TaxTMI 
TaxTMI 
2025 (11) TMI 1690
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....ying its disposal further. In our order of 11 September 2025, we clarified that, as this is an old matter, we will not entertain any requests for adjournments. 3. By the order dated 09 June 2008, the Maharashtra Sales Tax Tribunal has referred the following two questions for the determination by this Court:- (1) Whether on the facts and in the circumstances of the case and on a true and correct interpretation of the provisions in sub-section (2) of Section 52 and sub-section (6) of Section 55 of the Bombay Sales Tax Act, 1959, was the Tribunal legally justified in holding the sales of ice-cream as liable to tax @ 4% by invoking the provisions of Section 52(2) of the Bombay Sales Tax Act, 1959, when in fact the appellant had not ....
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...., granted the Revenue partial relief. The matter was taken up in the Second Appeal, at which stage the Assessee contended that if the product 'ice-cream' was to be classified under C-Part II, Entry 35(1), which entailed payment of duty of 8%, the same must be done with prospective effect given the decision of the Tribunal in the case of Commissioner of Sales Tax, Mumbai Vs. Kwality Frozen Foods Ltd (2009) 19 VST 355 (Bom). 7. The Tribunal was ultimately called upon to decide whether the benefit of determination obtained by Kwality Frozen Foods Ltd. (supra) under Section 52 of the said Act could be extended to the Assessee herein, even though the Assessee had never sought such a determination under Section 52 of the said Act. 8. The Tr....
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....s determination under the said Section would be entitled to the benefit of such determination. Such determination was never intended to apply to any other person or dealer unconnected with the determination proceedings under Section 52 of the said Act. He submitted that this was precisely the view taken in Halward Engineers (supra). He further submitted that Kulko Engineering Works Limited (supra), which was a later decision, does not notice Halward Engineers (supra), and, to that extent, Kulko Engineering Works Limited (supra) is per incuriam and should be held not to lay down the correct position in law. 11. Mr. Takke, without prejudice, submitted that this Court's decision in Kwality Frozen Foods Ltd (supra) had merely approved the ex....
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..... After the Tribunal's decision in this matter, the Division Bench of this Court, on an application made by the Revenue seeking a reference to this Court, has expressly upheld the Tribunal's view that the duty should have been levied only prospectively and not retrospectively. 16. This Court has considered that, for a long time, 'ice-creams' were covered within the entry 'sweets and sweetmeats'. This Court has also considered the impact that an Assessee would have to face if retrospective levy were to be permitted. This is because the assessee, relying on the earlier-years classification, had sold ice cream on the premise that the duty was only 4% and not 8%. Recovery of any additional amount from the customers was entirely unfeasible. A....
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....n of Kulko Engineering Works Limited (supra) appears to be that if the products are the same or identical and there are no other distinguishing features or circumstances, then the Revenue, on the principle of parity, should not be allowed to discriminate or act arbitrarily. Therefore, even if we were to accept Mr Takke's contention that the determination obtained by one person would not benefit some other person or dealer, still, that by itself would not obviate the necessity of the Revenue acting consistently with the principles of equality, parity and non-arbitrariness. 20. In any event, considering the facts in the present case, we do not think that it would be appropriate for us to delve into any further details on this issue or answ....