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TMI Blog1996 (11) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... ent) 1 2 3 4 57 Cooked food including beverages not falling under entry 76A of this Schedule sold or served in, At the point of first sale in the State by a dealer who is liable to tax under section 5. 10 (i) hotels and /or restaurants, the turnover in respect of which is twenty lakhs rupess and above; and (ii) bar attached hotels and /or restaurants. It would be seen that when such a cooked food is sold or served, it is to be noted that the turnover up to 25 (20?) lakhs rupees is exempted and above the said limit, it was then taxable at 10 per cent. 2. At the other end, entry 122 speaks of milk products and its cognates, as specified thereunder. By the said entry, it is taxable at 8 per cent. The said entry is reproduced her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dients like vermicelli, sago and rice which are added to sugar syrup obtained by boiling equal quantities of sugar and water. Dry fruits like cashewnuts, kismis, tutti-fruiti and khus khus and fresh fruits like grapes, bananas, pineapple, mango, etc., are also added to the said cooked food. Hence falooda is a cooked food for the preparation of which boiling process is involved and sold as a beverage. 'Beverage' means, 'liquid prepared for drinking' as per dictionary definition....". It was contended before the first appellate authority that the sale turnover of cooked food including beverages sold or served in hotels and/or restaurants fall under entry 57 of Schedule I to the Kerala General Sales Tax Act, 1963 and thus it is liable to tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". It would be seen that the preparation of "falooda" has not been taken into consideration at all by the first appellate authority and what is weighed by it is the fact that the assessee was paying tax on ice cakes, falooda, etc., for the previous years treating it as a milk product. In addition, the said authority also has observed that even for the year in question, the assessee carried the view that "falooda" is also a milk product not covered by entry 57 of Schedule I to the Act. 7.. The Kerala Sales Tax Appellate Tribunal, Additional Bench, Kozhikode, by the order dated November 15, 1994, has recorded a conclusion that "falooda" would not be a milk product. The Tribunal has observed that the irresistible conclusion would be that "fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acteristic of inclusive instances. Obviously therefore "falooda" would not be understood as a "milk product". The Tribunal has also held that it is not a "milk product" as such. 10.. It is not possible to agree with the observations of the Tribunal that "falooda" will have to be treated as a multi-point item taxable at the general rate prevalent at the relevant time. Falooda is a cooked food. 11.. Naturally, therefore, the impugned order dated November 15, 1994 in T.A. No. 88 of 1994 of the Kerala Sales Tax Appellate Tribunal, Additional Bench, Kozhikode, will get modified to that extent directing the assessing authority to consider the tax liability with regard to "falooda" on the basis that it is a cooked food. The tax revision case ge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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