TaxTMI 
TaxTMI 
2012 (10) TMI 337
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....contending that the item was not covered in any of the specific entries, and therefore, taxable in the residuary entry. The department, on the other hand, contended that the item is classifiable as food article under Entry 47 of the First Schedule and taxable at 12%, the tax demand for the balance, against which the dealer appealed to the higher authority, i.e., Joint Commissioner. The latter, however, upheld the order of the assessing authority, classifying the item as "Food Article" under Entry 47 of the First Schedule. Its appeal to the Tribunal too was similarly rejected. 3. The appellant contends in the pleadings and its counsel urges that the reasoning of the Tribunal that the fruit pulp based drink amounts to a "Food Article" is unacceptable. The counsel submits that reliance placed upon by the lower authorities and endorsed by the Tribunal, on the definition of "food article" under the Prevention of Food Adulteration Act, 1954 was misplaced. It was submitted, in this regard, that the object sought to be achieved by the Prevention of Food Adulteration Act, 1954 is to ensure safety of the consumer and impose minimum standards. However, the objectives of the Delhi Sales Tax....
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....sms may function in all three ways, and essential nutrients, if present in excess, may frequently be metabolized to supply energy. The essential precursors (i.e., the substances from which other substances are formed) of cell materials can be divided into two groups- non-essential nutrients, which can be synthesized by the cell from other materials, and essential nutrients, which, because they cannot be synthesized by the cell, must be supplied in foods. All of the inorganic materials required for growth, together with an assortment of organic compounds whose number may vary from one to 30 or more, depending on the organism, fall into the latter category. Although organisms are able to synthesize non-essential nutrients, such nutrients are frequently utilized directly if present in food, thereby saving the organism the need to expend the energy required to synthesize them." 6. It was argued that the Tribunal's findings consequently cannot be upheld. It was argued in addition that the statute, Delhi Sales Tax Act, 1975in this case, had not clearly classified drinks separately. Learned counsel drew the attention of the Court to the Fourth Schedule to the Act which listed ....
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....herefore submitted that the Tribunal's findings are unexceptionable and do not call for an interference. 10. For a better appreciation of the controversy in this case, it would be necessary to extract the relevant items relating to food drinks, beverages etc. in the Schedules to the Delhi Sales Tax Act, 1975: ITEMS RELATING TO FOOD & DRINKS First Schedule ENTRY NO. Item 33. Meat, fish, fruits and vegetables when sold in preserved form 47. All kinds of preserved food articles when sold in sealed containers ITEMS RELATING TO FOOD & DRINKS Second Schedule ENTRY NO. Item 13. Vegetable, fruits, fish and meat not covered by another entry in any other Schedules appended to the Delhi Sales Tax Act, 1975 ITEMS RELATING TO FOOD & DRINKS Third Schedule ENTRY NO. Item 4. Cooked food served in small dhabas 5. Meat and fish other than canned, preserved, processed, dried, dehydrated, frozen, cooked or sold in sealed containers. 6. Fresh eggs 7. Vegetables and fruits other than canned, preserved, processed, dried, dehydrated, frozen, cooked or sold in sealed containers. 10. Fresh milk and pasteurized....
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....er. It is not taken alone but is to be taken with milk. At the most, it makes a delicious food drink when it is taken along with milk. Merely because it supplies some nourishment and sustenance, it cannot be equated with food-stuff or food provision. It is not used by common people and is not normally taken as food by normal persons. It is, therefore, difficult to accept the contention of the learned Assistant government Pleader appearing for the State that since it is described by the manufacturers themselves as a food drink, it should be regarded as a food-stuff or a food provision. We are, therefore, of the opinion that the Tribunal was right in holding that as Bournvita is neither a food-stuff nor a food provision, it would not be covered by entry 6 of Schedule III but by residuary entry 13 of Schedule II to the Act." 13. It would therefore be evident that the Gujarat High Court had followed the Supreme Court and had adopted the common parlance test to determine whether the term "food stuff" in the fiscal statute, like in the present case, included a malted drink concentrate, i.e. Bournvita. 14. At this stage, it would be necessary to notice the observations of the Sup....
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....ity in its finished state unsavoury and indigestible to a whole class of person whose stomachs are accustomed to a more spicily prepared product. The proof of the pudding is, as it were, in the eating, and if the effect of eating what would other be palatable and digestible and therefore nutritive is to bring on indigestion to a stomach unaccustomed to such unspiced fare, the answer must, I think, be that however nutritive a product may be in one form it can scarcely be classed as nutritive if the only result of eating it is to produce the opposite effect; and if the essence of the definition is the nutritive element, then the commodity in question must cease to be food, within the strict meaning of the definition to that particular class of person, without the addition of the spices which make it nutritive. Put more colloquialloy. "one man's food is another man's poison". I refer to this not for the sake of splitting hairs but to show the undesirability of such a mode of approach. The problem must, I think, be solved in a commonsense way." 15. This Court notices that in Collector of Central Excise V. Parle Exports (P) Ltd.:1988 (38) ELT 741 (SC), the issue involved was wheth....