2019 (5) TMI 573

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....nt and order of the Trade Tax Tribunal dated 05.09.2009. The dispute in the instant revision is confined to rate of tax on cream milk mixed and flavoured milk which are sold by the assessee/ respondent. The revision petition relates to assessment year 2000-01 under the Central Sales Tax Act. Brief facts of the case are that the respondent/ dealer carries on business of manufacture and sale of Cream Milk Mixed and Flavoured Milk. The assessing authority of the respondent-assessee has passed an assessment order on 19.06.2003 accepted the books of account and turnover and has held that the flavoured milk is taxable at the rate of 8%. Thereafter the re-assessment proceedings under Section 21(2) of the Act were initiated on 12.07.2007 and ba....

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....ed in 2017 UPTC 518. Learned counsel for the respondent-dealer has also placed reliance on a decision of this Court in Sales/Trade Tax Revision No.75 of 2007 (The Commissioner, Trade tax, U.P. Lucknow vs. Amrit Vanaspati Co. Ltd, G.T. Road, Ghaziabad) decided on 30.05.2014. In both the above decisions, this Court has held that the flavoured milk sold by the dealer is taxable at the rate of 8%. While deciding the Sales/Trade Tax Revision No.101 of 2017 this Court has examined the decision of the Apex Court in Civil Appeal No. 1146 of 2006. The relevant extract of the said decision reads as under:- "1. After arguing the matter for quite some time, Shri S. Ganesh, learned senior counsel appearing for the appellant, on instructions, seeks ....

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....ourt to decide the same on merits without reference to the period of limitation. Ordered accordingly." The issue in this matter was with regard to the taxability of flavoured milk. At the time when the revision petition was filed the circular dated 27.11.2002 had not been placed before this Court by the department or even by the assessee. The circular reads as here-under:- "Letter No.-Legal-1(1)-M-9(2002-2003) 169/Trade Tax From, Commissioner, Trade Tax, Uttar Pradesh \ To, The Additional Commissioner Grade-1, Trade Tax, Ghaziabad Region, Ghaziabad. Date:Lucknow: November 27, 2002 Dear Sir, Please refer to your letter no. Vidhi-P32440/Dated 16.10.2002 which relates to the application clarifying position of tax liabil....

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....ll be appropriate to take a decision in the light of judgments rendered in the cases of Sarvashri Nainital Milk Produce Cooperative Federation and Sarvashri Neera Drinks. In this regard it is relevant to mention that Shri J.P. Sharma, IAS, Secretary, Dairy Development Department, Government of Uttar Pradesh, Lucknow vide his letter dated 26.2.1999 has sent here some documents which also contains a circular issued by the Government of India, Ministry of Agriculture and Animal Husbandry in which milk has been defined as under: "Milk means cow buffalo, sheep or goat milk or mixture of such milk either in original raw form or is processed as follows or by any other method - Pasteurized, Sterilized, Recombined, Flavoured., Acidified, Skimmed....