B.N. Banerjee, J.
1. 'Chhana', according to the Rules framed under the Prevention of Food Adulteration Act, 1954, means 'the product obtained by precipitating the curd from boiling whole milk cow and buffalo by addition of lactic and oltric acids or any other suitable coagulating agent'. The question for my consideration, in this Rule, is whether 'Chhana' is 'cooked food', as in Item 7 of the Schedule to the Bengal Finance (Sales Tax) Act, 1941 and as such exempt from faxation, This identical question arose between the same parties in Civil Rule No. 1924 of 1960 (Cal). On that occasion I remanded that matter to the Commercial Tax Officer with a direction upon him to decide, on evidence, whether 'Chhana' can all be treated as 'cooked food'. After remand, the Commercial Tax Officer took evidence and came to me conclusion that 'Chhana' should not be treated as 'cooked food'. The finding of the Commercial Tax Officer are being disputed in this Rule on the two-fold ground, (1) that the findings are opposed to the evidence on record or alternatively, based on surmises and conjeotures and (2) that the Commercial Tax Officer failed to conform to the directions contained in the remand order.
2. The petitioner says that he is an Aratdar, that is to say a wholesale dealer, in 'Chhana'. On 28-1-1960, the respondent No, 1 Commercial Tax Officer started a case for assessment of sales tax upon the petitioner and called upon him to produce his books of account. The petitioner objected to the proceeding, inter alia, on the ground that 'Chhana' being 'cooked food' was exempt from taxation under Section 6 read with Item 7 of the Schedule to the Bengal Finance (Sales Tax) Act, 1941, That objection was over-ruled. Aggrieved thereby, the petitioner moved this Court, under Article 226 of the Constitution, and obtained Civil Rule No. 4924 of 1960 (Cal). That Rule, as I have already stated resulted in a remand and was disposed of with the following observations:
'Section 6 of the Bengal Finance (Sales Tax) Act provides that no tax shall be payable on of sale of goods specified in the first column of the schedule, subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereof. In the schedule milk is excepted as also cooked food, other than 'cakes, pastries, biscuits and sweetmeats except when sold in sealed containers, It is nobody s case that the petitioner sells 'Chhana' in sealed containers. The question for my consideration is whether 'Chhana' is cooked food. 'Chhana' means the product obtained by precipitating the curd from boiling whole milk of cow and buffalo by the addition of lactic or citric acids or any other suitable coagulating agent (See the Prevention of Food Adulteration Rules, 1955, Appendix B). The Dictionary meaning of cooking is 'to prepare food by the action of heat' (see Oxford English Dictionary). It is difficult to dispute that boiling is no part of cooking. In these circumstances, there is a prima facie case that 'Chhana' is cooked food. Mr. P. K. Banerjee, learned Advocate for the respondents Nos. 1 to 4, however, argued that I should not proceed on me dictionary meaning, but decide, on evidence as to how 'Chhana' s praparad and whether it fulfils the description of cooked food. I am not prepared to take evidence in this Court. Ultimately, both Mr. P. K. Roy learned Advocate for the petitioner and Mr. P. K. Banerjee, learned Advocate for the respondents Nos. 1 to 4, agreed that the matter should be remanded before the Commercial Tax Officer, with direction to him to allow the petitioner liberty to adduce evidence as of the method of preparation of 'Chhana' and to decide on the evidence as to whether 'Chhana' satisfies the description of cooked food. The Commercial Tax Officer will also be at liberty to take expert opinion on the point with liberty to the petitioner 'to cross-examine the experts, whose opinion the Commercial Tax Officer may take. Thereafter, the Commercial Tax Officer shall decide whether 'Chhana' satisfies the description of tax free goods, being cooked food, or whether it does not.'
After remand, the petitioner gave a practical demonstration of preparation of 'Chhana' before the Commercial Tax Officer. In paras 23 and 24 of the petition, the petitioner states that he produced several 'Chhana' producers for examination by the Commercial Tax Officer and those producers filed statements to the effect that 'Chhana' was produced by boiling milk in an oven and thereafter by adding 'Chhana water', that is to say, lactic acid, thereto. These witnesses, petitioner says, were not cross-examined by the Commercial Tax Officer nor did the Commercial Tax Officer take expert advice under liberty given to him by the remand order. These allegations are denied in the affidavit-in-opposition but it appears from the order passed by the Commercial Tax Officer, after remand, that he took evidence of nine 'Chhana' dealers and witnessed a practical demonstration of 'Chhana' preparation. The conclusion arrived at by the Commercial Tax Officer is hereinbelow quoted:
'I regret to point out that there appears to have arisen some confusion with regard to the connotation of the term 'cooking'. It is quite true that the cooking is to prepare food by the action of heat, but in the preparation of Chhana milk is first boiled which is a part of cooking. But by boiling, or cooking milk itself, 'boiled milk' is prepared and not 'Chhana'. The boiled milk does not change the colour, form or the nature of the whole milk. 'Chhana' is prepared only when lactic or citric acids are added to the boiled milk and this process of admixture does not require any further application of heat. So, the process of boiling milk is a cooking process, while the process of admixture of lactic or citric acids cannot by any means be called a 'cooking process'. 'Chhana' is not prepared in the same way as other cooked foods are done. In preparation of 'Chhana' heat is applied to the milk only to hasten up and to achieve perfection in separating the protein contents of the milk from the residue liquid portion, 'Chhana' is nothing but the protein contents of the milk separated from its liquid portion of milk by acid agent. Even without applying heat e protein contents can be separated from the liquid portion of milk by acid agent. Application of neat to the milk is only a preliminary process and this is adopted only to make the milk suitable for perfect separation of the protein contents from the liquid portion. The ingredients for preparing 'Chhana' are (1) Hot Milk and (2) some acid agents. These two ingredients are mixed up in required proportion and by chemical reaction the protein contents (Chhana) of the milk are separated from the liquid portion. In this process, in the separation of protein contents from the liquid portion no boiling or cooking whatsoever is performed. In the above view of the matter 'Chhana' cannot be considered as a cooked food and as such sense thereof cannot be held to be exempt under Section 5(2)(a)(i) of the Act.'
3. On the aforesaid findings the Commercial Tax Officer, by his order dated 25-1-1963 directed the petitioner to produce his hooks of account for the purpose of assessment.
4. In my opinion, the conclusion arrived at by the Commercial Tax Officer, on admitted facts, cannot be sustained. In his order, quoted above, the Commercial Tax Officer observed that there was some confusion with regard to the connotation of the term 'cooking' In my opinion, there was surely an element of confusion in the order made by the Commercial Tax Officer. Cooking is a process which consists of preparation of food by action of heat. But in course of preparation of food, other actions or series of actions may be employed, namely, dressing the stuff after heating. 'Chhana' according to the finding, is made by adding acid to boiled milk. Mr. N. C. Chakravarty learned Government Pleader, did not, in his fairness, support that part of the finding of the Commercial Tax Officer wherein he slated that even without applying heat 'Chhana' could be ex-tracted out of milk, because that finding was based on no evidence whatsoever. He, however, strongly supported the other part of the finding of the Commercial Tax Officer that boiling did not produce 'Chhana' but an action after boiling resulted in the extraction of 'Chhana' from boiled milk. On the admitted facts I find that boiling of milk is part of the process of preparation of 'Chhana' The mere fact that other actions are necessary to extract 'Chhana' out of boiled milk does not make the process anything other than cooking.
5. For the reasons aforesaid, I hold that it has not been proved that 'Chhana' is not cooked food. If that is so, it is difficult to levy sales tax on 'Chhana' falling as it does within Item 7 of the Schedules to the Bengal Finance (Sales Tax) Act.
6. Mr. Chakravarty contended as a last resort, that 'Chhana' was not by itself food but various kinds of food may be prepared out of 'Chhana'. I am unable to uphold this contention, because it is common knowledge, of which I take judicial notice, that 'Chhana' is a well known form of milk food.
7. In the result I quash the impugned order, dated 25-1-1963. Let a writ of Certiorari issue accordingly.
8. The petitioner is entitled to the costs of this Rule, which I assess at five gold mohurs.