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Kwality Ice Cream Company and Restaurant Vs. the Sales Tax Officer, New Delhi - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal Nos. 35D of 1965 and 680-D, 687D and 696-D of 1966 and Suit Appeal Nos. 1, 16, 20
Judge
Reported in11(1975)DLT180; [1974]34STC396(Delhi)
ActsBengal Finance (Sales Tax) Act, 1941 - Sections 6
AppellantKwality Ice Cream Company and Restaurant
RespondentThe Sales Tax Officer, New Delhi
Advocates: G.C. Sharma,; A.C. Chawla,; Randhir Chawla,;
Cases ReferredIn Amur Chandra Chakraborty v. The Collector of Excise
Excerpt:
it was adjudged that an ice cream is a milk product within the meaning of entry no 12 in the second schedule of the bengal finance act, 1941 and by virtue of section 4 of the act, the sale of an ice cream was exempted from assessment to sales tax. - - ? editor (2) the petitioners in the several writ petitions as well as in the sales tax references are manu acturers of ice-cream, some of them being registered under the act arid some of them being not so registered. according to the petitioners, ice-cream was prepared purely from milk and cream, although they admit that some other ragredients were also added for the purpose of giving different flavours to the ice-cream as well as for the purpose of stabilising it. it further observed that while interpreting items in statutes like the.....m.r.a. ansari, j.(1) the common question that arises for determination in these writs and sales tax reference is whether ice-cream is a milk product within the meaning of entry 12 in the second schedul; of the bengal finance (sales tax) act, 1.41 as extended to the union territory of delhi (hereinafter called as the act) and, thereforee. exempt from assessment from sales tax. all the abovswrit petitions and the sales tax references are disposed of by this common judgment.? editor(2) the petitioners in the several writ petitions as well as in the sales tax references are manu acturers of ice-cream, some of them being registered under the act arid some of them being not so registered. according to the petitioners, ice-cream was prepared purely from milk and cream, although they admit that.....
Judgment:

M.R.A. Ansari, J.

(1) The common question that arises for determination in these writs and sales tax reference is whether ice-cream is a milk product within the meaning of entry 12 in the Second Schedul; of the Bengal Finance (Sales Tax) Act, 1.41 as extended to the Union Territory of Delhi (hereinafter called as the Act) and, thereforee. exempt from assessment from sales tax. All the abovswrit petitions and the sales tax references are disposed of by this common judgment.? Editor

(2) The petitioners in the several writ petitions as well as in the sales tax references are manu acturers of ice-cream, some of them being registered under the Act arid some of them being not so registered. According to the petitioners, ice-cream was prepared purely from milk and cream, although they admit that some other ragredients were also added for the purpose of giving different flavours to the ice-cream as well as for the purpose of stabilising it. The respondents, however. deny that- the ice cream manufactured by the petitioners was produced purely from milk and cream. According to them, the following articles, inter alia, constitute the base of all varieties of ice-cream ;- 1. Milk. 2. Cream. 3. Butter. 4. Sugar 5. G.M.S (smoothex). 6. Straps. 7. Milk powder.

(3) In addition, essences are used as flavouriag agents in some varieties of ice-cream and, fresh fruits, tinned fruits, and dried fruits are also used in other varieties.

(4) For the purpose of deciding whether: ice-cream is a milk product within the meaning of entry 12 of the 2nd Schedule to the Act, we shall proceed on the basis that the ice-cream is in conformity with the standards prescribed under the Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955. b-cause the ice-cream which does not conform to the standards will be considered as adulterated. According to Standard No. A. 11. 11.

ICE-CREAMmeans the frozen food made with 'cream, milk.or other milk products, sweetened with sugar or honey and with or without (a) egg, (b) fruits, (c) nuts, (d) chocolates, (e) stabiliser not more than 0-5-per cent of the finished product and (f) permissible flavour or colour. It shall contain not less than 36 per cent by weight of solids and 10 per cent by weight of milk fat except that when the ice-cream contains fruits or nuts or both, the content of milk fat may be proportionately reduced but not less than 8-0 per cent by weight. It shall not contain any starch, artificial sweetening agent or any other skimned milk shall not contain less than 85 per cent of milk solids other than milk fat.'

It may also be noticed at this stage that according to the standards prescribed for milk in Delhi under A. 11.01.11 of the same Rules, cow milk shall contain a minimum of 3-5 per cent of milk fat and 8-5 per cent of milk solid not fat and buffalo milk shall contain a minimum of 6'0 per cent of milk fat and 9-0 per cent of milk solid not fat. Ice- cream as denined in A. 11.11. which has been reproduced above, thus contains a substantial quantity of milk. The question for consideration would be whether ice-cream which conforms to the above standard is a milk product within the meaning of entry 12 of the 2nd Schedule to the Act.

(5) Section 6 of the Act exempts the articles mentioned in the Second Schedule to the Act from assessment to sales tax and entry No 12in. Second Schedule reads as under :

FRESHmilk, whole or separated and milk products.'

(6) If ice cream which conforms to the standards prescribed under the Prevention of Food Adulteration Rules is a milk product, than it is exempt from assessment to sales tax and if it is not a milk produet, then it is not exempt from assessment. The expression 'milk product' itself is not defined in the Act. But the Courts have held that such expressions must be understood not by their dictionary or technical or scienting meaning but as understood in common parlance by those who ordinarily deal is such commodities. In Ramavatar Budhaiprasad v. The Assistant Sales Tax Officer the Supreme Court considered whether betel leaves were vegetables within the meaning of item 6 of Schedule 11 of the C.P. and Berar Sales Tax Act, 1947. It held that the word vegetables' must be construed riot in any technical sense nor from the botanical point of view but as understood in common parlance and that it must be construed in its popular sense meaning that sense which people conversent with the subject-matter with which the statute is dealing would attribute to it. This method of interpretation was reiterated by the Supreme Court in later cases. In Commissioner of Sales Tax v. Jaswant Singh Charan Singh , while considering whether charcoal was included in the word 'coal' specified in entry I of part Iii of Schedule Ii to the .Madhya Pradesh General Sales Tax Act, 1953, the Supreme Court observed that while constrning the word 'coal' the test that would be applicable is what is the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word The Supreme Court further observed that 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. It further observed that while interpreting items in statutes like the Sales Tax Acts. resort should be had not to the scientific or 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. Again, in State of Gujarat v, Prakash Trading Company the Supreme Court while considering whether tooth-paste was a toilet article within the meaning of entry 21A of Schedule 1 to the Bombay Sales Tax Act, 1959 as amended by Gujarat Act No 25 of 1952, observed that the Court was concerned with the concept of a toilet article as understood is common parlance. In Mahavir Sahu Ramahri Sahu v. The Sales Tax Officer the Supreme C^urt held that lemons and chillies were vegetables within the meaning of item No of the Schedlile to the Orissa Sales Tax Act, 1947 and in so holding applied the principle enmuniciated in the case of Ramavatar Budhai Prasad, namely, that a word which is not defined in the Act 'but which is a word of every day use must be construed in its popular sense. We may finally refer to a Full Bench decision of the Kerala High Court in Krishna lyer v. State of Kerala ' The point for consideration before the Pull Beach was whether green ginger came under the category of vegetables. Following the rule laid down by the Supreme Court in Ramavatar Budhaiprasad's case, the High Court observed as follows :

IT is not the dictionary meaning of a term that will invariably prevail in the construction of a statute The rule of interpretation in such cases is that particular words used by the Legislature in the denomination of articles should be understood according to the common commerial understanding of the term used and not in their scientific or technical sense, for the Legislature does not suppose our merchants to be naturalists, or geologists or botanists.'

(7) Bearing in mind the manner of interpretation as explained in the decisions cited above, we have to consider whether ice-cream is a milk product. No decision has been brought to our notice where ice-cream was or was not' considered to be a milk products. But we may seek: guidence from various decisions cited at the bar in respect of various other articles.

(8) In Nestles' Products (India) Ltd. v. Commissioner of Sales Tax' the Allahabad High Court held that powdered milk and condensed milk were not milk within the meaning of notification No. S.T. 119/X-928 dated 7th June, 1968 'under which milk products such as Chhena, Dahai, Khoa, butter and cream but excluding sweetmeats and products sold in sealed containers' were exempt from tax. The High Court gave the following reasons:

THISnotification distinguishes 'milk from milk products and includes khoa and cream among milk products If they are milk products there is no reason for saying that condensed milk and milk powder also are not milk products Milk powder is produced simply by evaporating all water contents of milk; it differs from khoa only in the extent to which the water contents are evaporated. Nothing is added when milk powder is prepared and nothing is added when khoa is prepared. If' khoa is treated as milk product, milk powder also must bs. Condensed milk is prepared from milk after adding sugar to it; when sugar is added to milk, the product can hardly be said to be still milk and it is undoubtedly a milk product.'

(9) In J. Shamdaz v. State of Andhra Pradesh' Zarda was held to be a tobacco product and not exigible to sales tax by virtue of item 7 of Schedule 5 of the Andhra Pradesh General Sales Tax, 1957. Under item 7 of schedule 8 of the said Act, 'tobecco and all its products' were exempt from tax The High Court found that the Chemical analysis of the two brands of Zarda indicated that there was 64 2 per cent of tobacco in one brand and 87.80 per cent in the other the other contents being moisture, essential oil and silver in minute quantity. The High Court held that having regard to the substantial percentage of tobacco contents, Zarda could certainly be held to be a tobacco product. In B. Dar Laboratoriesy The State of Gujarat the Gujarat High Court held that a p'eparation containing 55 per cent -. snuff, 40 per cent water, 2.5 per cent preservative and 2.5 per cent flavouring agents manufactured in the form of a paste and described as Ipco Dental Cremy Snuff was within the meaning of item No. 4 of the First Schedule to the Central Excises and Salt Act, 1944 which read as under :--

TOBACCO'means any form of tobacco, whether cured or uncured and whether manufactured or rot, and includes the leaf, stalks and stems of the tobacco plant, but does not include any part of a tabacco plant while still attached to the earth.'

The word 'manufacture' was defined in section 2(2) of the said Act as under :

Manufacture' includes any process incidental or ancillary to the completion of a manufactured producd; and (i) in relation to tobacco, includes the preparation of cigarattes cigars, charoots. biris, cigarettes or pips or hookah tabacco, chewing tobacco or snuff; xx. xx. xx. xx. '

The High Court gave the following reasons for its opinion ;

The principle which emerges from these decisions is that even when a process is adopted for convenience of sale or making the article more acceptable to the customers, if the article in question retains its essential * * * taxed as such article only and the processing would make no difference. The: physical state or even the composition may change but so long as the essential character of the article continues to remain the same, it has to be taxed as that commodity alone. '

INJogMra Roy v. State of Orissa the Orissa High Court held that. Mitha Gundi was a tobacco product within the meaning of entry 35 in notification Nos. 33925 C.T.A. 130/57- e dated 20th December, 1957 by which 'tobacoo and all iis products' were exempt from assessment. The High Court found that is Mitha Gundi tobacco ' constituted apercent A contention, was raised that in order to be tobacco product, the product must contain essen tially the charecteristics of tobacco and that as in Mitha Gundi the tobacco contents constituted per cent or less, essentialy it was a preparation of tobacco but not a tobacco product. The High Court negatived this contention with the following observations :

'With our best endeavor after looking into all dictionaries it is.not possible to get a precise definition of 'produets'. It is not clear that in order to be a tobacco product it must be wholly produced out of tobacco. In such a case its meaning as understood in common parlance should be adopted xx. xx. xx. xx xx xx. ' xx. xx. xx. How is a particular commodity having tobacco contents treated by a particular class of consumers and sellers. If with the consumers a particular commodiry is very popular on account of its having tobacco contents, then to that class of consumers it is. a tobecco product. In other words, persons who cannot at ail take Mitha Gundi despite low percentage of tobacco, must take it as a tobacco product and will be reluctant to purchase such articles, xx xx. xx. Judging from this pointof view we hod that. Mitha Gundi is a tobacco product on account of its effectiveness on a particular class of consumers who are accustemed to take it? The High Court further observed that : A taxing statute must be clear and precise in its incidence of taxation. If any of the provisions is ambiguous the doubts must be resolved in favor of the subject. The Legislature by using 'tobacco products' created a confusion. No definition was given as to clearly limit its meaning. In such circumstance it is difficult to hold that preparations of tobacco cannot be said to be products. According to us no distinction can b' made between tobacco preparations and tobacco products.'

IN.v. The State of U P.' the Allahabad High Court held that Lassi was a milk product within the meaning of notification No. Sr.-91!/Xdated3'st March, 1956by which 'milk and milk products such as chhana dahi.khoa butter and cream but excluding (1) products sold in sealed containers; and (2) sweetmeats' were exempt from asiessments. The High Court gave the following reasons :

Lassi after aall is prepared by merely adding water to dahi and oburning it. It is beyond dispute that dahi is a milk product and, in our opinion, the addition of water to it results in a preparation which cannot but be considered as a milk product also. We should bs guilty of indulging in hair-splitting if we did not treat Lassi as a milk product merely because 'it was produced from dahi and not directly from milk.

In Commissioner of Sales Tax v. Lucknow Cooperative Milk Supply Union Ltd.' the Allahabad High Court held milk shake was a milk product within the meaning of notification No. ST-35C6/X dated 10th May, 1956 by which milk and milk products such as chhena, dahi, khoa, butter and cream' were exempt from assessment The High Court noticed that milk shake was prepared by shaking milk with a little sugar and so me flavouring article. The High Court was of the view that the milk shake came under the catagory of milk itself but held that even if it was not milk. certainly it would be a milk product. In D. S. Bist v. Commissioner of Sales Tax', in the Allahabad High Court held that tea- leaves even after they were subjected to a process of drying beating and roasting and rendered fit for sale in the * * are agricultural produce within the meaning of the proviso to section 2(1) of the U.P. Sales Tax Act which read as follows :

Provided that the proceeds of the sale by a person of agricultural or horticultural produce xx xx xx xx shall be excluded from his turnover.'

The High Court noticed that after the tea leaves were plucked from the fields, they were subjected to a process of drying, beating and roasting, that during this process, the colour of leaves was changed from green to yellowish, that the leaves were then subjected to grading with sieves of various sizes, that the fanning machines were also used in completing the grading process, that the produce was then finally roasted with charcoal for obtaining suitable flavour and colours and that it was this final product which was eventually sold in the market. The High Court posed for itself the question whether this process changed the nature of the commodity. It answered this question in the following words:

INour opinion, the process of grading and roasting is not materially different from the process through which tea-leaves have already undergone. It is not a manufacturing process. The loose tea even after grading and roasting still remains tea. It is true that the process of grading and roasting is a more sophisticated process undertaken to fetch a better price and easy market for the tea. The intention of the legislature being to ex-mpt the sale of agricultural produce by the cultivator, he should not be deprived of the benefit of the exemption merely because the subjects the tea leaves to a refined and commercially batter process in order to fetch better price. So long as the nature of the produce remains unaltered, it does not make any difference, if the processing js long and complicated. The same is true about packing. Loose tea is packed convenient packages to facilitate its sale and would be legitimate process which an agriculturist is entitled to undertake to render the produce fit for sale in the market.'

(10) In M/s Indodan Milk Products Ltd. v. Commissioner of Sales Tax a Full Bench of the Allahabad High Court held that condensed milk was not a milk product bit was milk itself within the meaning of notificationtion No. ST-511/X, dated 31st March, 1956 according to which 'milk and milk products such as ehhena, dehi, khoa, butter and cream but excluding (1) products sold in sealed containers and (2) sweet holding that condensed milk came within the expression ' milk ' itself, and that it was not a milk product as held in an earlier decision of the Allahabad High Court in (1963) 14 STC 606, already cited, and that condensed milk was exempt from assessment as milk, the Full Bench defined a milk product in the following terms :

It is quite possible that when milk is processed a commodity which is entirely different from milk and which cannot be identified as such may be obtained. The commodity so obtained can be described as ' milk product '. Its composition and use will be basically different from that of milk obtained in natural form. Common examples of such produces are ghee, chhena, cream, butter and khoa etc. All these products are all obtained by subjecting natural milk to a process but then in quality, constitution and nature of their use they are basically different from milk.' 10. The cases referred to above have been cited by the learned counsel for the petitioners in support of the contention that ice-cream is a milk product. We shall now refer to some of the cases cited by the learned counsel for the respondents. In Delhi Mishtanna Bhandar v. State of Assam', the Assam High Court held that although milk, flour and sugar were exempt from sales tax, sweets prepared from milk, flour and sugar were not exempt from sales tax. It has to be noticed that what were exempt under the Assam Sales Tax Act were milk, flour and sugar and not the products of milk, flour and sugar. In State of Punjab and others v. Chandi Lal Kishori Lal', the Supreme Court held that cotton seeds did not come within the scope o' section 5(2)(a)(vi) of the Punjab General Sales Tax Act, 1948. The Supreme Court observed that though cotton in its unginned state contained cotton seeds, the cotton and the seeds were separated by the manufacturing process of ginning and the seeds so separated could not be said to be cotton itself or part of the cotton. It has to be noticed that what was included in section 6(2)(a)(vi) of the said Act was cotton implicate and not cotton products In Goel Industries (Pvt ) Ltd. v. Commissioner of Sales Tax', the Allahabad High Court held that ice was not water and was .not exempt under section '(l)(a) of the U.P. Sales Tax Act, 1948 under which * * water was exempt from tax. Here again, it had to be noticed that what was exempt from tax was water simplicities and not water products The last case cited on behalf of the respondents is a decision of the Supreme Court in Ganesh Trading Company v. State of Haryana', in which it was held that although rice was produced out of paddy, it was not true to say that paddy continued to be paddy even after dehusking and that rice and paddy were two different things in ordinary parlance. Here again, it has to be noticed that what was exempt was paddy simplicities and not paddy products. The cases cited on behalf of the respondents do not, in our view. support their contention.

(11) The petitioner have brought to our notice the following instances which, recording to them, show that ice-cream has been understood in common parlance as a milk product. Firstly, in Appendix to the prevention of Food Adulteration Rules the expression 'milk products' has been defined in A. 11.02 as follows: -

''Milk Products' means the products obtained from milk such as cream, malai, curd, skimmed milk curd, channa, skimmed milk channa, chesse, processed chease, ice-cream, milk ices, condensed sweetened and unsweetened, condensed skimmed milk sweetened and unsweetened, milk powder, skimmed milk powder, partly skimmed milk powder, khoa, infant milk food, table butter and deshi butter.' Ice-cream is thus included in the definition of milk products. Secondly, the-'Gazettee of India (Extraordinary) dated May, 5, 1973, contains an order of the Central Government entitled 'Delhi, Meerut and Bulandshahr Milk and Milk Products Control Order, 1973.' Section 3 of this order prohibits the manufacture, sale, service, supply and export of milk and milk products during the period 7th May, 1973 'to 16th July, 1973. The proviso to this section exempts certain items from the restrictions prescribed under the section. Sub clause (i) of this proviso says that 'nothing in this clause shall supply to the use of milk for the manufacture of an j to the sale. service, supply or export of ice-cream. xx.' This order would indicate that the Government treated ice-cream to be a milk product. Thirdly, the Delhi milk scheme published a notice in the newspapers fixing the price of milk and milk products marketed by the Delhi Milk scheme with effect from 5th November, 1973 and in this notice, the price of ice-cream was also fixed. Finally, in the publication by the Indian Standards Institution is 2802 1964 which has been entitled as 'Indian Standard Specification for 'Ice-cream' lee cream has been 'described in Standard No. '0.2 as under:

ICE-CREAMis a widely consumed food and is a recognised medium to help increasing the milk intake.'

The Prevention of Food Adultration Act and the Rules framed there under govern the manufacture and sale of various articles of food. Such articles of food include items of common use and the; description of such articles of food in the said Act and the Rules is such as 'has to be understood by persons who manufacture or sell such articles and those. who buy them Similar is the position with the article described in the Gazette of India and the notice issued by the Delhi Milk Scheme which have been referred to above. Ice-cream has been considered in the above said Rules, Gazette and notice as a milk product. thereforee, if the test laid down in the judgments of the Supreme Court and the several High Courts cited supra is to be applied, namely, that entires in the texations statutes, like the Sales Tax Act, have to be interpreted in the manner they are understood in common parlance or in commercial circles, then ice cream satisfies this test and has to be treated as a milk product within the meaning of entry No. 12 in schedule Ii of the local Act. It might be that ice cream is a different commodity than fresh milk. But it is certainly a milk product.

(12) The learned counsel for the respondents has drawn our attention to entry No. 16A under which Dahi, butter and khoa are specially exempted from assessment to sales tax and on the basis of this entry, it is contended that it was not the intention of the legislature to exempt from assessment the sale of all milk products other than those mentioned in entry No. 16A. We are unable to accept this contention. Dahi, butter and khoa may come under the category of milk products. but it does not follow that these are the only milk products except Dahi, butter and khoa were to b; exempt from assessment, than. they would have omitted the words 'milk products' from entry. No. 12 or the woids

MILKproducts' should have specifi'cally defined. In our view. entry No. 16a is not exhaustive of all milk products which are exempt from assessment. The learned counsel has also referred to entry No 16 which had exempted Ghee from assessment but which has been dated from 1st July, 1966 and has contended that Ghees also was a milk preduct but the Legislature did not treat it as an exempted article. We can accept this contention only to this extent that Ghee, though a milk product, was not exempt from assessment. But we cannot accept the further contention that other milk products also were not exempt from assessment.

(13) It has also been contended on behalf of the respondents that if the rule of ejusdem generis is applied to entry No. 12, then fresh milk is the genus from which the expression 'milk products' has to take its colour and that it is only such articles which are directly produced from fresh milk that can come under the category of milk products. We are unable to accept this contention also. Firstly, the use of the adjuct 'and' between fresh milk and milk products is incomptible with the rule of ejusdem generis. The use of the adjunct clearly indicates that milk product was a Commodity which was distinct from fresh milk. Secondly the use of the words 'milk products' instead of 'fresh milk ' .products' also indicates that articles which come under the category of milk products need not be the direct products' of fresh milk but may be the products of milk only. Thirdly, even if the rule of ejusdem generis is applied, we do not find any difficulty in blinking ice cream within the category of milk products because ice cream is in fact produced from fresh milk although .the fresh milk undergoes a change during the process.

(14) It has been finally contended on behalf of the respondents that if all vartieties of ice-cream are treated as milk products and 'therefore exempt from assessment, then even ice-cream, which has no milk content or very little milk content in it, will also be eligible for exemption. We have already referred to the standards prescribed by the Prevention of Food Adulteration Rules for ice-cream and we have proceeded on the basis that the ice-cream which comes under the category of milk products within the meaning of entry No-12 is ice-cream which conforms to the standards prescribed under the said Rules. There is no, difficulty in excluding from entry No 12 the so-called ice-cream, even if any, which has absolutely no milk content, because such an ice cream cannot be called a milk product There would, however, be some difficulty in respect of ice cream which while having some milk content, however does not conform to the standards prescribe under the Prevention of Food Adulteration Rules. But such a second schedule exists in the cases of other entries in the Second Schedule. For in tance, standards are prescribed for fresh milk both of cow Or buffalo. Fresh milk which is sold by a vendor may not conform to such standards and might be adultrated by him by the addition of water Nonetheless, so far as the assessment to sale tax is concerned, even adulterated milk will be exempt from assessment. It is for the Legislature to devise a method which would prevent the sale of adulterated articles of food from escaping assessment.

(15) As aresult of the above discussion, we hold that ice cream is a milk product within the meaning of entry No. 12 in the Second Schedule of the Act and by virtue of section 6 of 'the Act the sale of ice-cream is exempt from assessment to sales-tax. So tar as the writ petitions are concerned, the same are accepted and the assessment orders levying sales tax on the sale of the ice cream by the petitioners are quashed. So far as the .Sales-tax references are concerned the following question has been refarred in Sales Tax Reference No 1/73:- stances of the case, the learned Additional District Judge has correctly held that ice-cream is not covered by entry No. 1-2 of the Second Schedule under the 'Local Act' and is liable to sales tax both under the Local and Central Act. This question is answered in the negative, i.e., in favor of the assessed and against the Revenue. In Sales Tax Reference No. 16/73, the following question has been referred :

Whether on the fasts and in the circumstances of the case, turnover pertaining to ice-cream is exempt under entry No. 12 of the Second Schedule appended to the Act read with section 6 of the Act

This question is answered in the affirmative, i e., in favor of the assessed ' and against the Revenue- In Sales Tax Reference Nos. 20 to 30/73, the following to questions have been referred :

'1. Whether on the facts and in the circumstances of the case, turnover pertaining to ice-cream is exempt under entry No. 12 of the Second Schedule appended to the Act read with section 6-of the Act?

2.Whether on the facts and in the circumstances of the case. the amounts of commission paid to the hawkers were cash discount and could be deducted from the sale price as provided under section 2 (h) of the Act'

(16) The first question in all these references in answered in the affirmative, i.e., in favor of the assessed and against the Revenue So far as the second question is concerned, no arguments were addressed before us challenging the finding of the learned Addition District' Judge on this point. thereforee, this question is answered in the negative, i.e., in favor of the Revenue and against the assessed. There shall no order as to costs either in the writ petitions or the sales tax references.

P.N. Khanna, J.

(17) Entirely agree with the observations and conclusions of my learned brother, Ansari, J. I may however, add that when the words in a statutory provision are clear and involve no ambiguity, as is the present case, they have to be given their full and natural meaning. They do not call for any elaborate interpretation. The reliance by the revenue on the rule of ejusdem generis for interpreting the words, ' milk products', is wholly misplaced. This rule has to be applied with great care and caution Generally speaking, words and expressions would be given their plain and ordinary meaning, which cannot be cut down or curtailed unless they in themselves are clearly restrictive. The rule of ejuadem generis would be applied to determine the correct meaning of a general word or expression capable of several connotations, when it follows particular or specific words of the same nature as itself. In other words, the rule is pressed into service when particular words or expressions arc followed by general words so as to indicate that the particular words or expressions cannot be considered exhaustive enough to take within their sweep all what the legislature intended to convey and cover. The general words or expressions which follow are then meant to cover any thing of the same nature, which possibly might have been left so uncovered, it is in such a case that the meaning of the general words is limited and restricted to the species of the same genus, which the particular words represent. In Amur Chandra Chakraborty v. The Collector of Excise', the Supreme Court observed that ' This doctrine applies when (i) the statute contains an enumeration of specific words, (ii) the subjects of the enumeration constitute a class or catagory, (iii) that class or catagory is not exhausted by the enumeration ; (iv) the the general term follows the enumeration, and (v) there is no indication of a different legislative intent.'

(18) In the preseat case, the words 'fresh milk whole or separated' provide a complete description of what was intended to be exempted. There is no vagueness left about it. Apart from that, '' milk products ' were also considered to deserve the exemption. That is why the entry was made to read as ' fresh milk whole or separated and milk products'. The attempt to regard the expression, 'milk product' as general and then to cut inio its meaning to understand by it only the residue which may be left when the whole milk is separated, as was contended by the respondent's learned counsel, is wholly uncalled for and futile. There is no scope for invoking the rule of ejasdem generis when interpreting the expression ' milk products ', which is .an unambiguous and clear expression well known and easily understood by the common man. The attempt of the revenue to call to its aid a technical rule of interpret ation, in order to understand a well understood expression, and thereby to divert one's attention from its natural meanings and in this process to deny ice-cream, which is well understood to be a milk product, the exemption it enjoys under the relevant entry in the schedule, is without any justification. The entry has to be interpreted in the manner in which it is understood in common parlance. Ice-crearn as every one know is milk product and there was hardly any need to indulge in uncalled for hair splitting and making an appeal .to the technical rules of interpretation. I am entirely in agreement with my learned brother the ice-cream being a milk product within the meaning of entry 12 in the Second. Schedule of the Act is exempt from assessment under the Act. and that writ petitions have to be allowed and the questions posed in the references have to be answered in the manner in which they have been answered by him, without any order as to costs. Petition allowed.


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