2010 (3) TMI 1021 - HC - VAT and Sales Tax

Whether the assessee, manufacturer and seller of ice-cream/ice-candy does not fall within the ambit and scope of Notification No. 815 F. 4(72) FD Gr. IV/87-43 dated June 27, 1990? Held that - The class of dealers who are included in the said notification are halwai, keepers of hotels, restaurants, refreshment rooms and other eating establishments, tea stalls, dhabas and tandoorwalas. These words read ejusdem generis mean, in the opinion of this court, that the eating places and outlets and service centers where tea and other eatables are served for consumption by the consumers of such eatables are only included to be covered by the said notification and not the manufacturers of the items like ice-cream/candy which the present petitioner-assessee undoubtedly and unequivocally claims to be. This contention of the present assessee that manufacturer of ice-cream (candy) falls within the words other eating establishment was never raised before any of the three authorities below. Against assessee.

Summary

Issues:
Interpretation of the term "other eating establishment" in a tax notification for exemption eligibility.

Analysis:
The judgment pertains to a revision petition challenging a Tax Board's order denying an assessee, a manufacturer and seller of ice-cream/ice-candy, the benefit under a specific notification. The petitioner argued that they could fall within the term "other eating establishment" mentioned in the notification. On the contrary, the Revenue contended that the class specified in the notification did not include the manufacture of eating items, thus excluding the petitioner from the benefit. The High Court analyzed the notification's language and found that it covered eating places where food is served for direct consumption, not manufacturers like the petitioner. The court highlighted that the petitioner never raised the argument of falling under "other eating establishment" before the lower authorities, making it impermissible to introduce the claim at the revision stage. The court emphasized that a manufacturer selling to eating establishments cannot claim exemption under the notification, as it applies to outlets serving consumers directly. The contention that the petitioner falls under the category of "halwai" was also dismissed.

The court concluded that the petitioner's revision petition lacked merit and dismissed it without costs. The judgment underscores the importance of raising relevant arguments before lower authorities and clarifies that manufacturers of items like ice-cream/candy are not covered under the notification meant for eating establishments. The decision provides a detailed interpretation of the notification's scope and eligibility criteria, emphasizing the need for factual establishment of claims at the appropriate stages of proceedings.