D. M. Chandrashekhar, J. - At the instance of the Revenue, the Additional Judge (Revisions) Sales Tax, Bareilly Range, has, under Section 11(4) of the U.P. Sales Tax Act, 1948, (shortly called the Act) referred to this Court the following question of law :
'Whether on the facts and in the circumstances of the case the biscuits and confectionery sold by the assessee could be said to be biscuits and confectionery sold in sealed containers ?'
2. The above question arose in the assessment of the respondent herein who is a manufacturer of biscuits. The assessee claimed that its turnover of sales of biscuits was taxable at the rate of 2% only in view of Notification No. ST. -3128-X-1012(4)- 1965, dated July 1, 1966, issued by the Government of Uttar Pradesh under the Act. Under that notification, with effect from July 1, 1966, cooked food including sweetmeats and confectionery other than that sold in sealed or tinned containers, is liable to sales tax at the rate of 2%. The Sales Tax authorities did not accept the assessees claim that biscuits manufactured and sold by it, were taxable at 2% only. They held that biscuits manufactured by the assessee were sold in sealed containers and hence could not get the benefit of the lower rate of Sales Tax under the aforesaid Notification.
3. The controversy between the parties was whether or not biscuits wrapped in special packing paper, closed with gum at the ends or sides of the paper packets and with labels bearing the trade mark of the manufacturer pasted at those ends, can be regarded as biscuits sold in sealed containers. Both the assessee and the Sales Tax Authorities proceeded on the assumption that biscuit comes under the category of cooked food.
4. In S.T.R. No. 437 of 1973 decided on 2-8-1976, we have held that biscuit does not come under the category of cooked food. In the light of the aforesaid ruling, it becomes immaterial for the purpose of the rate of Sales Tax whether the packets in which biscuits are sold, are or are not sealed containers because the benefit of the lower rate of Sales Tax will not be available to biscuit since it does not come in the category of cooked food. Hence it becomes unnecessary to decide whether the special paper packing in which the biscuits manufactured by the assessee are sold, can be regarding as sealed containers. In the circumstances, we dicline to answer the question referred to us.
5. In the circumstances of the case there will be no order as to costs in this reference.