires no interference.

In the result, revision is dismissed.




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