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Commissioner of Sales Tax Vs. Gyanmal Kesharichand - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Civil Case No. 92 of 1980
Judge
Reported in[1984]55STC140(MP)
AppellantCommissioner of Sales Tax
RespondentGyanmal Kesharichand
Appellant Advocate Swami Sharan, Government Adv.
Respondent Advocate M.S. Indapurkar, Adv.
Cases Referred(see Ramavatar v. Assistant Sales Tax Officer
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - even if a section of oriyas have a dislike for chillies and lemons, they do not cease to.....u.n. bhachawat, j.1. this order shall also dispose of the companion cases- misc. civil case no. 93 of 1980 (commissioner of sales tax v. gyanmal keshrichand, shivpuri) and misc. civil case no. 98 of 1980 (commissioner of sales tax, m.p. v. jain ice candy, guna) as a common question of law is involved in all these cases.2. the sales tax tribunal (board of revenue, madhya pradesh) (hereinafter referred to as 'the tribunal') under section 44 of the madhya pradesh general sales tax act, 1958, referred the following question to this court, for answer :whether under the facts and circumstances of the case, ice-cream, ice-candy is cooked food and is covered by item 8 of part i of schedule ii appended to the m. p. general sales tax act, 1958 (hereinafter referred to as 'the act').the assessment.....
Judgment:

U.N. Bhachawat, J.

1. This order shall also dispose of the companion cases- Misc. Civil Case No. 93 of 1980 (Commissioner of Sales Tax v. Gyanmal Keshrichand, Shivpuri) and Misc. Civil Case No. 98 of 1980 (Commissioner of Sales Tax, M.P. v. Jain Ice Candy, Guna) as a common question of law is involved in all these cases.

2. The Sales Tax Tribunal (Board of Revenue, Madhya Pradesh) (hereinafter referred to as 'the Tribunal') under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, referred the following question to this Court, for answer :

Whether under the facts and circumstances of the case, ice-cream, ice-candy is cooked food and is covered by item 8 of Part I of Schedule II appended to the M. P. General Sales Tax Act, 1958 (hereinafter referred to as 'the Act').

The assessment years involved are :

1968-69 in M.C.C. No. 92 of 1980

1969-70 in M.C.C. No. 93 of 1980

1971-72 in M.C.C. No. 98 of 1980

3. The assessees were assessed to tax at 7 per cent in respect of sale of icecream. The respective assessees preferred their respective appeals before the Appellate Assistant Commissioner, Sales Tax, wherein it was contended that icecream should be treated as cooked food and tax on its sale should be levied at 2 per cent. The Appellate Assistant Commissioner rejected the appeals. Second appeals were preferred before the Tribunal. The Tribunal held that ice-cream and ice-candy are cooked food and liable to be taxed as such under entry 8 of Part I of Schedule II to the Act and referred the above question at the instance of the department.

4. The reference was placed for hearing before the Division Bench of this Court. The Division Bench found that there was a divergence of opinion in the two Division Bench decisions of this Court, namely, in Commissioner of Sales Tax, Madhya Pradesh v. India Coffee Workers' Co-operative Society Ltd., Jabalpur [1969] 2 VKN 138 and in Misc. Petition No. 214 of 1976 {Commissioner of Sales Tax, M. P. v. Mahavir Ice Cream Factory, Shivpuri) decided on 9th April, 1980, and therefore, the matter has been referred to the Full Bench.

5. It may be made clear that the learned counsel for the parties did not dispute that there is no difference between ice-cream and ice-candy.

6. The central core of the argument of the learned counsel for the respective assessees was that milk is the essential component of ice-cream and for preparing ice-cream it has to be heated, and therefore, it is a cooked food covered under entry No. 8 of Part I of Schedule II to the Act. The learned counsel also drew assistance to support their contention from the subsequent legislation, that is, amendment of entry No. 8 in question with effect from 31st August, 1974, and the further amendment, vide M.P. Act No. 25 of 1978 whereby the entry in question was replaced by entry No. 4 as 'cooked food' and cooked food was defined vide Section 2(cc).

7. The bed-rock of the argument in counter of the learned Government Advocate appearing for the department was that to decide whether ice-cream, ice-candy is a cooked food, its wider meaning should not be adopted, but what is understood by this expression in common parlance has to be adopted. He submitted that taking the meaning of 'cooked food' as understood in common parlance, ice-cream and ice-candy do not come under the category of 'cooked food'. It was also argued by the learned Government Advocate that no assistance can be drawn from the subsequent amendments. His submission was that in common parlance ice-cream was never understood as 'cooked food' and hence it was not for clearing any ambiguity in the term 'cooked food' that the amendments were effected, but as in India Coffee Workers' Co-operative Society Ltd.'s case [1969] 2 VKN 138 in a different context an observation was made, therefore, by way of abundant caution the amendments were made. He also argued that the Hindi version of the word is as is used in the subsequent amendments which go to show that ice-cream and ice-candy could not be covered under 'cooked food'.

8. It may be mentioned that the learned counsel for the assessees in their arguments in rejoinder had submitted that the Hindi version of 'cooked food' is not an authoritative text in view of Article 348; the authoritative text is the English version and in the Hindi version also against the word in bracket 'cooked food' is mentioned so the emphasis is on 'cooked food'.

9. We now proceed to deal with the central point : whether for determining as to ice-cream, ice-candy is a 'cooked food' and taxable as such under item 8 of Part I of Schedule II to the Act, should it be understood as is understood in the common parlance or it should be understood according to its scientific and technical sense bearing in mind the process of its preparation. There are umpteen decisions of Supreme Court on the point which need a survey.

10. In Ramavatar Budhai Prasad v. Assistant Sales Tax Officer, Akola AIR 1961 SC 1325 the question before the Supreme Court was as to the meaning of the word 'vegetables' as it appeared in the C. P. and Berar Sales Tax Act, 1947 (No. 21 of 1947) as amended by the C. P. and Berar Sales Tax Act (16 of 1948), whether it includes 'betal leaves' or not. Their Lordships of the Supreme Court held that although the word 'vegetable' in natural history and according to dictionary meaning is comprehensive enough to include 'betel leaves' it has to be construed in its popular sense. The relevant observations read as under:

Reliance was placed on the dictionary meaning of the word 'vegetable' as given in Shorter Oxford Dictionary where the word is defined as 'of or pertaining to, comprised or consisting of, or derived, or obtained from plants or their parts'. But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning 'that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it.' It is to be construed as understood in common language.

Their Lordships so construing the word 'vegetable' construed it to denote those classes of vegetables which are grown in kitchen garden and held that 'betel leaves' were excluded from its purview.

11. In Motifur Zamindary Co. v. State of Bihar AIR 1962 SC 660 the question before the Supreme Court was whether 'sugarcane' was included in the term 'green vegetables' under the Bihar Sales Tax Act (19 of 1947). In that case also it was held that the word 'vegetable' in taxing statute is to be understood as in common parlance that is denoting class of vegetables which are grown in kitchen garden and are used for a table and held that 'sugarcane' would not fall within the meaning of the word 'vegetable'' for the purposes of the sales tax.

12. In Mangulu Sahu Ramahari Sahu v. Sales Tax Officer, Ganjam AIR 1974 SC 390, the question before the Supreme Court was whether chillies and lemons are vegetables as contemplated by the Orissa Sales Tax Act (No. 14 of 1947). The Orissa High Court on examining the botanical meaning of the word 'vegetable' and also holding that chillies and lemons are not principal items of food held they cannot be included in vegetable. The Supreme Court disagreeing with the view of the Orissa High Court reiterating the view taken by the Supreme Court in Ramavatar Budhai Prasad's case AIR 1961 SC 1325 held as under :

A word which is not denned in the Act but which is a word of every day use must be construed in its popular sense. In that case, this Court took the view that the word 'vegetables' should be understood as denoting the class of vegetables which are grown in kitchen garden or in a farm and are used for the tables. There can be no dispute that both chillies and. lemons are grown in kitchen gardens or at any rate in farms and they are used for the tables. Mr. Mehta, appearing for the State of Orissa, contended that in Orissa chillies and lemons are not used as articles of food. We are unable to accept this assertion as correct. Even if a section of Oriyas have a dislike for chillies and lemons, they do not cease to be vegetables for that reason. In common parlance, chillies and lemons are known as vegetables. We have no doubt that chillies and lemons have always been considered as vegetables.

13. In Commissioner of Sales Tax, M. P., Indore v. Jaswant Singh Charan Singh AIR 1967 SC 1454 the question before the Supreme Court was whether charcoal was covered within the meaning of coal and taxable under entry 1 of Part III of Schedule II to the M. P. General Sales Tax Act (2 of 1959), this entry reads as under :

1. Coal, including coke in all its forms 2 per cent.

The High Court of M. P. had held that charcoal was covered by entry 1 of Part III. It was contended on behalf of the State-(i) that coal and charcoal are different products, one being a mineral product and the other prepared from wood and other articles by human-agency, and therefore, the term 'coal' would not cover charcol; (ii) that while construing such entries, the dictionary meaning should not be preferred to the popular meaning or the meaning in the commercial sense; and, (iii) that the legislative policy in reference to the term 'coal' shows that it is not used by the legislature in India so as to include 'charcoal'. In support of the contentions reliance was placed on Section 5 of the Colliery Control Order, 1945, as also on other various statutory provisions to show that the legislature has all along been using coal as mineral product only. The Supreme Court again reiterating the principle in Ramavatar Budhai Prasad's case AIR 1961 SC 1325 observed as under:

But it is now well-settled that while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense.

The result emerging from these decisions is that while construing the word 'coal' in entry 1 of Part III of Schedule II, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute, being one levying a tax on goods, must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal.

14. In Sarin Chemical Laboratory v. Commissioner of Sales Tax, U. P. AIR 1971 SC 65 the question for determination before the Supreme Court was whether 'Sarin Tooth Powder' is 'cosmetic' or a 'toilet requisite' or an unspecified commodity under the U. P. Sales Tax Act. In the Act neither the expressions 'cosmetic' nor 'toilet requisite' were defined. The Supreme Court reiterating the dictum laid down in Ramavatar's case AIR 1961 SC 1325, held that as in common parlance 'tooth powder' is considered as 'toilet', it is an item included in 'toilet' for the purpose of sales tax.

15. In Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. G. S. Pai & Co. AIR 1980 SC 611, following two questions were before the Supreme Court for consideration :

(i) whether certain ornaments and other articles of gold purchased by the assessee with a view to melting them and making new ornaments or other articles out of the melted gold fall within entry 56 'bullion and specie' in the First Schedule of the Kerala General Sales Tax Act, 1963.

(ii) whether G. I. pipes sold by the assessee fall within entry 26A in the First Schedule to the Kerala General Sales Tax Act, 1963, 'water supply and sanitary fittings'.

The Supreme Court reiterating its earlier dictum that common parlance meaning has to be adopted, held as under :

While interpreting the entries in sales tax legislation it should be borne in mind that the words used in the entries must be construed not in any technical sense nor from the scientific point of view but as understood in common parlance. Courts must give the words used by the legislature their popular sense meaning 'that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it'. The word in the entry must, therefore, be interpreted according to ordinary parlance and must be given a meaning which people conversant with this commodity would ascribe to it.

Ornaments and other articles of gold cannot be regarded as 'bullion' because, even if old and antiquated, they are not raw or unwrought gold or gold in the mass, but they represent manufactured or finished products of gold. Nor do they come within the meaning of the expression 'specie'. According to common parlance, the word 'specie' means any metallic coin which is used as currency and ornaments and other articles of gold cannot be described as specie'. The ornaments and other articles of gold as purchased by the assessee do not fall within the entry 56 and they are, accordingly, liable to be taxed not at the lesser rate of 1 per cent applicable to 'bullion and specie' but at the general rate of 3 per cent under Section 5A read with Section 5(1)(ii) of the Act.

The expression 'sanitary fittings' according to the popular sense of the term means such pipes or materials as are used in lavatories, urinals or bath-rooms of private houses or public buildings. The G. I. pipes sold by the assessee would therefore, fall within the description of 'sanitary fittings' only if it can be proved and the burden of so doing would be on the revenue, that they were meant for use in lavatories, urinals or bath-rooms.

The expression 'water supply...fittings' in the context means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath-rooms of private houses or public buildings and they do not include heavy pipes which are laid underground as mains for carrying water supply from one area or place to another. Therefore, even for the purpose of determining whether G. I. pipes sold by the assessee are 'water supply... fittings', it would have to be found as to what is the purpose for which they were meant to be used.

In essence, the principle laid down in the Supreme Court decisions is that for the purpose of sales tax unless an item is defined in the Act, its common parlance meaning has to be adopted.

16. In continuity to this finding it would be advisable to consider whether in their popular sense or common parlance meaning 'ice-cream' and 'ice-candy' are includible in the simple term 'cooked food', when it is not defined in the interpretation clause. What is meant by popular sense and common parlance has been indicated in the authorities of the Supreme Court referred to herein above. We would also like to extract herein below the observations relating to the meaning of the expressions 'popular sense' and 'common parlance' from Craies on Statute Law (7th Edn.), page 163, as they are of material assistance :

In other words, as was said by Pollock, B., in Grenfell v. Inland Revenue Commissioners (1876) 1 Ex D 242, 248, if a statute contains language which is capable of being construed in a popular sense, such 'a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words 'popular sense' that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it.

And in Attorney-General v. Bailey (1847) 1 Ex 281, 292, it was held that the word 'spirits', being 'a word of known import...is used in the Excise Acts in the sense in which it is ordinarily understood'. 'We do not think', said the court 'that, in common parlance, the word 'spirits' would be considered as comprehending a liquid like 'sweet spirits of nitre,' which is itself a known article of commerce not ordinarily passing under the name of 'spirits'.

Thus on a conspectus of the authorities referred to above it is obtainable that the meaning of the expressions 'popular sense' and 'common parlance' is the sense in which the merchant dealing with the article and the consumers wanting to purchase it ordinarily understand.

17. It is a matter of common knowledge that 'ice-cream' and 'ice-candy' are items of wide consumption in the country by people of all strata in the society and neither the merchants dealing in these items nor the consumers in general sell or purchase it as 'cooked food'. We quote with approval the observations of the Division Bench of this Court in Commissioner of Sales Tax v. Shri Ballabhdas Ishwardas [1968] 21 STC 309 :

But in common parlance 'cooked food' means those things which one eats at regular times of the day at break-fast, dinner or supper.

Ice-cream' or 'ice-candy' may be consumed alone or as adjunct to other food but certainly no one takes them as 'cooked food' at meal hours. It is true that milk is a major component of these products and the process of their preparation involves heating and freezing, but we are concerned with 'popular sense' or 'common parlance' understanding of the end-product and not with the mode of its preparation, particularly when we are dealing with legislation on sales tax. The learned counsel for the respective assessees had submitted that this 'common parlance' meaning of 'cooked food' ascribed in Ballabhdas Ishwardas's case [1968] 21 STC 309 was in view of the entry of 'cooked food' as it stood then, with the change in the form of entry and as it stood during the relevant period the observation in that decision regarding 'common parlance' meaning of 'cooked food' does not hold the field. The learned counsel for the assessees relied upon a Division Bench decision of this Court in Commissioner of Sales Tax, Madhya Pradesh v. Regal Dairy, Mhow [1981] 14 VKN 7. The argument does not appeal to us. The change in the form of an entry would not change its ordinary or 'common parlance' meaning. It is a different matter that by the artificial definition it may be made either restrictive or extensive. At this stage we would like to extract the following observations from the decision of the Supreme Court in Commissioner of Gift-lax, Madras v. N. S. Getty Chettiar AIR 1971 SC 2410 :

14. As observed in Craics on Statute Law (6th Edn., p. 213) that an interpretation clause which extends the meaning of a word does not take away its ordinary meaning. An interpretation clause is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject-matter to the contrary to be applied to some things to which it would not ordinarily be applicable.

The Division Bench in Regal Dairy's case [1981] 47 STC 374; [1981] 14 VKN 7 has also not held that with the changed definition the 'common parlance' or 'popular sense' meaning of 'cooked food' has undergone a change. What the Division Bench has held is that by enacting the entry in its changed form the legislature meant to cover those articles which are made fit for eating by a heating process as boiling, roasting or baking. We do not agree with this sweeping interpretation of the entry. We have already held in the preceding paragraph relying on the Supreme Court decisions that for interpreting items in sales tax statute the mode of preparation or the scientific or technical sense meaning has not to be applied. It is the 'popular sense' or 'common parlance' meaning that has to be ascribed.

18. The upshot of the foregoing discussion is that unless otherwise specifically provided 'ice-cream' and 'ice-candy' in view of their 'common parlance' or 'popular sense' meaning are not 'cooked food' and cannot be treated as includible in the term 'cooked food', for the purpose of sales tax. We would not omit to mention that the learned counsel for the respective assessees had in support of their argument that even in 'popular sense' 'ice-cream' and 'ice-candy' should be regarded as cooked food tried to draw assistance from the Prevention of Food Adulteration Act, 1954. It was argued that according to the provisions of that Act 'ice-cream' is a food and treating milk as its component a standard has been prescribed for it, and therefore, it should be held that it is an item included in the term 'cooked food'. The argument is stated to be rejected. It is not shown to us that any provisions of the Prevention of Food Adulteration Act, 1954, relied upon by the learned counsel has been incorporated by reference or otherwise in the M. P. General Sales Tax Act. It is also clear that the subjects of the two Acts are different. They are not statutes in pari materia. For these reasons no assistance can be drawn for interpreting the entry 'cooked food' in the sales tax legislation from the provisions of the Prevention of Food Adulteration Act, 1954. Our view is buttressed from the following observations in Craies on Statute Law (7th Edn.), page 164 :

In construing a word in an Act caution is necessary in adopting the meaning ascribed to the word in other Acts. 'It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act, which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone.

19. It is in the back drop of the conclusion that unless specifically so provided 'ice-cream' and 'ice-candy' do not fall within the ken of item 'cooked food', we proceed to examine whether 'ice-cream' and 'ice-candy' were covered in entry 8 in Part I of Schedule II to the Act as it stood during the period 1968-69 to 1971-72. This entry reads as under :

8. Cooked food including sweatmeats and mishri, batasha and chironji but excluding cakes, pastries, biscuits, chocolates, toffees, lozenges and peppermint drops. 2 per cent

The entry extracted above says to include certain things and exclude certain things, 'ice-cream', 'ice-candy', are neither included nor excluded. We have already held that according to their 'popular sense' or 'common parlance' meaning 'ice-cream' and 'ice-candy' are not included in the term 'cooked food'. The decisions of the Supreme Court especially the leading decision in Ramavatar Budhaiprasad's case AIR 1961 SC 1325 which laid down that for deciding whether a particular thing is covered under a particular entry in the sales tax legislation it should be construed as it is understood in 'popular sense' or 'common parlance' meaning. Craies on Statute Law (7th Edn.) at page 167 observed :

There is a well-known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted.

Viewed from this angle, it can well be assumed that the legislature was aware of the Supreme Court decisions that the entry 'cooked food' would be interpreted in the 'popular sense' meaning, the legislature therefore extended the meaning of the term 'cooked food' so as to cover in it certain specified things which but for the declaration that they are included in 'cooked food', would not be covered in it. 'The word 'include' is very generally used in interpretation clause in order to enlarge the meaning of the words or phrases occurring in the body of the statute, and when it is so used those words and phrases must be construed as comprehending, not only such things, as they signify according to their natural import but also those things which the interpretation clause declares that they shall 'include'' : Principles of Statutory Interpretation, 2nd Edition by G. P. Singh, J. (now Chief Justice), page 109. The things declared to be included are sweetmeats and mishri, batasha and chironji. According to the 'popular sense' meaning of these things 'ice-cream' and 'ice-candy' are not covered in any one of them. Therefore the general rule, 'a definition may be both inclusive, and exclusive i.e., it may include certain things and exclude others. In such a case limited exclusion of a thing may suggest that other categories of that thing which are not excluded fall within the inclusive definition.' : Principles of Statutory Interpretation, 2nd Edition, by G. P. Singh, J. (now Chief Justice), cannot be attracted and for want of specific exclusion of 'ice-cream' and 'ice-candy' it cannot be held that they or any one of them is covered under 'cooked food'. We, therefore, conclude that 'ice-cream' and 'ice-candy' are not covered in entry 8 of Part I of Schedule II to the Act extracted in this paragraph above.

20. We now proceed to examine the validity of the argument of the learned counsel for the assessee that taking the aid of specific exclusion of 'ice-cream' and 'ice-candy' from 'cooked food' by amendment in entry 8 relating to 'cooked food' since 31st August, 1974, it should be held that these things were covered under the entry 'cooked food' as it stood during the assessment period under consideration. Before we proceed to dilate on these questions we would like to give herein below the history of entry relating to 'cooked food' in Schedule I to the Act.

9. Cooked food other than-

(a) pastries,

(b) a meal the charge of which exceeds rupees two,

(c) sweetmeats.

This entry was omitted from 1st April, 1964. The disquisition regarding the entry of 'cooked food' in Part I of the Schedule II reveals the position as under :

Schedule II Part I--------------------------------------------------------------------------------No. Description of goods Rate of Point of Period Amendment Act tax levy or Notification No.by which amend-ments made--------------------------------------------------------------------------------8. Cooked food including 2 per cent. ... 1-4-64 Act 9 of 1964 sweet meats but exclu- to ding cakes, pastries, 17-2-66biscuits, chocolates, toffees, lozenges and peppermint drops.8. Cooked food including 2 per cent, ... From 248-1744-V-ST Dt.sweetmeats and mishri, 18-2-66 31-3-66 18-2-66 31-3-66 batasha and chironji, tobut excluding cakes, 30-8-74pastries, biscuits, chocolates, toffees, lozenges and pepper-mint drops.8. Cooked food including 2 per cent. ... From Act 29 of 1974sweets and sweetmeats, 31-8-74mishri, batasha, chir-onji, shrikhand, rabdi, doodhpak, but excluding ice-cream, kulfi, ice-candy, non-alcoholic drinks containing ice-cream, cakes, pastries, biscuits, chocolates, toffees, lozenges, pep-permint drops and 'cooked food' covered by entry 71 in Part II.Thereafter vide Amendment Act No. 25 of 1978 with effect from 1st October, 1978, entry relating to 'cooked food' became entry No. 4 in the said schedule which stands as under :

Schedulk II Part I--------------------------------------------------------------------------------S. No. Description of goods Rate of basic Rate of addi- Total rate oftax tional tax taxper cent per cent--------------------------------------------------------------------------------4. Cooked food. 3 1.0 4 per cent.--------------------------------------------------------------------------------It is for the first time that 'cooked food' has been defined in Section 2(cc) (Act No. 25 of 1978) which reads as under :(cc) 'Cooked food' includes sweets and sweetmeats, mishri, batasha, chironji, shrikhand, rabdi, doodhpak but excludes ice-cream, kulfi, ice-candy, nonalcoholic drinks containing ice-cream, cakes, pastries, biscuits, chocolates, toffees, lozenges, peppermint drops and mawa.

21. In paragraph 19 of this order, we have held that the entry 'cooked food', unless by artificial definition it is so included, does not include within its ken 'ice-cream' and 'ice-candy'. In such a situation, i.e., when 'ice-cream' and 'ice-candy' are not 'cooked food' as understood in 'common parlance' and also not declared to be included by enlarging its meaning so as to comprehend these items in it, their artificial exclusion from the 'cooked food' cannot afford any justification for including these items in 'cooked food'. The reason for this artificial exclusion of 'ice-cream' and 'ice-candy' from 'cooked food' by amending the entry relating to 'cooked food' since 31st August, 1974, appears to be the decision of this Court in India Coffee Workers' Co-operative Society Ltd.'s case [1969] 2 VKN 138. In that case, while considering the question whether the sale of 'ice-cream' or such other eatables and snacks would constitute the sale of 'a meal' to be covered in the entry 'cooked food' as it stood before 1st April, 1964 as item No. 9 in Schedule I. This Court had said that 'ice-cream' is cooked food. It may be stated that in that case in fact as it would appear from the discussion contained in its paragraph 4 which is just being set out herein below, it was not disputed that 'ice-cream' was a 'cooked food'. The court had no occasion to determine the question whether 'icecream' was a 'cooked food' :

4. It will be seen from Section 10(1) read with entry No. 9 that sales of 'cooked food' are exempt from tax. But if the 'cooked food' is 'a meal' the charge of which exceeds rupees two, then its sale is not exempt from tax. In this reference there is no controversy that the articles enumerated earlier sold by the assessee are cooked food. The sole question raised in this reference is whether the sale of any of those articles singly or collectively exceeding in value rupees two constitutes 'a meal' the charge of which exceeds rupees two. This question turns on the construction of the expression 'a meal'. The Act does not give any definition of 'meal'. The expression 'a meal' must, therefore, be understood in the sense it has in common parlance and in its popular meaning as understood by people who sell and serve meals (see Ramavatar v. Assistant Sales Tax Officer AIR 1961 SC 1325). Now, when one talks of a meal, what one means is 'food one takes at regular times of the day at a breakfast, dinner, supper etc.'. No doubt, one can satisfy the requirements of hunger and exist by eating at any time everything that is eatable, but that is not taking 'a meal'; it is making 'a meal' of the eatable or eatables. No one who goes to the restaurant run by the assessee and asks for being served 'a meal' will accept singly or collectively any of the snack or preparations enumerated earlier sold by the assessee. In our judgment, the sale of any of the articles sold by the assessee did not constitute sale of any 'meal'. The sales were of 'cooked food' which is exempt from tax under item No. 9 of Schedule I.

It cannot be gainsaid that the decision in India Coffee Workers' Co-operative Society Ltd.'s case [1970] 25 STC 43; [1969] 2 VKN 138 was bound to create a doubt on the point as to whether 'ice-cream' and 'ice-candy' are 'cooked food' or not. The legislature, therefore, in its wisdom to remove the doubt and clarify its intention that 'ice-cream' and 'ice-candy' are not 'cooked food' provided for its artificial exclusion by amending the entry since 31st August, 1974.

22. Craies on Statute Law (7th Edn.) at page 146 observed :

It is not strictly permissible to interpret a statute by reference to what has been done in subsequent statutes; but sometimes light may be thrown upon the meaning of an Act by taking into consideration enactments contained in subsequent Acts. Sometimes an Act is passed for the express purpose of explaining or clearing up doubts as to the meaning of a previous Act, and is called 'An Act of explanation'.

On the facts and the circumstances discussed herein above we are unable to agree that taking aid of the amendment in the entry 'cooked food' since 31st August, 1974, it should be held that earlier to this 'ice-cream' and 'ice-candy' were included within the ken of 'cooked food'.

23. As a result of the foregoing discussion, in our opinion, the view taken in Mahavir Ice Cream Factory's case (Misc. Petition No. 214 of 1976 decided on 9th April, 1980-Madhya Pradesh High Court) is a correct view. We, therefore, answer the question referred to us in the negative. For clarification the question referred and our answer are set out herein below :

Question :-'Whether, under the facts and circumstances of the case, icecream, ice-candy is cooked food and is covered by item 8 of Part I of Schedule II appended to the M. P. General Sales Tax Act, 1958.

Answer :-In the facts and circumstances of the case, 'ice-cream' and 'ice-candy' are not 'cooked food' and are not covered by item 8 of Part I of Schedule II appended to the M. P. General Sales Tax Act, 1958


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