R.L. Gulati, J.
1. These references under Section 11 of the U. P. Sales Tax Act have been made at the instance of the Commissioner, Sides Tax, Lucknow, on the following question of law :
Whether in the facts and circumstances of the case, 'milk shake' sold by the aforesaid company is an unclassified item which was liable to tax in the assessment year 19G3-64 at 2 per cent, under Section 3 of the U. P. Sales Tax Act and the Additional Revising Authority has erred in law in holding it to be 'milk' exempt from tax under Notification No. ST-3506/X dated 10th May, 1956, issued under Section 4 of the U.P. Sales Tax Act
2. The assessee, Lucknow Co-operative Milk Supply Union Limited, runs a restaurant within the campus of the Lucknow University and in that restaurant, one of the articles sold to the customers is milk shake. The assessee claimed exemption from sales tax on the turnover of milk shake under Notification No. ST-3506/X dated 10th May, 1956. This notification has been issued under Section 4 of the Act arid grants exemption from tax. to certain articles including 'milk and milk products, such as chhena, dahi, khoa, cream and butter'. The Sales Tax Officer did not accept this contention but it has been accepted by the revising authority. The Commissioner of Sales Tax is aggrieved. Hence these references.
3. Milk shake has not been defined in the Act but from the order of the revising authority, it appears that milk shake is prepared by shaking milk with a little sugar and some flavouring article. It is a matter of common knowledge that milk shake is consumed as a substitute for milk. The process of its preparation is also a simple mechanical one. No manufacturing process is involved nor does milk in any way change its composition. Commercially also, milk shake is not different from milk. In our opinion, milk retains its essential character even when it is sold in the shape of milk shake.
4. Entry No. 10, which grants exemption to milk, is not limited to milk only but includes milk products. Milk shake, even if it is not milk, certainly would be a milk product. We are, therefore, clearly of the opinion that the turnover of milk shake is exempt under the aforesaid notification. As milk is covered by the aforesaid notification, it cannot be said to be an unclassified article.
5. We, accordingly, answer the question by saying that milk shake is not an unclassified article and the revising authority was right in holding it to be exempt from tax under Notification No. ST-3506/X dated 10th May, 1956. The assessee is entitled to its costs, which we assess at Rs. 100. There shall be one set of costs only.