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TMI Blog2014 (4) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court on the following substantial questions of law: "1. On the facts and in the circumstances of the case, when fresh milk was converted into processed milk such as toned milk, standardized milk, skimmed milk and pasturised milk, is the Tribunal right in holding that there is no manufacture involved therein? 2. Whether the mere use of the generic term of 'milk' will result in 'no manufacture', and the milk purchased and the processed milk sold will result in the same commodity being sold? And 3. Whether on the facts and circumstances of the case and having regard to the fact that no guilty mind can be attributed to the petitioner, penalty under Sec.23 of the TNGST Act, 1959, for an alleged offence under Sec.45(2)(e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this gruond, the claim was rejected. Aggrieved by this, the assessee went on further appeal before the Tamil Nadu Sales Tax Appellate Tribunal, which confirmed the view of the Authorities below. 5. The Tribunal pointed out that milk marketed by the assessee did not undergo any processing to result in a different commodity, thus pasteurised milk retained its characteristics as milk; consequently, there was no manufacturing activity involved to result in a different commodity. It further pointed out that re-constituted or re-combined milk and fresh milk were included under Entry 6 to part B of the third Schedule to the Act, the concessional levy under Section 3(3) would be available only in respect of goods attracting levy under First Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecombined milk and milk drink with or without any addition thereto for being sold as a beverage". 7. Going by the fact that apart from fresh milk, recombined milk and milk drink with or without addition also qualified for exemption, it stands to reason that the statute treated fresh milk and recombined milk as two separate entities. Thus, the notification contemplated exemption on fresh milk as well as recombined milk and milk drink with or without addition, sold as beverage, treating them as different marketable goods. Thus, it is evident that the notification recognises the process involved in making fresh milk into recombined milk. Learned counsel further pointed out that even though the Act does not define the term 'manufacture' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. In the circumstances, the assessee is not entitled to concessional levy in respect of purchase of polythene films. 10. In this connection, he placed reliance on the decisions reported in (2009) 20 VST 276 (Allahaba Dugdh Utpadak Sahkari Sangh Limited V. Commissioner, Trade Tax, U.P.Lucknow), (1983) 52 STC 117 (Commissioner of Sales Tax V. Agarwal & Co.) and (2001) 124 STC 395 (State of Andhra Pradesh V. Indian Dairy Corporation). He also pointed out to the specific notification available with reference to the Co-operative Societies that all sales of milk by Co-operative Milk Society and Unions, except sale to the actual consumers, are exempted under the Act. In the light of the provisions thus available, one can conclude that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age 10 of Part II Section 1 of the Tamil Nadu Government Gazette dated the 11th February 1981. AMENDMENT : In the said notification, for the words "and milk" the following words shall be substituted, namely:- "Fresh milk, recombined milk and milk drink with or without any addition thereto for being sold as a beverage". 14. Going by the enumeration in the exemption notification, it is clear that the State intended to treat fresh milk as different from recombined milk and milk drink with or without addition, to be sold as a beverage. If the Statute intended fresh milk and other enumerated item as one and the same, then there would be no need for enumeration of recombined milk and milk drink with or without addition thereto for being sold a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed milk. Admittedly, there is no definition what 'manufacture' is. However, Rule 3(h) of the Tamil Nadu General Sales Tax Rules gives the clue to the understanding of what 'manufacturer' is. It defines, 'manufacturer' means "any person who produces, prepares or makes goods for the purpose of trade" Going by such wide definition given to the word 'manufacturer', a preparation or process of making goods for the purpose of trade would also become manufacture for the purpose of Section 3(3). As had been held by the Apex Court in a number of decisions, in the absence of any definition to the word 'manufacture' restricting its meaning, the word 'manufacture has to be given a meaning as is understood in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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