S. GIRIDHAR SHENOY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE question that comes up for our consideration is of a limited character whether "falooda" would have to be understood as a milk product with reference to entry No. 122 of the Kerala General Sales Tax Act, 1963 or a "cooked food" including beverages as contemplated under entry 57, then prevailing for the assessment year 1991 -92. Entry 57 is reproduced as follows : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sl. Description of goods Point of levy Rate of tax No. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 2 3 4 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 57 Cooked food including At the point of first 10 beverages not falling sale in the State by a under entry 76A of dealer who is liable to this Schedule sold tax under section 5. 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. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - It would be seen that when such a cooked food is sold or served, it is to be noted that the turnover up to 25 (20 ?) lakhs rupees is exempted and above the said limit, it was then taxable at 10 per cent.

(2.) AT the other end, entry 122 speaks of milk products and its cognates, as specified thereunder. By the said entry, it is taxable at 8 per cent. The said entry is reproduced herein below : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 2 3 4 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 122 Milk products, At the point of 8 including milk first sale in powder, baby food, the State by ghee, cheese and butter a dealer who is except curd and liable to tax buttermilk. under section 5. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - It would be seen that milk products would have to be understood in the context as specified in the said entry, including milk powder, baby food, ghee, cheese and butter except curd and butter milk. The controversy is limited only to the extent of application of the above two entries.

(3.) IT is held by the assessing authority that "falooda" comes under "milk products" liable to tax at 8 per cent by virtue of entry No. 122. The authority has observed that the assessee was served with a notice affording an opportunity of being heard and further that the assessee has not availed of the opportunity, creating a situation of presumption that the assessee has no objection to the proposal on the basis of treating "falooda" as a milk product.