WP(C) 5915/2010 BEFORE HON’BLE THE CHIEF JUSTICE MR. A.K. GOEL HON’BLE MR. JUSTICE N. KOTISWAR SINGH (A.K. Goel, CJ.) This petition seeks quashing of order dated 4.9.2010 passed by the Commissioner of Taxes under the provisions of Assam Value Added Tax Act, 2003 declaring that the item Madhusudan brand milk powder containing added sugar and skimmed milk powder was not skimmed milk powder and was not covered by Entry 60 of Schedule -II, providing for taxability at the rate of 5 per cent. It was held that the it em in question was covered by residue entry to which general rate of tax i.e. 13 .5% was applicable. The petitioner is selling the product in question claiming the same to b e skimmed milk powder covered by Entry-60 of Schedule-II. According to the petit ioner, the said item was known as skimmed milk in common parlance even though th e same may not be covered by the criteria for skimmed milk laid down under the p rovisions of Prevention of Food Adulteration (PFA) Rules, 1955 and Bureau of Ind ian Standard (BIS), according to which, skimmed milk should not contain more tha n 5 per cent milk fat and moisture should not exceed 5 per cent. In the product in question, added skim and fat was 10 percent. The petitioner made an application under Section 105 of the Act for clar ification and submitted that the test to be applied for classifying the item in question was the test of common parlance, irrespective of technical meaning of t he product under contemporary statutes or texts. The Commissioner of Taxes did not accept the stand of the petitioner and applied the criteria laid down under the Prevention of Food Adulteration (PFA) Rules, 1955 and Bureau of Indian Standard. The product was held to be ’milk’ ins tead of ’skimmed milk’, as follows :- Perused the submission. Now, under the Assam Value Added Tax Act, 2003, there are two rates of tax for milk powder - skimmed milk powder is taxable @ 5% and others are taxable @13.5%. So petitioner’s submission and quoting of certai n judgments that skimmed milk powder is nothing but milk powder shall not be r elevant in present case as legislative intention is clear from the entries. As t here are two separate categories of milk powder to be taxed at different rates, so there must be some identification criteria to place items in two categories. The identification criteria is provided in the provisions of the Prevention of F ood Adulteration (PFA) Rules, 1955 and Bureau of Indian Standard which clearly s tate that skimmed milk powder shall not contain more than 1.5% milk fat and mois ture shall not exceed 5%. The fat content in Madhusudan brand skimmed milk pow der containing added sugar and fat is 10% which more than 1.5% specified for the skimmed milk powder, hence the same cannot be termed as skimmed milk powder. The petitioner also submitted that even if certain items are added to mi lk, it still remains milk, therefore even if milk fat and sugar is added to skim med milk powder, it will still remain skimmed milk powder. The submission of the petitioner is not acceptable in the instant case as the main criteria for deter mination of skimmed milk powder is the amount of milk fat in it. As soon as and when milk fat is added, then it contains milk fat more than the specified rate f or the skimmed milk powder. As such, the item Madhusudan brand milk powder containing added sugar and fat is not skimmed milk powder and, therefore, the same shall come under ent ry at Sl. No.1 of the Fifth Schedule and shall taxable @ 13.5%. We have heard learned counsel for the parties. Learned counsel for the petitioner submits that the learned Commissioner of Taxes erred in taking the criteria laid down under the Prevention of Food Ad ulteration (PFA) Rules, 1955 and Bureau of Indian Standard to be conclusive, wit hout further examining the perception in common parlance as per law laid down in M/s Mukesh Kumar Aggarwal and Co. Versus State of Madhya Pradesh and others, 19 88 (Supp) SCC 232 and State of Gao and others Vs. Leukoplast (India) Ltd., (1997 ) 4 SCC 82. A perusal of the impugned order shows that the learned Commissioner of T axes did not go into the common parlance meaning of the expression skimmed milk . This may require the matter to be reexamined. Accordingly, we set aside the impugned order and remit the matter to the Commissioner of Taxes for a fresh decision in the matter in accordance with law . The petitioner may appear before the Commissioner of Taxes for further proceed ings on 10th September, 2012. Interim arrangement as in force during pendency of this petition will co ntinue till the Commissioner takes a fresh decision.