2006 (7) TMI 585

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....eads as follows: "12. Cooked food including coffee, tea and like articles served in a hotel, restaurant or any other place not falling under entry 40 of the First Schedule and when the turnover does not exceed Rs. 5 lakhs." The Appellate Assistant Commissioner as also the Tribunal have found that ice-cream is not "cooked food". In fact, the finding of the Tribunal is as follows: ". . . According to the appellant, ice-cream is a cooked food and the place where ice-cream and fruit juice is supplied is a restaurant and hence they need to pay only the licence fee under section 5B of the KGST Act. The contention of the appellant is that ice-cream and fresh fruit juice are beverages served to customers for quenching, hunger and thirst. However....

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....ng it at that temperature for 10 minutes which the mix passes through the homogenizer where the fat in the mix gets dispersed into minute particles. The homogenized mix is then chilled in the chiller after hich it is kept in the ageing vats in which the temperature is maintained at approximately +4 degree centigrade for about 10 hours. To the aged ix depending on the requirements, colours, essences and flavours are added and agitated for homogeneity. Mix is then poured into soft ice-cream machine where it gets churned, expands in volume and comes out as soft ice-cream at -6 degree centigrade, which is then served in cups and plates to customers on table in the parlour according to their requirements. It is contended on behalf of the petit....

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....etc., whose total turnover per year is less than rupees two lakhs, and if that be so, a dealer running a cool drink house having turnover of less than rupees two lakhs would fall within the benefit of exemption granted by the aforesaid G. O., from payment of sales tax on the turnover. For these reasons, we are of the view that cool drink house, ice-cream parlours, etc., do fall within the benefit of exemption granted in G. O. Ms. No. 1025." We are afraid that it is inapposite on the part of the petitioner to draw any sustenance for deciding the issue involved in this case, the question pointedly arising in these cases being whether ice-cream is cooked food. The decision in Philips Smith v. Additional Sales Tax Officer [1984] 56 STC 142 (K....

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....n of the word "cook" as referred to already, "cooked food" must be treated as food which is prepared by heating. No doubt, learned counsel for the petitioner referred to the process of making ice-cream which we have already adverted to, to contend that in making ice-cream, heating is involved. We would, however, consider this contention as misplaced. It may be true that there is some process of heating involved. But, it is not to be classified as "cooked food" merely for the reason that the process of making ice-cream involves heating. In fact, the apex Court considered the question as to whether "biscuit" is to be considered as "cooked food" in its decision in Annapurna Biscuit Manufacturing Co. v. Commissioner of Sales Tax, U. P., Lucknow....