P.V. Dixit, C.J.
1. This order will also govern the disposal of Miscellaneous Civil Cases Nos. 258, 259, 260, 261 and 262, all of 1964.
2. These six references under Section 44 of the Madhya Pradesh General Sales' Tax Act, 1958, at the instance of the Commissioner of Sales Tax arise out of Sales Tax Tribunal's orders passed in six appeals arising out of assessment proceedings for the assessment years from 1st January, 1950 to 30th June, 1956. In each reference the question which has been stated for our decision is:-
Whether biscuits fall under tax-free goods under item No. 41 of Schedule II to the C.P. and Berar Sales Tax Act, 1947 ?
3. The assessee's claim that biscuits were exempt from sales tax under the Central Provinces and Berar Sales Tax Act, 1947 (hereinafter referred to as the Act) was negatived by the Sales Tax Authorities. It was, however, accepted by the Sales Tax Tribunal, that is, the Board of Revenue. Accordingly, the Tribunal allowed the appeals preferred by the assessee Ballabhdas Ishwardas and directed the exclusion of the sales of biscuits from the taxable turnover of the assessee for each of the six relevant assessment years.
4. Schedule II to the Act enumerates the goods on the sale of which no tax is payable as provided by Section 6 of the Act. Entry No. 41 of the Schedule reads as follows :
SCHEDULE IISerial No. Description of goods. Conditions and exceptions subjectto which exemption has beenallowed.* * * *41 Cooked food other than- ...(a) pastries, or(b) a meal, the charge forwhich exceeds one rupee.
5. The question raised in these references turns on the construction of this entry. The Act does not give any definition of 'cooked food' or of 'biscuits'. The expression 'cooked food' must, therefore, be understood in the sense it has in common parlance and in its popular meaning as understood by people who sell or purchase cooked food. In Ramavatar v. Assistant Sales Tax Officer A.I.R. 1961 S.C. 1325 the Supreme Court has pointed out that the terms and expressions used in tax statutes must be construed not in any technical sense but as understood in common parlance and that if the word or term is of every day use, it must be construed in its popular meaning, that is to say, 'in that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it.' It would not, therefore, be legitimate to put on the words of entry No. 41 a construction giving them a special meaning. Schedule II enumerates goods which under Section 6 of the Act are exempt from tax. The exemption granted by entry No. 41 is a creature of the statute and must be construed strictly. This rule of strict construction has been laid down by the Supreme Court in Union of India v. Commercial Tax Officer A.I.R. 1956 S.C. 202 wherein it was held that the exemption granted by Section 5(2) of the Bengal Finance (Sales Tax) Act, 1941, being the creation of the statute must be construed strictly. The exemption claimed by the assessee must fall clearly within the language granting exemption and the burden is on the assessee to substantiate the claim of exemption.
6. Now, when one talks of 'food' or 'cooked food' what one means is that which one takes into the system to maintain life and growth, to supply aliment or nourishment. In a wide sense food would no doubt include everything that is eatable. But in common parlance 'cooked food' means those things which one eats at regular times of the day at breakfast, dinner or supper. Biscuit is no doubt a kind of food if the term is understood in a very wide sense. The process of baking involved in the manufacture of biscuits is no doubt a form of cooking. But it is not 'cooked food' which one takes at meal hours. Biscuits can be eaten alone or as adjunct to other food. But no one would normally dream of living on biscuits only day in and day out without getting diseases flowing from malnutrition and under-nourishment. No one who goes to a hotel or restaurant for a meal and asks for cooked food, will accept biscuits. In our opinion, the term 'cooked food' used in entry No. 41 cannot be read in a wide sense so as to include everything made fit for eating by application of heat, as by boiling, baking, roasting, broiling etc. The term is confined to those cooked things which one generally takes at regular meal hours. It is no doubt true that the entry treats 'pastries' as cooked food when it specifically provides for exclusion of pastries from its scope. But this artificial exclusion of pastries from cooked food cannot afford any justification for including in 'cooked food' that which is not 'cooked food' as understood in common parlance.
7. For these reasons, our answer to the question stated for our opinion in each reference is that biscuits do not fall within the meaning of the term 'cooked food' used in entry No. 41 of Schedule II to the Act, and are, therefore, not exempt from tax under the entry.
8. In the circumstances of the case, we leave the parties to bear their own costs in all these six cases.