2007 (4) TMI 354

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....H. KAPADIA J.-This civil appeal by grant of special leave petition concerns classification dispute. According to the assessee "fryums" fall under item No. 2 of Part I of Schedule II which refers to "cooked food" and in which case the rate of tax is four per cent. On the other hand, according to the department the item "fryums" falls under Part VII of Schedule II to the M.P. Commercial Tax Act, 1994, under which the rate of tax is eight per cent (earlier it was six per cent). The short question, therefore, which arises for determination in this civil appeal is the meaning of the term "cooked food" in the M.P. Commercial Tax Act, 1994. Though the expression "cooked food" has been defined under section 2(g) of the said 1994 Act in this civi....

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....e moved the Madhya Pradesh High Court(1) in Writ Petition under articles 226/227 of the Constitution praying for a declaration that "fryums" be held as "cooked food" liable to tax under entry 4 of Part I of Schedule II of the 1958 Act corresponding to entry 2 of Part I of Schedule II of the 1994 Act. After hearing both the parties the learned single Judge came to the conclusion that "fryums" are "cooked food" liable to be assessed under entry 2, Part I of Schedule II to the 1994 Act. Aggrieved by the decision of the learned single Judge See [2001] 121 STC 595., the department carried the matter in appeal to the division Bench which has confirmed the decision of the learned single Judge. We quote hereinbelow section 2(g) of the M. P. C....

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....ally takes at regular meal hours. In the case of Commissioner of Sales Tax, M.P. v. India Coffee Workers' Co-operative Society Ltd., Jabalpur [1970] 25 STC 43 (MP) the High Court has held that the term "cooked food" excluded meals from description of words under item 9 of Schedule I read with section 10(1) of the M.P. General Sales Tax Act, 1959. That, the term "meal" was not defined under that Act, and therefore, one has to understand that word in terms of common parlance and popular meaning. It was therefore, held that supply of items like ice-cream, toast, fried eggs, vegetable and mutton cutlets did not constitute meals though the said items were also eatables. In the present case we have quoted the definition of the term "cooked ....