2005 (3) TMI 448

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....PAL, J.-Leave granted in special leave petitions. 2.. The dispute in this case is whether germinated barley or malt is a cereal for the purposes of three notifications. Malted barley is barley which is soaked in water and upon germination, dried. The first notification is issued under section 3-D of the U.P. Sales Tax Act, 1948, read with section 21 of the U.P. General Clauses Act, 1904, and is dated 30th May, 1975. It provided that with effect from 18th June, 1975, the turnover of first purchases of, inter alia, foodgrains including cereals and pulses but excluding sawan, kodon, mandua, kakun, manjhri (or ankri), kutu, ramkana and paddy would be liable to tax under clause (b) of sub-section (1) of section 3-D at the rates mentioned agai....

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.... the respondent-assessee was that even if the malted barley was not a cereal within the meaning of section 14 of the Central Sales Tax Act, 1956, nevertheless it continued to be a foodgrain or cereal for the purposes of the three notifications. In the further alternative it was urged by the respondent-assessee that in any case it was the duty of the taxing authority to tax the assessee under the proper entry if the contention of the assessee had been negatived by the authorities. The five rectification applications were disposed of by judgment and order dated 21st September, 1994. The High Court held that the determination of the alternative cases might require evidence and, therefore, it was appropriate to send the case back to the Sales T....

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....ley malt was not a cereal for the purposes of section 14 of the Central Sales Tax Act. It was clearly envisaged by the order of remand that despite such finding, barley malt could still be a cereal or a foodgrain for the purposes of the three notifications. 11.. Counsel for the appellant then referred to various other dictionaries to contend that malt is neither cereal nor a foodgrain. The grain, according to the appellant, is a seed which is yet to be germinated. We have considered the various dictionary meanings referred to by the appellant. In none of them has the word "grain" been limited to an un-germinated seed. On the contrary, malt has been described as a foodgrain. 12.. The notifications by which the rate of tax has been fixe....