1991 (6) TMI 233

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.... Tax Act, 1969?" The abovesaid question has been referred to this Court at the instance of the Revenue in the following facts and circumstances: The assessee, Ms. Chunilal Mayachand Mehta, had sought the determination under section 62 of the Act in respect of the three products, namely, (i) Nestle Cerelac, (ii) Nestle Nestum Baby Cereal, and (iii) Nestle Nestum, as to what rate of tax would be payable on the sales of the abovesaid products. The Deputy Commissioner concerned had held that the product No. (i) was a vitaminised infant food sold in a sealed container, within the meaning of entry 26(2) of Schedule II, Part A, to the Act. It may be mentioned here that in this reference we are not concerned with the abovesaid article. Anyhow....

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.... Court in State of Gujarat v. Sarabhai Chemicals [1971] 27 STC 170, in which a reference to the Supreme Court decision in State of Bombay v. Virkumar Gulabchand Shah AIR 1952 SC 335 has been made. The Supreme Court has laid down a test while deciding as to whether a particular preparation or commodity can be said to be a food or food-stuff. The Supreme Court has stated thus, while deciding the abovesaid question: "So far as 'food' is concerned, it can be used in a wide as well as a narrow sense and, in my opinion, much must depend upon the context and background. Even in a popular sense, when one asks another, 'Have you had your food?', one means the composite preparations which normally go to constitute a meal-curry and rice, sweetmeats....

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....ivision Bench of this Court, it appears very clearly that, the abovesaid two articles or commodities would not fall within the definition of food-stuff so as to cover them with the entry as suggested by the Revenue. It requires to be appreciated that the Division Bench of this High Court was concerned with a product known as "Limical". The abovesaid product as it appears very clearly from the judgment rendered by the Division Bench was being used for the persons who intend to reduce their weight and who were seeking a cure for the obesity. But anyhow the principle laid down in the abovesaid case remains the same and the test put forth by the abovesaid case law can be made applicable to the facts of the instant case also. Ordinarily th....