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Milco Ice-cream Co. Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Revision No. 8 of 1979
Judge
Reported in[1982]49STC294(All)
AppellantMilco Ice-cream Co.
RespondentCommissioner of Sales Tax
DispositionRevision allowed
Excerpt:
- .....sales tax act, the only question of law involved for our consideration is whether 'ice-cream' is milk product and its turnover is exempt from sales tax under section 4 of the u.p. sales tax act.2. there were two notifications issued from time to time by the state government under section 4 of the act. in the notification published in the u.p. gazette on 31st march, 1956, entry no. 10 of list ii described 'milk' and 'milk products' such as chhena, dahi, khoa, butter and cream, but excluding (i) products sold in sealed containers and (ii) sweetmeats, as being the goods which were to be exempt from payment of tax. in the year 1965 another notification in exercise of the powers under section 4 of the act was published in the u.p. gazette on 16th february, 1965, granting exemption to 'milk'.....
Judgment:

Prem Prakash, J.

1.In this revision which has been heard under Section 11(1) of the U.P. Sales Tax Act, the only question of law involved for our consideration is whether 'ice-cream' is milk product and its turnover is exempt from sales tax under Section 4 of the U.P. Sales Tax Act.

2. There were two notifications issued from time to time by the State Government under Section 4 of the Act. In the notification published in the U.P. Gazette on 31st March, 1956, entry No. 10 of List II described 'milk' and 'milk products' such as chhena, dahi, khoa, butter and cream, but excluding (i) products sold in sealed containers and (ii) sweetmeats, as being the goods which were to be exempt from payment of tax. In the year 1965 another notification in exercise of the powers under Section 4 of the Act was published in the U.P. Gazette on 16th February, 1965, granting exemption to 'milk' and 'milk products' but excluding (i) products sold in sealed containers, (ii) sweetmeats, (iii) ghee and (iv) butter and cream.

3. Placed together it would appear that the illustrative list which had been given in the notification of 1956 was taken out and all 'milk and milk products' excluding those specified in the second notification were declared goods the turnover of which was to be exempted from tax under Section 4 of the Act.

4. The question that arises is whether 'ice-cream' is a milk product or not. The word 'milk product' has not been defined in the notification but a particular commodity can be said to be a 'milk product' if it is produced from it. 'Ice-cream' according to the learned counsel for the department has in addition to the milk, dry-fruits, essence and gum. But the addition of these things does not, in my opinion, change the main constituent which is 'milk'. The main (sic) being milk and nothing else, it remains a 'milk product'. A similar matter came before the Delhi High Court in Kwality Ice Cream Co. v. Sales Tax Officer, New Delhi [1974] 34 STC 396, where at page 401 it was observed that 'the physical state or even the composition may change but so long as the essential character of the article continues to remain the same, it has to be taxed as that commodity alone'. After an exhaustive consideration it was held that the sale of ice-cream is exempt from assessment to sales tax. I am in respectful agreement with the view taken therein. The entry has to be interpreted in the manner in which it is understood in common parlance. 'Ice-cream' as everybody knows is a milk product. If in the process of preparation some essence, flavour or gum is mixed it does not cease to be a 'milk product'. Consequently 'ice-cream' is exempt from assessment by virtue of the notification dated 16th February, 1965, issued by the State Government in exercise of the powers under Section 4 of the U.P. Sales Tax Act.

5. For the reasons stated in the above, the revision is allowed. Let a copy of this judgment be sent to the Judge (Revisions) to take steps in conformity with this decision. The revisionist shall get Rs. 100 (one hundred) as costs from the department.


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