9911796707
TMI Blog1988 (8) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the fried and salted groundnut remains the same commodity, i.e., oil-seed." The non-applicant, M/s. Shanker Namkin Bhandar (hereinafter referred to as "the assessee") is a partnership firm and owns a Namkin Bhandar. By notification dated 28th July, 1972, issued in pursuance of the third proviso to sub-section (1) of section 3 of the Act the State Government prescribed that for the purpose of clause (c) of sub-section (1) of section 3 the limit in respect of dealers dealing exclusively in deshisweetmeats and namkins prepared by themselves shall be Rs. 50,000. In relation to the assessment year 1973-74, it was claimed that the assessee was not liable to be assessed for the sales tax for the reason that the turnover of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, sales of salted and fried groundnuts could not be taxed. The said view of the learned single Member was affirmed by the Division Bench of the Board of Revenue in Special Appeal. The learned Members constituting the Division Bench of the Board of Revenue held that halvais normally deal in a wide range of products and considering the physical constraints, cooking schedule, business routine, sitting hours and other relevant factors, it is difficult to conceive of a situation where a halvai can personally prepare all the products before sitting at the sale counter and that some help is required for the various operations involved and that the word "Prepared" in the notification dated 28th July, 1972 does not mean cooked or prepared persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be excluded? In my view the learned Members of the Board of Revenue have rightly held that the words "prepared by themselves" cannot be construed to mean -cooked or prepared personally" and that the said words would cover within their ambit the articles prepared by the assessee with the help of employees. In this context the learned Members of the Board of Revenue have compared the language used in notification dated 28th July, 1972 with the language used in the notification in respect of soap which says "soap when sold by a person making the soap himself, or by any other member of his family, provided that the maker does not use power at any stage in making the soap and does not employ said labour". This shows that whenever it was intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as whether salted peanuts and cashew-nuts fell within the category of either fruits or vegetables under the Excise Tax Act, 1927 and it was held that what constitutes a fruit or vegetable within the meaning of Excise Tax Act is what would ordinarily in matter of commerce in Canada be included therein and not what would be a botanist's conception of the subject-matter. In Deputy Commissioner of Commercial Taxes v. R. Kuppuswamy Chettiar [1976] 38 STC 587, a Division Bench of the Madras High Court has held that in order to be an oil-seed, the test to be applied is whether the commodity is generally used for the manufacture of oil. It is only those commodities which are in commercial circles dealt with as oil-seeds that are covered by the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting oil because in the process of frying of groundnuts there is loss of oil content and further the salted and fried groundnuts are much more expensive and no one uses them for the purpose of extracting oil and in common parlance salted and fried groundnuts cannot be said to be oil-seeds used principally for the extraction of oil. The learned Members of the Board of Revenue were, therefore, not right in holding that fried and salted groundnuts are oil-seeds and the sales of fried and salted groundnuts by the assessee were entitled to exemption to tax. Question No. 2 is, therefore, decided in favour of the Revenue and against the assessee and it is held that the fried and salted groundnuts cannot be regarded as oil-seeds and sales of fried ..... X X X X Extracts X X X X X X X X Extracts X X X X
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