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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 ..... 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 learned Tribunal was justified in treating Jau Ghat is not a cattle fodder and whether it is open for the learned Tribunal to twist the facts of the case merely on the basis of the averments made by the opposite party in the memo of appeal. (iii) Whether, the learned member Tribunal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 submitted that whether barely or jaughat is used as cattle fodder or as human food is a question of fact and the finding arrived at by the Tribunal cannot be said to be perverse or without any material on record. Therefore, it cannot be interfered with. He has also relied upon the decision of a Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 extracting oil will not alter the character of the commodity. It is a settled rule of interpretation that a commodity has to be classified in accordance with their normal use and the words in a notification have to be interpreted as understood in common parlance. As rice bran is used primarily for feeding cattle and as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plants, like the Prayag Ice and Oil Mills, which exclusively use this oil-cake for extraction of oil from it. These plants do not use it as cattle fodder. This in our opinion is besides the point. If the article sold by the petitioner is in the commercial use properly indentifiable as oil-cake, it will be oil-cake within the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any discussion showing that judgment of this Court is based on different facts, I do not find any justification to bye-pass law laid down there, in a circuitous way. This approach of Tribunal cannot be appreciated. 6. In the result, Revision is allowed. Impugned judgment dated 05.09.2008 passed by Tribunal to the extent it has hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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