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TMI Blog2017 (9) TMI 1472X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Counsel for respondent. 2. This revision under Section 11 of U.P. Trade Tax Act, 1948 (hereinafter referred to as Act 1948 ) has been filed against judgment and order dated 05.09.2008 passed by Trade Tax Tribunal, Bench 3, Lucknow (hereinafter referred to as Tribunal) in Appeal no. 61 of 2005. Dispute relates to taxability of Jau Ghat (Mota Anaj), whether it is taxable or not . This revision was admitted on following questions of law: (i) Whether, the learned member Tribunal was justified in treating Jau Ghat as a fine grain of Barley and not a cattle fodder fit for human consumption despite the decision of this Hon'ble Court in the case of Abdul Ghani Banney Mian Vs Commissioner of Sales Tax. (ii) Whether, the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the entry dated 31.03.1956 included grain feed, chuni, bhusi, chhilka, choker, cotton seed, gwar and oil-cake. The matter has been further examined in para 12 and 13 of the judgment which read as under: 12. Shri Kesharwani appearing for the revenue has strenuously argued that there was material before the Assessing Authority showing that in the assessment year under consideration the dealer had sold jaughat as food grain and it was admitted that due to shortage of good-grains, the imported jaughat was grinded and its flour was mixed with other eatable fours. He further submits that Section 14 of the Central Sales Tax Act, gives list of cereals and item nox in the list, barely is described Shri Bharat Ji Agarwal on the other hand, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not excluded jaughat being used as cattle fodder. As already pointed out above, the Tribunal specifically observed in its order term the cattle fodder has not been defined in the Act. It, therefore, relied upon dictionary meaning of the term cattle fodder which as shown above included thrashed barley. The first Appellate Authority has considered the evidence adduced by both sides as to what use the jaughat is put by various consumers. The Tribunal has referred to the judgement of this Court in C.S.T. v. Narain Das Badelal, (1978 Vol. 42 STC 470) in which Division Bench of this Court has held as follows:- It cannot be denied that rice bran is primarily used for feeding cattle. The fact that small portion of it is used for extrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing poultry feed, if will be cattle feed. The fact that in special cases user was different, will not make any material difference. Similarly, in Bhagwan Potato Chief Factory Vs State of Uttar Pradesh (supra), the facts were that the dealer had sold oil-cake to Prayag Ice and Oil Mill which in its turn used the oil-cake for extraction of oil. Under notification of July, 1956, oil-cake was used in the industry dealing with the cattle fodder. The question arose whether oil-cake sold by the dealer is not entitled to exemption in the aforesaid circumstances. The Court had held that:- In the present case the allegation of the department is that the petitioner is selling part of its production of oil-cakes to certain oil-extraction pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our was mixed with flour of other cereals which were put to human consumption, in my view that would not change the nature of jaughat which is normally used as cattle fodder. Therefore, in my view no interference in the order of the Tribunal so far as taxability of the turnover of jaughat is concerned in required. 5. The first appellate authority therefore has held that Jau Ghat was exempted from tax and no tax was payable. However, Tribunal has reversed finding of first appellate authority and restored finding of Assessing Officer without recording any reason. Judgment in M/s Abdul Ghani Banney Mian Vs Commissioner of Sales Tax,U.P. Lucknow (supra) has been distinguished only by observing that its facts are different. In absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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