TaxTMI 
TaxTMI 
1970 (11) TMI 97
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.... are supplied to the customers in the premises of the eating house of the assessee. But, some customers prefer not to consume these articles at the premises of the eating house and occasionally take away these articles with them outside the premises of the eating house. On such occasions jalebis are supplied either wrapped in paper or arranged in a basket, while dal and shak and tea are supplied in customers' own utensils. 3.. The assessee was assessed for the purpose of sales tax for the S.Y. 2019, the corresponding period of the Gregorian calendar being from 29th October, 1962, to 17th October, 1963. Now, according to entry 14 of Schedule A attached to the Bombay Sales Tax Act, 1959, as it read at the relevant time, if cooked food "is served at one time at a price of not more than one rupee for consumption at or outside the eating house", it would be exempt from sales tax. During the course of the assessment proceedings, the concerned Sales Tax Officer found that the jalebis supplied by the assessee at one time at a price of not more than one rupee per person and allowed to be taken outside the assessee's eating house was worth Rs. 36,000 per year, while dal and shak supplied ....
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....re, cooked food and non-alcoholic drinks, in order to come within the purview of entry 14 of Schedule A must be served at table by the concerned restaurant or the eating house at its own premises or outside the said premises at the rates specified per person. The Tribunal further held that in case of jalebis, dal, shak and tea taken away by the customers outside the premises of the restaurant or the eating house, no "service " was rendered by the assessee and, therefore, it cannot be said that these articles were served for consumption within the meaning of entry 14. 5.. Being aggrieved by this decision of the Tribunal, the assessee has preferred this reference. Following is the question of law, which is referred to this court by the Tribunal for opinion: "Whether on the facts and in the circumstances of the case, the sale of jalebis by wrapping them in paper or putting them in basket and of dal, shak and tea by putting them in the customers' utensils at a price of not more than Re. 1 per person for consumption by the customers outside the restaurant, are covered by entry 14 of Schedule A to the Bombay Sales Tax Act, 1959." 6.. Before attempting to discuss the merits of th....
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....owing aspects (1) It exempts "cooked food" (excluding ice-cream and kulfi) and non-alcoholic drinks, not containing ice-cream. (2) It attaches a condition for exemption by providing that they should be "served at one time at a price not more than rupee one per person for consumption". (3) It provides for a situs by saying that the said service for consumption should be at or outside any "eating house, hotel, restaurant, refreshment room or boarding establishment". (4) It carves out an exception by providing that such eating house, etc., should not be a "shop or establishment conducted primarily for the sale of sweetmeats, confectionery, cakes, biscuits or pastries". 7.. We find that this court had an occasion to consider this entry in Govindshram Hotel v, Tie State of Gujarat[1966] 17 S.T.C. 100., where this entry is explained in the following terms: "It is clear on a plain reading of the entry that the following conditions must be satisfied in order to attract the applicability of the entry, namely: (i) the goods sold must be cooked food and non-alcoholic drinks (ii) they must be served at one time at a price of not more than one rupee per person; (iii) the....
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....basket to be carried and consumed at his house, it, none the less, amounts to "service" within the meaning of the entry and, therefore, it is wholly immaterial if the articles in question are not served at one of the tables in the restaurant or the eating house and consumed there within the sight of the management of the restaurant. 10.. On the other hand, the contention of the department is that the service, which is contemplated by the entry, is the service "for consumption" and such service can be effected only at one of the tables of the restaurant and not at its counter. According to the department, service at the counter amounts to sale but, since such sales are not covered by the exemption provided by entry 14 of Schedule A, the assessee is liable to pay tax on the turnover represented by such sales. 11.. In view of this controversy between the parties, a short question which arises to be determined is what type of service is contemplated by the disputed entry. In other words, what the Legislature means when it says that the goods in question should be "served.........for consumption". This takes us to the primary meaning of the verb "serve" and its derivative noun "se....
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....ely outside the eating establishment but where food and nonalcoholic drinks were served by them at other places or though served at the eating establishment were taken away by the customers for consumption elsewhere, the sales were not exempt from tax. Now, by the very nature of the business they could not possibly maintain separate accounts in respect of these two categories of sales, and the sales tax authorities, therefore, used to estimate the taxable sales by reference to such uncertain and undeterminative factors as the number of tables in the area of the eating establishment, the number of waiters employed, the area of the owners of eating establishments, etc. This caused great hardship to the owners of eating establishments and often resulted in unfair and unjust taxation and moreover there was really no valid or cogent reason to differentiate between sale of food and non-alcoholic drinks for consumption at the eating establishment and sale of food and non-alcoholic drinks for consumption elsewhere so long as the basic condition was satisfied, namely, that the cost of food and nonalcoholic drinks consumed at one time should not exceed one rupee per person. The Legislature, ....
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.... context in which they are found used in the entry. In this connection, we find some very pertinent observations at page 1139 of Corpus Juris Secundum, Volume 79. It says: "The word 'service' has a multiplicity and a variety of meanings and different significations. It is not a simple word with a simple meaning, leaving no room for construction, but rather it is a broad term of description, which varies in meaning according to the sense in which it is used and the context in which it is found, and the sense in which it is used must be determined from the context. Thus, the courts have found it impracticable to attempt a definition by which to test every case that may arise." 15.. In spite of the above referred difficulty in giving any general or comprehensive definition of these terms, it would be of some advantage to refer to the dictionary meanings which are given to them by some wellknown authors. We may first refer to Webster's Dictionary. That dictionary at page 1658 gives more than 20 meanings to the verb "serve" and 22 meanings to the noun "service". It is not necessary to repeat all these different meanings which are given in the dictionary but the meanings of the ver....
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....haracter of a service which is rendered "for consumption". A service which is rendered "for consumption" of a particular article postulates an arrangement which enables the customer to avail of the facilities which are ordinarily required to consume the said article. These facilities ordinarily consist of arrangement of necessary plates and dishes on a table at a place and in the atmosphere suitable for eating. These facilities would also include the services of some waiters who would look after other needs of the customer to whom the articles are offered "for consumption". These requirements have to be satisfied if a service is "for consumption". Therefore, the pertinent question which arises to be considered is whether any of these requirements can be satisfied if the service is to be made at the counter of the concerned eating establishment. Looking to the facts of this case, it is evident that the service which is to be rendered at the counter would essentially be the service "for delivery" and not "for consumption" of the articles in question. 16.. In our opinion, therefore, the fact that the word "served" is used in the context of the expression "for consumption" supplies ....
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....81." Again at page 1141 of the same volume, the following observations are found at foot-note No. 8: "The sale of food by restaurants is usually referred to as 'service' although an actual sale is involved: Central Power & Light Co. v. State, supra." The law reports are not before us but we find that the observations which are quoted above do lend a general support to the view which we are taking. 20.. Shri Modi, who appeared on behalf of the assessee-applicant contended that if the word "served" connotes "service at the table", it was not necessary to connect that word with the idea of "consumption" by using the words "for consumption". We do not find that by using the words "for consumption" the Legislature has said anything which is redundant because the idea of service at the table is connoted by necessary implication only by the use of the words "for consumption". 21.. Apart from the above referred dictionary meanings and the observations found in Corpus Juris Secundum, we find that it would also be useful to apply the common parlance test, which is applied by the Supreme Court in the case of Ramavatar Budhaiprasad v. The Assistant Sales Tax Officer, Akola, and ....