DIRECTOR OF ENTRY TAX Vs. DALMIYA INDUSTRIES LIMITED

JUDGEMENT

(1.) The respondent manufactures DIL Instant Milk Mix. It is used principally in the preparation of tea and coffee. It is stated to be a mixture of partially skimmed milk and sugar. According to the respondent, it is exempt from the tax levied under the Taxes on Entry of Goods into Calcutta metropolitan Area Act, 1972 by reason of Entry 5 in the Schedule thereto. That entry reads:

(2.) The Chairman of the West Bengal Taxation Tribunal took the view that toned milk and not toned milk powder had been exempted under the said entry from the payment of tax under the said Act. Even according to the respondent, he said, its product was toned milk powder and not toned milk in liquid form. Accordingly, the respondent's product could not be exempted from payment of the tax when it was in powder form and not in liquid form. He noted that the respondent had filed evidence to the effect that its product was commonly dealt with in the market as toned milk but, in his view, this had to be taken "with a grain of salt" because the product was not described as toned milk on the label and he could not understand how the product could be treated in the trade or in common parlance as toned milk, that is milk in liquid form, when the product was in powder form. The two other Members of the Tribunal who heard the matter held that, considering the fact that what was exigible was preserved toned milk, toned milk powder was clearly excepted from the entry tax and they recorded the opinion that if the respondent's product was treated in substance as toned milk powder, it was not exigible to the tax as it was excepted by the said Entry 5. They then stated that the question whether the respondent's product was toned milk powder or not was a question of fact, the decision of which they left to the entry Tax Authority.

(3.) The Entry Tax Authorities are in appeal.