High Court of Judicature at Allahabad
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The Commissioner Trade Tax,U.P. v. S/S Infant Milk Food Factory - SALES/TRADE TAX REVISION No. 672 of 1999  RD-AH 1608 (20 January 2006)
TRADE TAX REVISION NO.672 of 1999.
The Commissioner, Trade Tax, U.P., Lucknow. Applicant
M/S Infant Milk Food Factory, Moradabad. 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 14th June, 1999 relating to the assessment year 1987-88.
Dealer/opposite party (hereinafter referred to as "Dealer") was carrying on the business of Ghee, Butter, milk shake etc. In the original assessment order, the turnover of the flavoured milk shake to the extent of Rs. 1,60,737/- could not be taxed. Assessing authority passed the assessment order under section 22 of the Act on 27th March, 1993 and taxed the manufactured flavoured milk shake at the rate of 8.8 percent, relying upon the decision of this court in the case of M/S Gujarat Cooperative Milk Marketing Federation Ltd., Kanpur Versus Commissioner of Sales Tax reported in 1992 UPTC 31 in which milk shake has been held not milk and milk product and held liable to tax. While passing the assessment order, assessing authority also observed that the flavoured milk shake was sold in a sealed polythene packet. First appeal filed by the dealer was rejected. Dealer filed second appeal before the Tribunal. Tribunal by the impugned order, set aside the order passed under section 22 of the Act. Tribunal held that the dealer claimed that the milk shake was sold in loose form and not in sealed container. According to Tribunal aforesaid factual aspect is disputed issue and involved debate and thus falls outside the purview of Section 22 of the Act.
Heard learned counsel for the parties.
Learned Standing Counsel submitted that under the notification no.ST-911/X-, Dated 31.03.1956 as amendment by Notification No.ST-II-62/X-6 (11)-1980-U.P. Act XV/48-Order-81 dated 30.07.1981, milk shake is specifically excluded from milk and milk product and, thus, it is not exempted under the aforesaid notification. He further submitted that whether milk shake was sold in loose form or in sealed container, it is not covered under the aforesaid notification and the Tribunal has erred in raising the irrelevant dispute that it is not clear that milk shake was sold in sealed container. Learned counsel for the dealer relied upon the order of the Tribunal.
Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.
In my opinion, the order of the Tribunal is not sustainable. Notification No.ST-II-62/X-6 (11)-1980-U.P. Act XV/48-Order-81 dated 30.07.1981 reads as follows.
"Milk (other than condensed milk, milk powder or baby milk) and milk products excluding (1) Products sold in sealer containers, (2) Sweetmeats, (3) Ghee, (4) Butter, cream and cheese, (5) Ice-cream and ice-candy, (6) Kulfi, (7) Milk shake and (8) lassi".
In the aforesaid notification, milk shake is specifically excluded from the milk and milk product. It was not relevant whether they were sold in loose form or in sealer container. In the case of M/S Gujarat Cooperative Milk Marketing Federation Ltd., Kanpur Versus Commissioner of Sales Tax (supra), this court held that milk shake is specifically excluded from milk and milk product and, thus it is not exempted from tax. In the circumstances, in my opinion, there was a clear mistake in granting exemption on the turnover of milk shake, which was contrary to the notification. Tribunal has illegally gone into the issue as to whether milk shake was sold in sealed container or in loose form is a debatable issue, while this aspect of the matter is wholly irrelevant. Milk shake is specifically excluded whether sold in loose form or in sealed container; thus, there was patent mistake, which has been rightly rectified by the assessing authority under section 22 of the Act. Tribunal has erred in setting aside the order passed under section 22 of the Act.
In the result, revision is allowed. Order of the Tribunal is set aside.
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