SHREE RAMDEV ICE CREAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The assessee has challenged the judgment of the Gujarat Value Added Tax Tribunal (for short, "the Tribunal") dated December 16, 2008. By such judgment, the appeal of the present appellant was dismissed, thereby confirming art assessment order dated October 23, 2003 passed by the Sales Tax Officer and confirmed by the Assistant Sales Tax Commissioner, Surat, by his order dated December 31, 2003. The assessee before the authority as well as before the Tribunal resisted the payment of sales tax primarily on two grounds. Firstly that it was a small industry and secondly that the assessee which was engaged in the business of selling softy did not carry out any production but only reselling. According to the appellant, all that was done was to cool pre-prepared mixture of sweetened milk and other additives. In this context, the assessee relied on the decision in the case of Quality Ice-cream, in whose case the Commissioner of Sales Tax, finding that all that the said company did was to sell softy ice-cream after cooling and condensing the premixed sweetened milk, held that such a person was not assessable to sales tax.

(2.) In the present case, however, the Tribunal noted that the assessee had not maintained any record or books of account, though had claimed to be involved in small business operation, the seized record ran into about 2,000 pages. The Tribunal, in absence of any evidence refused to believe that the turnover of the assessee was below the threshold limit.

(3.) With respect to parity in the case of Quality Ice-cream, the authorities below clearly came to the conclusion that the process in the present case was completely different. The adjudicating authority on such basis had rejected such contention of the appellant. The adjudicating authority further elaborated that unlike in the case of Quality Ice-cream, it was found in the case of assessee that the assessee had through different bills purchased raw materials, such as sweetened milk, soft-drink concentrate, chocolate powder, vanilla powder, food additives, flavour colour, etc. On such basis, it was concluded that it was not a simple process of cooling and condensing pre-prepared sweetened milk mixture, but a case where the entire detailed process was undertaken.