TaxTMI 
TaxTMI 
TaxTMI 
2015 (5) TMI 1047
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....the extent of Rs. 1,41,375 and Rs. 3,11,650 for the assessment years 1982-83 and 1983- 84, respectively. The controversy, in short, is whether the ice-cream is a milk product or not. The claim of the assessee is that, it being a milk product, is exempt under the Sales Tax Act. However, the assessing officer was of the view that under the notification dated March 6, 1964, ice-cream is not defined and therefore, it is not a milk product and thus is exigible to tax under the Rajasthan Sales Tax Act and accordingly levied tax at eight per cent. However on an appeal filed, the Deputy Commissioner (Appeals) was satisfied with the arguments advanced by the assessee and held that it is a milk product, however, the Deputy Commissioner (Appeals) directed to levy tax at five per cent. as against eight per cent. which was assailed before the Rajasthan Sales Tax Appellate Tribunal by the assessee and the Tribunal vide impugned order not only upheld the findings of the assessing officer but also held that the tax would be levied on the same rate as observed by the assessing officer. Mr. Sarvesh Jain, counsel for the petitioner, contended that ice-cream is basically....
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....od". She further contended that plain, simple meaning is required to be seen while analysing a matter like this and once the Legislature did not include ice- cream as a part of milk product though dahi (curd), khoa and cream and fresh milk were part of the exemption but ice-cream being entirely a different product, is certainly liable for taxation and accordingly has rightly been taxed. She placed reliance on the judgment in the case of Annapurna Biscuit Manufacturing Co. v. Commissioner of Sales Tax, U. P., Lucknow [1981] 48 STC 254 (SC); (1981) 3 SCC 542, State of Tamil Nadu v. Pyare Lal Malhotra [1976] 37 STC 319 (SC); [1976] 1 SCC 834 and Commissioner of Sales Tax v. Hira Ice Candy [1979] 44 STC 158 (All). I have considered the arguments advanced by the counsel for the parties and perused the material available on record. In my view, ice-cream can certainly be said to be a product of a milk and certainly would be covered within the definition of a milk product, dahi (curd), khoa and cream. It is true that ice-cream as such is not mentioned anywhere but when ice cream is prepared basically by ingredient of milk and cream, I have no hesitation in holding that ice-cream would cer....
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....admittedly a product of milk or curd and must be held to be exempt from payment of tax. The Delhi High Court in the case of Kwality Ice Cream Company and Restaurant [1974] 34 STC 396 (Delhi) considering a case of ice-cream held as under (pages 406 to 408 in 34 STC): "It has been finally contended on behalf of the respondents that if all varieties of ice-cream are treated as milk products and, therefore, exempt from assessment, then even ice-cream, which has no milk content or very little milk content in it, will also be eligible for exemption. We have already referred to the standards prescribed by the Prevention of Food Adulteration Rules for ice-cream and we have proceeded on the basis that the ice-cream which comes under the category of milk products within the meaning of entry No. 12 is ice- cream which conforms to the standards prescribed under the said Rules. There is no difficulty in excluding from entry No. 12 the so- called ice-cream, even if any, which has absolutely no milk content, because such an ice-cream cannot be called a milk product. There would, however, be some difficulty in respect of ice-cream which while having some milk content, however, does ....
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....n which it is understood in common parlance. Ice-cream, as everyone knows, is a milk product and there was hardly any need to indulge in uncalled for hair-splitting and making an appeal to the technical rules of interpretation. I am entirely in agreement with my learned brother that ice-cream being a milk product within the meaning of entry No. 12 in the Second Schedule of the Act is exempt from assessment under the Act; and that writ petitions have to be allowed and the questions posed in the references have to be answered in the manner in which they have been answered by him, without any order as to costs." The honourable apex court in the case of Pio Food Packers [1980] 46 STC 63 (SC) was considering a case where pineapple fruit was processed into pineapple slices for the purpose of being sold in sealed cans and came to the conclusion that although a degree of processing is involved in preparing pineapple slices from the original fruit, the commodity continues to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it, on adding sugar to preserve it. This court in the case of Centuary Ecka v. State of R....
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....d glucose and dried liquid glucose). Maltodextrin, eggs, fruits, fruit juice, preserved fruits, nuts, chocolate, edible flavours and permitted food colours. It may contain permitted stabilizer and emulsifiers not exceeding 0.5 per cent. by weight. The mixture shall be suitably heated before freezing. The product shall contain not less then 10 per cent. milk fat, 3.5 per cent. protein and 36.0 per cent. total solids". Even these rules provide that the main ingredient being milk and when frozen after mixing becomes ice-cream. The judgments relied upon by the counsel for the Revenue are distinguishable on facts inasmuch as in the case of Hira Ice Candy [1979] 44 STC 158 (All), the case related to ice-candy which was neither found as a cooked food or confectionery and thus found as unclassified item, liable to be taxed. 17.1 The case of Annapurna Biscuit Manufacturing Co. [1981] 48 STC 254 (SC); 1981) 3 SCC 542, related to biscuits as to whether it is a cooked food or otherwise. The facts in the case of Pyare Lal Malhotra [1976] 37 STC 319 (SC); [1976] 1 SCC 834, was relating to iron and steel scrap and therefore even not re....