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C.S.T. v. M/S R.L.B. Co. - SALES/TRADE TAX REVISION No. 121 of 1994  RD-AH 894 (24 September 2004)
Court no. 55
Sales Tax Revision no. 121 of 1994.
Trade Tax Revision no. 637 of 1996. .
Commissioner of Sales Tax, U. P. Lucknow.........................Revisionist.
M/S R. L. Birendra Company, Meerut. ... Respondent.
Hon'ble Rajes Kumar, J.
These two revisions under Section 11 of U. P. Sales Tax Act (hereinafter referred to as Act) are directed against the orders of Tribunal dated 25.8.1993 and 16.12.1995 relating to the assessment years 1986-87 and 1988-89 respectively.
The only dispute relates to taxability of Gwar Flour. According to the dealer, Gwar flour , was not liable to tax being Gwar and further being Cattle Fodder. Assessing Authority had not accepted the plea of dealer and levied tax as an unclassified item. First appeal filed by the dealer was rejected. Tribunal allowed the appeal filed by the dealer.
Heard Counsel for the parties.
Tribunal held that Gwar was exempted under Section 4 of the Act and Gwar and Gwar flour was one of the same commodity and therefore, no tax could be levied on the Gwar flour. Tribunal further held that Gwar flour is used as Cattle Fodder and therefore, it is not liable to tax. For coming to the conclusion that it is used as feed of cattle. Tribunal relied upon a "Dainik Jagaran" news paper report dated 15.12.1991, in which, it was published that after manufacturing gum from Gwar residue part is made as Gwar Korma Choori which is used as Cattle Fodder. Following the decision for the year 1986-87 in the appeal for assessment year 1988-89, Tribunal held Gwar Flour as Cattle Fodder. Tribunal however, observed that after removing upper layer of Gwar, lower portion is being crushed and made powder which comes under the category of Cattle Fodder and is not used for any other purpose. In the assessment year 1986-87, it was mentioned that the dealer purchased Gwar Gum flour, rejected G Powder, rejected and crushed Gwar flour and Gwar Powder from M/S Plomaun Industries, Ahmedabad. Submission of learned Standing is that in view of decision of Hon'ble Supreme Court in the case of ajasthan RRoller Flour Mills Association and another vs. State of Rajasthan and others reported in 1993 UPTC page 1297, in which, it is held that Wheat flour, maida and suji are different commodities from wheat, Gwar flour and Gwar can not treated as a same commodity. He further submitted that without ascertaining the nature of commodity sold by the dealer, Tribunal merely on the basis of news paper report treated the Gwar flour as Cattle Fodder. Learned Counsel for the dealer submitted that the finding of Tribunal that Gwar flour is Cattle Fodder and is not used for any other purpose is the finding of fact. He further submitted that in generic sense the expression, ''Cattle Fodder' is inclusive of everything that is fed to Cattle including damaged Wheat and since Gwar Flour is fed by cattle, therefore, it falls under the "Cattle Fodder." In support of his contention, he relied upon the decision of Apex Court in the case of Commissioner of Sales Tax, U. P. Vs. M/S Ram Chandra Asha Ram reported in 2000 UPTC page 636 .
Having heard learned Counsel for the parties and perused the order of Tribunal and the authorities below. In the case of Rajasthan Roller Flour Mills Association and another vs. State of Rajasthan and others (supra) it has been held that Wheat flour, maida and suji are different commodities from wheat, therefore, the view of Tribunal that Gwar Flour and Gwar are the same commodity, can not be accepted. So far as the view of Tribunal that Gwar Flour is a Cattle fodder needs reconsider. In my opinion before relying upon the news paper report reported in "Dainik Jagaran", Tribunal should examine the nature of product and should also consider what is the basis of news paper report. Newspaper report says that from Gwar, Gum is manufactured and residue is made Gwar Korma Choora which is used as food of Cattle while in the order of Tribunal for the assessment year 1987-88 and 1988-89, it is mentioned that after the removal of upper layer from Gwar, lower portion is being crushed and made powder which is used as a food of Cattle. Assessment order for the assessment year 1986-87 says that the dealer had purchased Gwar Gum floor, rejected G Powder, rejected and crushed Gwar floor and Gwar Powder M/S Plomaun Industries, Ahmedabad. Therefore, nature of product which is called as Gwar Flour is not clear. What has to be considered is that whether the Gwar Flour sold by the dealer, is fed by the Cattle. In my view, this aspect of the matter has not been properly examined. Notification relating to Cattle Fodder dated 5.6.1985 reads as follows:-
Notification no. ST-II-3714/X-6(1)/85-U.P. Act 15/48-Order-85 dated 5.6.1985
"Cattle fodder including green fodder, chuni, bhusi, chhilka, chokar, javi (popularly known as ghurjai), gowar, de-oiled oil cake, de-oiled rice polish, de-oiled rice bran or de-oiled rice husk, but not including oil cake (khali), rice polish, rice bran or rice husk.
The aforesaid Notification came up for consideration before the Apex Court in the case of Commissioner of Sales Tax, U. P. Vs. M/S Ram Chandra Asha Ram (supra), Apex Court held as follows:-
"What is exempted under the notification of 5th June,1985 is cattle fodder. In generic sense the expression "cattle fodder" is inclusive of everything that is fed to cattle including damaged wheat. In the decision relied on by the learned Counsel for the appellant, this aspect is noticed but in the particular case fodder was defined as "fodder except cotton seed and oil cakes". In the present case, there is no such exclusion of the damaged wheat that is processed and used as for the cattle. If that is so, we do not think that there is any justification to interfere with the view taken by the High Court. The appeal is dismissed. However, in the circumstances of the case three shall be no order as to costs."
Relying upon the aforesaid decision of Apex Court, in my view, "Cattle Fodder" includees everything that is fed to cattle whether in rough form or in concentrate form unless it is specifically excluded from the Cattle Fodder under the Notification. In the circumstances, the matter is remanded back to the Tribunal to decide the appeal afresh in the light of observations made above. Tribunal may invite evidences from the parties before coming to the conclusion that whether the Gwar Flour is fed to Cattle or not, if it is fed to Cattle, it is not liable to tax.
In the result, both the revisions are allowed. Order of Tribunal are set aside and the matter are remanded back to the Tribunal to decide the appeal afresh in the light of observations made above.
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