Prem Prakash, J.
1. This rule in reSectionision has been obtained by the Commissioner, Sales Tax, U. P., Lucknow, under Section 11(1) of the Act to set aside the order of the Judge (Revisions) exempting the turnover of kulfi and lassi in terms of the notification dated 31st March, 1956, issued by the State Government in exercise of the powers conferred by Section 4 of the U. P. Sales Tax Act. In List II at serial No. 10, 'milk and milk products such as chhena, dahi, khoa, butter and cream but excluding (1) products sold in sealed containers; and (2) sweetmeats' were exempted from payment of tax. The item at serial No. 10 is illustrative and not exhaustive. Kulfi and lassi in the common parlance and having regard to their components are milk products and, therefore, they fall within the purview of the exemption given by the State Government by virtue of the notification dated 31st March, 1956.
2. It so happened that on 1st December, 1973, the State Government in exercise of the powers under Sub-section (2) of Section 3-A of the U. P. Sales Tax Act declared that the turnover in respect of the goods mentioned in the schedule shall be liable to tax at all points of sale at the rate specified against each in column III of the said schedule. In the schedule at serial No. 17 there is the item 'Hot and cold drinks, ice-cream, kulfi, milkshake, lassi, beverages, squashes or sharbat, when served to customers'. By this notification issued in exercise of the powers under Sub-section (2) of Section 3-A, the turnover of the aforesaid goods was made taxable when such goods were served to customers.
3. Counsel for the department strenuously contended before me that the delegated authority, namely, the State Government having declared that the turnover of kulfi and lassi would be taxable at the point of sales from 1st December, 1973, the turnover of the assessee with respect to such goods after 1st December, 1973, cannot escape from the liability to pay tax. The counsel appearing on behalf of the assessee has maintained that the exemption given by the notification dated 31st March, 1956, being still in operation, the goods in question continued to be exempted from payment of tax until the said notification is rescinded or modified.
4. A fiscal statute like the one before me has to be interpreted strictly. If there is any ambiguity or doubt, it should be resolved in favour of the subject. There is no equity about tax. The taxing liability must be express and absolute. In the present case, the specification of the goods for purposes of Section 3-A(2) is one thing, but whether or not such goods would be exempt from tax is the power conferred upon the State Government under Section 4 of the Act. So long as the exemption continues, the dealer can certainly urge and with justification that the mere specification of the goods under Section 3-A or declaring the point of sale at such turnover liable to tax would not take away the exemption from payment of tax which the goods enjoyed by virtue of the exercise of power by the State Government under Section 4 of the Act. The operating fields of the two sections, namely, sections 3-A and 4, are distinct and separate. Section 3-A by itself cannot override the power under Section 4. On the other hand, if certain goods have been classified for purposes of Section 3-A and the point of tax has also been declared by the State Government, if such goods had been exempted from sale, the department cannot contend that the exemption should not be construed in favour of the assessee. If the State Government intended to tax the turnover of kulfi and lassi, it was well nigh possible for them to amend the notification issued under Section 4 on 31st March, 1956. The State Government has not chosen to do so. It cannot, therefore, be said that there was any intention of the State Government to withdraw the exemption available to the dealers of kulfi and lassi on the date the notification of 1973 was issued.
5. For these reasons, I must agree with the view taken by the Judge (Revisions).
6. In the result, the revisions fail and are hereby dismissed. The department shall pay Rs. 100 as costs to the assessee in each of the two cases. Let a copy of this order be sent to the Judge (Revisions) under Section 11(8) of the Act.