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TMI Blog1975 (1) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax Tribunal by way of second appeals against these decisions. In these appeals, the contention of the department was that although the counter sales were for consumption outside the hotel, still the articles of food in question were taken away by the customers from the hotel for consumption outside and it could not be said that they were "served" within the meaning of the said expression in entry No. 14 of Schedule A to the said Act which confers the exemption. This contention was rejected by the Tribunal. After taking into account the legislative history in connection with the said entry No. 14 of Schedule A to the said Act, the Tribunal came to the conclusion that the word "served" in the said entry must be given a broad meaning, and consequently, counter sales at the hotel of the respondent were covered by entry No. 14 of Schedule A and they were exempt from the sales tax. Both the appeals were allowed by the Tribunal and as aforesaid it was held that the said counter sales were not liable to sales tax. The question, which has been referred to us for our consideration, is as follows: "Whether, on the facts and in the circumstances of the case and on a true and proper inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chedule A, but allowed to be taken outside the assessee's eating house came within the purview of that entry and, therefore, not liable to be included in the total turnover of the assessee for the purpose of levying sales tax. The Sales Tax Tribunal held that "service" contemplated by entry No. 14 was service at table and not at counter and, therefore, cooked food and non-alcoholic drinks, in order to come within the purview of entry No. 14 of Schedule A, must be served at a table by the restaurant or the eating house at its own premises or outside the said premises at the rates specified per person. The Tribunal further held that in the case of articles taken away by the customers outside the premises of the restaurant or the eating house, no "service" was rendered by the assessee and, therefore, it could not be said that these articles were served for consumption within the meaning of entry No. 14. The Division Bench upheld the view taken by Tribunal. We find it difficult to accept the submission of Mr. Cooper, which we have set out earlier. On a plain reading of entry No. 14, which we have already set out above, all that appears to be required to claim exemption is: (1) that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , namely, that the cost of food and nonalcoholic drinks consumed at one time should not exceed one rupee per person. The Legislature, therefore, while enacting the said Act introduced entry No. 14 of Schedule A in different terms and instead of confining the exemption to cases where food and non-alcoholic drinks are consumed "at the eating establishment" extended the scope of the exemption by providing that the consumption may be "at or outside" the eating establishment. Taking into account this legislative history, the Division Bench declined to interpret the word "outside" in entry No. 14 of Schedule A as meaning only immediately outside as contended by the department and came to the conclusion we have set out earlier. In interpreting the words of this entry, it would certainly be not out of place to refer both to the former Act or Acts and to the ascertained evils to which the former Act or Acts had given rise (see Eastman Photographic Material Co. v. Comptroller-General of Patents, Designs and Trade Marks[1898] A.C. 571 at 576. From the decision of the Supreme Court in State of West Bengal v. Subodh Gopal and Others[1954] S.C.R. 587 at 627-628., it appears that it is permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee suggested an entry, being entry No. 11 of the list of exemptions annexed to the Report, which is in identical terms to entry No. 14 of Schedule A to the said Act. It is also significant that Dr. Jivraj Mehta, the Finance Minister of the then State of Bombay, in his speech in the Legislative Assembly on the Bombay Sales Tax Bill, 1959, stated in connection with this entry (which was entry No. 35 in Schedule A annexed to the said Bill) that it had been provided in accordance with the Committee's recommendations that the exemption would be admissible whether or not the food or drink served was consumed at the eating place itself. This makes it clear that the change effected in wording the present entry, viz., entry No. 14 in Schedule A to the said Act, differently from the said former entry was effected with a view to confer the exemption although such food and drink may be carried away for consumption outside the eating place. We have, of course, to see whether this intention has been given effect to in entry No. 14 or the words used are such that they have failed to give effect to the said intention. Coming to the language of entry No. 14 itself, we find that it is signific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the class of establishments, which was intended to be covered, it is very difficult to contemplate that such an establishment would provide for service outside the establishment itself. Hence to give this entry the construction suggested by Mr. Cooper would be to unduly limit the scope of the exemption sought to be granted. We cannot also lose sight of the fact that in an eating establishment, which might have a self-service counter, the service would remain the same whether the food and drinks are consumed in the establishment or outside it, and if Mr. Cooper's contention were correct, all service of food and drinks at such establishments would have to be excluded from the benefit of the exemption conferred by entry No. 14, for which there seems to be no warrant. In view of this, we are unable to accept the contention of Mr. Cooper that to get the benefit of the exemption conferred by entry No. 14, it is necessary that the food and drinks must be served, in the limited sense set out earlier, by the assessee at the place where they are intended to be consumed. In our view, the Tribunal has come to a correct conclusion regarding the scope of this entry. As far as the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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