IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.11.2011 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MR.JUSTICE P.P.S.JANARTHANA RAJA T.C. (Revision) Nos.1250, 1251 and1261 of 2006 The State of Tamilnadu rep. by the Deputy Commissioner (Commercial Taxes) Chennai (North) Division Greams Road, Chennai – 600 006. ..Petitioner in all the three cases Vs. Jayesh Brothers No.59, Nyniappa Maistry Street Chennai – 600 003. .. Respondent in all the three cases Tax Case Revisions are filed under Section 38 of the Tamil Nadu General Sales Tax Act, 1959 against the order of the Sales Tax Appellate Tribunal (Additional Bench), Chennai dated 12.4.2000 passed in (i) S.T.A.No.36 of 1999 and COP No.536 of 1999, (ii) S.T.A.No.37 of 1999 and COP No.535 of 1999; and (iii) S.T.A.No.35 of 1999 and COP No.537 of 1999 respectively against the order of the Appellate Assistant Commissioner (CT) Chennai dated 8.10.97 and made in Appeal No. and year 1. AP.20/97 (1994-95) 2. AP.205/97 (1995-96) 3. AP.22/97 (1993-94) respectively against the order of the Deputy Commercial Tax Office, Park town II, Assessment circle, Madras-1 dated 15.3.96 in Assessment Nos. and year 1. TNGST 053508/94-95. ii.TNGST 0400631/ 95-96 iii. TNGST 053508/ 93-94 respectively. For Petitioner : Mr.R.Sivaraman Special Government Pleader For Respondent : Mr.T.Pramodkumar Chopda https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Made by P.JYOTHIMANI, J.) The Revenue has preferred these revisions against the orders of the Sales Tax Appellate Tribunal (Additional Bench), Chennai dated 12.4.2000 passed in (i) S.T.A.No.36 of 1999 and COP No.536 of 1999, (ii) S.T.A.No.37 of 1999 and COP No.535 of 1999, and (iii) S.T.A.No.35 of 1999 and COP No.537 of 1999, in respect of assessment years 1994-1995, 1995-1996 and 1993-1994 respectively, and the same were admitted on the following question of law: "Whether in the facts and circumstances of the case, the Tribunal is right in holding the masala powder is not food items taxable under Entry 63 Part D of First Schedule when there is a specific entry in item 1(ix) of Part E of the First Schedule?" 2. The issue involved in these revisions is as to whether the sale of Masala Powder by the assessee should be treated as food item taxable under Entry 63 of Part D of First Schedule or as Item 1(ix) of Part E of the First Schedule. 3. In respect of the said assessment years, the Assessing Officer has assessed the said item sold by the assessee as a food item under Item No.1(ix) of Part E of the First Schedule liable to tax at 12%. Challenging the same, the assessee has filed appeals before the Appellate Assistant Commissioner in respect of the said three assessment years. The appeals stood allowed and it was held that Masala Powder will fall under Entry 63 of Part D of the First Schedule as unclassified item. The Revenue preferred appeals against the said order. The Tribunal, under the impugned order, has confirmed the order of the Appellate Assistant Commissioner holding that Masala powder as it is cannot be called a preparation of food, even though it is an aid for preparation of food. It is against the said order, the Revenue has filed the present revisions on the above question of law. 4. Before adverting to the merits of the matter, it is relevant to note that in respect of the assessment year 1996-1997, regarding the assessee's own case, Masala Powder was assessed as a residuary item at 8% by the Assessing Officer, which is stated to have become final. 5. It is stated that in respect of the subsequent assessment year 1997-1998, the Assessing Officer is stated to have revised the earlier order, against which an appeal was filed and the appeal filed by the assessee was allowed and the further appeal filed by https://hcservices.ecourts.gov.in/hcservices/ the Revenue before the Tribunal is also stated to have been dismissed. Therefore, even in respect of 1997-1998, masala powder stood as a residuary item. Even though it is the contention of the learned Special Government Pleader that in respect of the assessment year 1997-1998 against the order of the Tribunal a revision has been filed, the petition for condonation of delay in filing the revision is pending consideration and no other particulars are available. 6. In respect of the subsequent assessment year 1998-1999, it is the case of the assessee that the same item has been assessed as a residuary item at 11% and according to the learned counsel for the assessee that has become final. However, it is not in dispute that thereafter by virtue of the amendment which was brought in on 27.3.1998, Masala Powder has been specifically included for the first time as Entry 43-A of Part B of First Schedule imposing tax at 4% in cases where it is with brand name. 7. Therefore, on fact, it is clear that even in respect of the assessee's case in respect of the above said assessment years, the authorities have been treating Masala Powder before the amendment as a residuary item. 8. The contention of the learned Special Government Pleader is that even though Masala Powder as such cannot be treated as a foodstuff, unless it is mixed with the food, the food will have no meaning and, therefore, it should be treated as a food item. He would also rely upon the decisions in The State of Tamil Nadu v. A.K.Sundaram, (1983) 54 STC 82, S.Giridhar Shenoy v. State of Kerala, (1997) 104 STC 562 and State of Bombay v. Virkumar, AIR 1952 SC 335 to substantiate his contention that Masala Powder should be treated as a food item. 9. On the other hand, it is the contention of the learned counsel for the assessee that when the authorities themselves have been treating Masala Powder in respect of the assessee's own case as residuary item, there is no reason to take a different stand and, therefore, he would submit that the reasoning given by the Tribunal in the impugned order need not be interfered with. 10. We have heard the learned counsel for the petitioner and the respondent and given our anxious thought to the issue involved in this case. 11. On a reference to the common order passed by the Tribunal, we find that the Tribunal, in our view, correctly found that even though Masala Powder is used as an accessory for making mouthwatering combination of curries and other preparations of https://hcservices.ecourts.gov.in/hcservices/ food, that itself cannot be food and applying commonsense interpretation, the Tribunal found that there is no infirmity in the order of the Appellate Assistant Commissioner in holding that in respect of the three assessment years Masala Powder is unclassified item and, therefore, should be treated under residuary clause. 12. This Court in The State of Tamil Nadu v. A.K.Sundaram, (1983) 54 STC 82, while referring to the meaning of food, has observed that food must be something which must be taken to maintain life and growth and to supply nourishment. The said observation was made while considering about arrow-root powder and holding that arrow-root powder is not a food item. It is apposite to extract the following portion of the said decision: "4. According to the learned counsel for the revenue, even if it is not a preparation of vegetable, it is still an article of food. Normally, the dictionary meaning of food is something taken into the system to maintain life and growth and to supply nourishment. We do not think that in that sense arrow-root powder sold by the assessee can be taken to be an article of food. As has been pointed out by the Tribunal, even if arrow-root is a vegetable, every product of vegetable cannot be taken to be an item of food. If every product of vegetable is taken as food, then even turmeric powder has to be taken as food, which is obviously untenable. In this view of the matter, we are in entire agreement with the view of the Tribunal and we accordingly hold that arrow-root powder sold by the assessee in this case cannot be taken to be either an article of food or a preparation of vegetable, which alone will bring it under item 103(viii) of the First Schedule to the Act." 13. That being the basis, even as per the dictionary meaning of food which has got relationship to the maintenance of life and growth, by no stretch of imagination it can be held that Masala Powder is food by itself. 14. The reliance placed on by the learned Special Government Pleader on the judgment of the Kerala High Court in S.Giridhar Shenoy v. State of Kerala, (1997) 104 STC 562 relates to Falooda, wherein a preparation is made by cooking vermicelli, sago, rice and adding sugar syrup, and it was in those circumstances, as per the entry in the Kerala General Sales Tax "cooked food" item, Kerala High Court has held that it is liable to tax at 10%. A reference to Entry 57, which was the basis for the Kerala High Court decision, which is as follows: https://hcservices.ecourts.gov.in/hcservices/ Sl.No . Description of goods Point of levy Rate of tax (per cent) 1 2 3 4 57 Cooked food including beverages not falling under entry 76A of this Schedule sold or served in, (i) hotels and/or restaurants, the turnover in respect of which is twenty lakhs rupees and above; and (ii) bar attached hotels and/or restaurants. At the point of first sale in the State by a dealer who is liable to tax under section 5 10 shows that "cooked food' was construed in terms of use in hotels and restaurants and bars attached to hotel and restaurants and, in our considered view, the facts of the present case cannot be compared to the one which were dealt with by the Kerala High Court. 15. The reliance placed by the learned Special Government Pleader on the judgment of the Apex Court in State of Bombay v. Virkumar, AIR 1952 SC 335 has also no application to the facts of the present case. That was a case, where, while deciding about turmeric – whether it is a foodstuff within the meaning of the Essential Supplies (Temporary Powers) Act, 1946, in the context of Essential Supplies (Temporary Powers) Act, 1946 the term "foodstuff" came to be discussed by the Apex Court, which, in our considered view, cannot be imported to the taxing system, as it was held by this Court in Associated Agencies v. State of Tamil Nadu, (1993) 89 STC 447, wherein it was observed as follows: "An item in the Schedule has to be construed independent of the definition given under the other statutes. Therefore, the reliance placed by the learned counsel for the appellant on the Insecticides Act, 1969, to show that fungicides and weedicides are included in the expression "pesticides" cannot improve the situation. The Legislature is presumed to be aware of the need of the people and while classifying the entries in a particular Schedule, if it chose not to include certain commodities in the First Schedule, its intention is obvious that it did not wish to extend the benefit of single point taxation in respect of those commodities." https://hcservices.ecourts.gov.in/hcservices/ 16. While referring to a judgment of the Apex Court in Ardeshir H. Bhiwandiwala v. State of Bombay, AIR 1962 SC 29, this Court in Commissioner of Income Tax, Tamil Nadu-III v. Engine Valves Ltd., (1980) 126 ITR 347 has observed as follows: "Having regard to this object, the expression 'factory' was given a fairly wide connotation, in the case decided by the Supreme Court. It is not appropriate to apply the decisions of courts interpreting and applying the term occurring in the Factories Act as aids to the construction of 'factory building' occurring in the depreciation provisions relating to income-tax." For the foregoing reasons, we see no reason to interfere with the impugned order of the Tribunal. Accordingly, the question of law is answered against the Revenue and in favour of the assessee and these revisions are dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sasi To 1. The Sales Tax Appellate Tribunal (Additional Bench) Chennai 2. The Appellate Assistant Commissioner (CT) Chennai 3. The Deputy Commercial Tax Officer Park Town II, Assessment circle Madras-1 1 cc to Mr.T. Pramodkumar Chopda, Advocate, Sr. 70768 2 ccs to Spl. Government Pleader, Sr. 70486, 70487 T.C. (Revision) Nos.1250, 1251 and1261 of 2006 GV (CO) kk 14/12 https://hcservices.ecourts.gov.in/hcservices/