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TMI Blog1991 (7) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The assessee had annexed along with the application the abovesaid bill. The question for determination was as to the rate of tax payable on the sale of mori basudi which would be without sugar and without masala. In the determination application it was contended that the assessee manufactured condensed milk without any sugar or masala known as mori basudi. It was urged that mori basudi would be the milk condensed, which would be in a densed and condensed form without sugar and masala. It was urged that the sale of the abovesaid article would be tax-free under entry No. 10 of Schedule I to the Act. The learned Deputy Commissioner, after hearing the parties had come to the conclusion that the article namely, mori basudi would fall within residuary entry No. 13 of Schedule III, to the Act. The assessee had carried the matter before the Tribunal by filing First Appeal No. 7 of 1981. The Tribunal had partially allowed the appeal and had held that the correct entry applicable would be entry 50 of Schedule II, Part A to the Act, and thus it set aside the order regarding the applicability of the residuary entry 13 of Schedule III to the Act. Later on the assessee had submitted the neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with a pouchful measure of milk, simpliciter. "Mori basudi" will always be used as a sweet after adding sugar to the taste while milk would be used as milk only, though for a variety of purposes in a variety of modes and methods. Incidentally it may be noticed that the same principle has been reiterated by the Supreme Court in a later decision in Collector of Central Excise v. Parle Exports (P) Ltd. [1989] 75 STC 105; [1988] JT 454 (SC), treating the test of popular parlance as effective as it was in the light of earlier decisions. The abovesaid entry 10 which forms the part of the Schedule I to the Act is in respect of milk, whole or separated or reconstituted. It also speaks of butter-milk, curd, lassi and chakka. The abovesaid items have been made tax-free under entry 10 of Schedule I to the Act. Applying the principle of popular parlance it can be said without any hesitation that the article which is being sold in the name and style of mori basudi would never fall within the purview of abovesaid tax-free entry. Incidentally it requires to be appreciated that at the time of presenting the determination application, the bill which was produced along with the application by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be between 5 per cent to 25 per cent. It is a matter of common knowledge that ordinarily buffalo milk would be having the fat contents ranging between 6 per cent to 9 per cent. The same is the view expressed in the Table under Prevention of Food Adulteration Act, 1954. So far as Gujarat is concerned the fat contents of buffalo milk would be ranging between 6 per cent to 9 per cent. As noticed above the fat contents of mori basudi would be ranging between 15 to 25 per cent. Moreover there is a vast margin between the price or the rate of the milk and mori basudi. It therefore becomes clear that any person who manufactures and sells mori basudi not only calls and treats it as the same but also sells mori basudi as a kind of sweet prepared from milk. The same would be very true of a customer as noticed above. It, therefore, becomes clear that the Tribunal was perfectly justified in invoking the principle of popular parlance. We are in agreement with the reasonings adopted and conclusion reached by the Tribunal in this respect. Our attention has been invited to two decisions to which we shall make a reference pertinently. The first one is the Allahabad High Court decision in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by entering into the details of the facts and principles of the abovesaid case. Mr. Pathak has also pressed in service some portion from a book known as "Dud Ane Dudni Banavat" written by Dr. B.M. Patel and Dr. S.H. Vyas. Our attention has been drawn to a paragraph on page 193 of the abovesaid book. Some process or procedure for preparing certain milk products have been explained therein. It is stated therein that basudi can be prepared after boiling milk to a certain extent thereafter adding sugar to the same. But the abovesaid paragraph at page 193 falls under the chapter regarding various milk products. The very paragraph on which the reliance is sought to be placed would go to show that it is in respect of preparation of entirely a different commodity or milk product from milk. The process as detailed therein would go to show that by adopting the same an entirely different commodity comes into existence. Merely because it is said that while preparing basudi the sugar is to be added it cannot be said or culled out that basudi which does not contain sugar and which is known as mori basudi would be a form of milk. Lastly Mr. Pathak has invited our attention to an unreported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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