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Commissioner of Sales Tax Vs. Maganlal Sarbulal and Co. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Civil Case No. 84 of 1978
Judge
Reported in[1981]48STC172(MP)
AppellantCommissioner of Sales Tax
RespondentMaganlal Sarbulal and Co.
Appellant Advocate S.R. Joshi, Government Adv.
Respondent Advocate K.R. Mandovara, Adv.
Excerpt:
.....on him to prove his innocence. conviction of appellant is liable to be set aside. - 7 of part iii of schedule ii appended to the act that the commodity should be vegetable oil as well as edible oil......and circumstances of the case, entry no. 7 of part iii of schedule ii appended to the act covers cotton seed oil]?2. the facts giving rise to this reference as set out in the statement of the case are as follows : the assessee deals in foodgrain and oil-seeds and was assessed to tax under the act for the diwali year 1969-70. the cotton seed oil was assessed to tax at the rate of 7 per cent. on appeal by the assessee the deputy commissioner of sales tax upheld the order of the assessing authority and dismissed the appeal. on further appeal by the assessee the board of revenue accepted the contention of the assessee that cotton seed oil was taxable at 2 per cent under entry no. 7 of part iii of schedule ii appended to the act. at the instance of the department the board of revenue has.....
Judgment:

R.K. Vijayvargiya, J.

1. By this reference under Section 44(1) of the M.P. General Sales Tax Act, 1958 (hereinafter referred to as the Act), the Board of Revenue has referred the following question of law for the opinion of this Court:

Whether, in the facts and circumstances of the case, entry No. 7 of Part III of Schedule II appended to the Act covers cotton seed oil]?

2. The facts giving rise to this reference as set out in the statement of the case are as follows : The assessee deals in foodgrain and oil-seeds and was assessed to tax under the Act for the Diwali year 1969-70. The cotton seed oil was assessed to tax at the rate of 7 per cent. On appeal by the assessee the Deputy Commissioner of Sales Tax upheld the order of the assessing authority and dismissed the appeal. On further appeal by the assessee the Board of Revenue accepted the contention of the assessee that cotton seed oil was taxable at 2 per cent under entry No. 7 of Part III of Schedule II appended to the Act. At the instance of the department the Board of Revenue has referred the aforesaid question of law for the opinion of this Court.

3. Entry No. 7 of Part III of Schedule II appended to the Act reads as follows:

Vegetable and edible oils except hydrogenated vegetable 2 per cent.oils and that exempted vide entry 36 of Schedule I.

4. The learned counsel for the department contended that the Board of Revenue has not given a finding that cotton seed oil is an edible oil. According to him the oil must be both vegetable and edible, and then only it is taxable under entry No. 7 of Part III of Schedule II appended to the Act. He therefore contended that without giving a finding that Cotton seed oil was edible oil the Board of Revenue has committed an error in holding that cotton seed oil was taxable under entry No. 7 of Part III of Schedule II appended to the Act. The contention of the learned Government Advocate appearing for the department cannot be upheld. On a true construction of the said entry it is not necessary for the applicability of entry No. 7 of Part III of Schedule II appended to the Act that the commodity should be vegetable oil as well as edible oil. It is enough if either it is vegetable oil or it is edible oil. If a particular oil is vegetable oil it is covered by that entry and if it is an edible oil it is also covered by that entry. It was not disputed by the department that cotton seed oil is vegetable oil. In the circumstances the Board of Revenue did not commit any error of law in holding that vegetable oil was taxable under entry No. 7 of Part III of Schedule II appended to the Act and our answer to the question referred to us is in the affirmative and against the department.

5. The reference is answered accordingly. In the circumstances the parties shall bear their own costs of this reference.


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