D. M. Chandrashekhar, J. - The Additional Judge (Revisions) Sales Tax, Meerut, has under section 11(3) of the U.P. Sales Tax Act, 1948 (hereinafter referred to as the Act), referred the following question of law to this Court :
'Whether on the facts and in the circumstances of the case, biscuits come under the category of :
(A) Cooked food :
Taxable @ 2% vide entry No. 1 of notification No. S.T. 3612/X-900(21) - 69 dated 1.7.1969, or
(B) Confectionery :
Taxable @ 3% under entry No. 5 of the aforesaid notification, or
(C) Unclassified item :
at the general rate of tax under Section 3 ?'
2. The question whether or not biscuit comes under the category of confectionery, is no longer res integra as a Division Bench of this Court has held in M/s. Annapurna Biscuit Mfg. Co. vs. State of U.P. (1974) U.P. Tax Cases (620) that biscuit is not an article of confectionary. So the only surviving question is whether biscuit comes under the category of cooked food or forms an unclassified item.
3. Under the notification of the U.P. Government dated 1.7.1969 issued under the Act, cooked food is liable to tax at the rate of 2%. Under Section 3 of the Act unclassified items are subject to tax at 3%.
4. The Learned Standing Counsel contended that though biscuit is a kind of food, if that word is understood in its widest sense and biscuit is prepared by baking which involves application of heat, it, (biscuit) cannot be classified as cooked food since in common parlance it is not understood as being an item of cooked food.
5. On the other hand the learned counsel for the assessees contended that since biscuit is undoubtedly an article of food and it is prepared by applying heat, there is no reason why it should not be regarded as cooked for the purpose of the Act.
6. The term cooked food would no doubt in its wider meaning include every article of food which is cooked by the application of heat. But as, observed by the Supreme Court in State of Bombay vs. Virkumar (A.I.R. 1952 S.C. 335 at 337) where an expression occuring in a statute is capable of a wider as well as a narrow meaning, the question whether the wider meaning or the narrow meaning should be given to that expression would depend upon the context and the background.
7. In the Hindi version of the aforesaid Government notification the Hindi words used for cooked food are Pakaya Hua Bhojan. Significantly neither the word Aahar nor the term Khadya Padarth has been used in that notification. In common parlance the term cooked food or Pakaya Hua Bhojan is generally understood as food which is cooked and is taken in a meal or Bhojan, i.e. breakfast, lunch or dinner. Biscuit is generally taken as a snack or along with tea and is not generally an item of food for a meal (Bhojan). Taking the meaning of the term cooked food (Pakaya Hua Bhojan), as under-stood in common parlance, biscuit does not, in our opinion, come under the category of cooked food.
8. Hence our answer to the question referred to this Court, is that biscuit does not come either under the category of cooked food (Pakaya Hua Bhojan) or confectionery, but is only an unclassified item subject to tax at the general rate under section 3 of the Act.
9. As the answer to the above question is not free from difficulty, we direct the parties to bear their own costs in this reference.