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TMI Blog2015 (5) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... l times to come. Therefore, when cheese, paneer, lassi, shrikhand and yogurt can be said to be items which are being produced with the main ingredient being milk so also on the same analogy, ice-cream in my humble opinion, would also fall within the same category and would thus, be exempt and therefore, finding reached by the Tax Board, is required to be reversed. Even as per common parlance in every household or even otherwise one immediately understands as to how ice-cream is being prepared and even a child would know that the ice-cream would be prepared by mixing milk, cream, sugar, etc. - Decided in favour of assessee - S. B. Sales Tax Revision Petition No. 940 of 1999 - - - Dated:- 22-5-2015 - J. K. RANKA, J. Sarvesh Jain for the petitioner Ms. Tanvi Sahai on behalf of R. B. Mathur for the respondent ORDER Instant sales tax revision petition is directed against the order of the Rajasthan Sales Tax Tribunal, Ajmer, in Appeal No. 8/88 dated November 6, 1992. The matter pertains to the assessment years 1982-83 and 1983-84. The present petition was admitted on the following questions of law: (i) Whether the 'ice cream' is an exempted ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no basis to categorize it as a cooked food . He further contended that cheese, paneer, lassi, shrikhand and yogurt where also the main ingredient is milk and these being exempt then on the same analogy, ice-cream being prepared from the milk ought to be liable for exemption and according to him, the specific entry which is relevant for the years in dispute read as under: Fresh milk (whether whole or the fat contents of which have been removed or reduced), dahi, khoa and cream. He relied upon the judgments in the case of Assistant Commercial Taxes Officer v. Murli Brothers [1989] 75 STC 72 (Raj); [1989] 5 RTJS 285, Kwality Ice Cream Company and Restaurant v. Sales Tax Officer, New Delhi [1974] 34 STC 396 (Delhi), Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Pio Food Packers [1980] 46 STC 63 (SC) and Commissioner of Central Excise Customs v. Suresh Synthetics [2007] 216 ELT 662 (SC). Per-contra learned counsel for the Revenue contended that the ice- cream is entirely a different product though milk may be a major ingredient in preparation of an ice-cream and as such is liable to be taxed and all the three authorities in unison have com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than ghee and butter which have been shown specifically as exigible to tax in the notification dated March 8, 1969, ceased to be so exempt from the payment of tax. In my opinion, it is not so. The notification dated March 8, 1969, providing specifically for ghee and butter while living out other milk products was issued much after the substituted exemption entry at S. No. 3 with effect from March 6, 1964. If the substituted entry were to be read as excluding the products of the goods mentioned therein, then it was not necessary to provide expressly for the taxation of ghee and butter which are two of its products in the notification dated March 8, 1969. This being so, the ordinary rule of construction that products of exempted goods would also be exempt unless a contrary intention appears must be applied. No contrary intention to tax the products of milk or curd other than ghee and butter appears from the aforesaid notification dated March 8, 1969. This being so, cheese, which is admittedly the product of milk, or curd, must be held to be exempt from payment of tax by virtue of this entry. Reference may be made to the decision of the Supreme Court in Alladi Venkateswarlu v. Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 6 of the Act the sale of ice- cream is exempt from assessment to sales tax. So far as the writ petitions are concerned, the same are accepted and the assessment orders levying sales tax on the sale of the ice-cream by the petitioners are quashed . . . The honourable Khanna, J. added: In the present case, the words 'fresh milk, whole or separated' provide a complete description of what was intended to be exempted. There is no vagueness left about it. Apart from that, 'milk products' were also considered to deserve the exemption. That is why the entry was made to read as 'fresh milk, whole or separated and milk products'. The attempt to regard the expression 'milk products' as general and then to cut into its meaning to understand by it only the residue which may be left when the whole milk is separated, as was contended by the respondent's learned counsel, is wholly uncalled for and futile. There is no scope for invoking the rule of ejusdem generis when interpreting the expression 'milk products' which is an unambiguous and clear expression well-known and easily understood by the common man. The attempt of the Revenue to call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning, that is to say, the meaning attached to them by those dealing in them. That is what is known as common parlance test (Gopal anand Rasayan v. State of Maharashtra [2010] 30 VST 304 (Bom)). The honourable apex court, in the case of Union of India v. Garware Nylons Ltd. [1996] 10 SCC 413, again observed that the burden of proof is on the taxing authorities to show that the particular case or item in question is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It further observed that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. In so far as the classification of goods is concerned, the honourable apex court in the case of HPL Chemical Ltd. [2006] 6 RC 508; [2006] 5 SCC 208 has held that classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub-heading different from that claimed by the assessee, the Department has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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