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Dayal Singh Kulfiwale Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Reference No. 329-A of 1977
Judge
Reported in[1979]43STC374(All)
AppellantDayal Singh Kulfiwale
RespondentCommissioner of Sales Tax
Appellant Advocate R.K. Gulati and ; M.C. Gupta, Advs.
Respondent Advocate The Standing Counsel
Cases ReferredU. P. v. Jassu Ram
Excerpt:
- - 3. turning to the first question as to whether kulfi is a cooked food, the process of making kulfi, as detailed above, clearly indicates that no cooking is involved in making kulfi......singh, j.1. the assessee is a dealer of kulfi. the assessee's contention was that kulfi, being a milk product, was exempt from tax. the judge (revisions) had held that kulfi is a cooked food and not milk food. this has led to the reference of three questions to this court.(1) whether, in view of the facts and circumstances of the case, kulfi is cooked food ?(2) whether kulfi is milk product and exempt under notification no. st-911/x dated 31st march, 1956?(3) whether kulfi is taxable under notification no. st-775/x- 900(16)-1964 dated 16th february, 1965 ?2. although, the process of manufacture of kulfi is not set out in the revisional order, it is detailed in the statement of the case. parties have not disputed the method of manufacture of kulfi as set out in the statement of the.....
Judgment:

C.S.P. Singh, J.

1. The assessee is a dealer of kulfi. The assessee's contention was that kulfi, being a milk product, was exempt from tax. The Judge (Revisions) had held that kulfi is a cooked food and not milk food. This has led to the reference of three questions to this Court.

(1) Whether, in view of the facts and circumstances of the case, kulfi is cooked food ?

(2) Whether kulfi is milk product and exempt under Notification No. ST-911/X dated 31st March, 1956?

(3) Whether kulfi is taxable under Notification No. ST-775/X- 900(16)-1964 dated 16th February, 1965 ?

2. Although, the process of manufacture of kulfi is not set out in the revisional order, it is detailed in the statement of the case. Parties have not disputed the method of manufacture of kulfi as set out in the statement of the case. Kulfi is prepared from milk. The milk is first heated till it becomes viscid. Then sugar, dry fruits and essence are mixed in this and the paste is filled in small containers. These containers are then sealed and put in a freezer and after they solidify, the seals are broken and the kulfi is sold to customers.

3. Turning to the first question as to whether kulfi is a cooked food, the process of making kulfi, as detailed above, clearly indicates that no cooking is involved in making kulfi. However, in order to strengthen this conclusion reference may be made to the case of Commissioner of Sales Tax, U. P. v. Jassu Ram 1976 U.P.T.C. 584, wherein the question was whether biscuits were cooked food. It was held that although cooking involves the process of application of heat, the word 'cooked food' as occurring in Notification No. ST-3612/X-900(21)-69 dated 1st July, 1969, applies only to such food, which is cooked and is taken in a meal, that is, at breakfast, lunch or dinner. The Division Bench relied heavily on the Hindi version of the notification, which used the words pakaya hua bhojan. Now kulfi can, by no ingenious argument, be demonstrated to be pakaya hua bhojan.

4. The second and third questions are interconnected and their answers depend on Notification No. ST-911/X dated 31st March, 1956. The second notification of 16th February, 1965, only amends the notification of 31st March, 1956. The amendment effected is not very material for the decision of this controversy. The relevant part of the notification of 31st March, 1956, is item No. 10, which is in these terms:

Item No. 10: Milk and milk products such as chhena, dahi, khoa, butter and cream but excluding (1) products sold in sealed containers ; and (2) sweetmeat.

5. Modification made by the notification dated 16th February, 1965, was that entry No. 10 was substituted by the following entry :

Milk and milk products but excluding (1) products sold in sealed containers ; (2) sweetmeat; (3) ghee ; (4) butter and cream.

6. Thus, the entry so far as milk product is concerned, excluding such items with which we are not concerned, has remained unchanged. The word 'milk product' has not been defined in the notification although illustrations of some milk products are given in the notification of 31st March, 1956. Before a particular commodity can be said to be milk product, it must be produced from it. Produce, according to the Webster's 3rd New International Dictionary, means something that is brought forth or yielded either naturally or as a result of effort or work. Kulfi is not yielded naturally from milk, but is produced as a result of evaporating the milk to a certain extent till it becomes viscid, and the addition of sugar, dry fruits and essence. Dry fruits, sugar and essence are added to give sweetness and flavor to the viscid milk and form a very small constituent of kulfi. The main constituent is milk. Thus, kulfi is nothing else but a milk product and is exempt from tax under both the notifications.

7. The first question is answered by saying that kulfi is not a cooked food and the second that kulfi is a milk product and is exempt under the notification dated 31st March, 1956. Answer to the third question is that kulfi is not taxable under the notification dated 16th February, 1965. The assessee is entitled to his costs, which are assessed at Rs. 200.


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