COMMISSIONER OF SALES TAX Vs. INDORE COFFEE HOUSE

JUDGEMENT

(1.) BY this reference under Section 44 (1) of the M. P. General Sales Tax Act, 1958 (hereinafter referred to as the Act), the Board of Revenue has referred the following question of law for the opinion of this Court:

(2.) THE facts giving rise to this reference briefly stated are as follows : The assessee runs a coffee house where ice-cream is also sold. The assessee was assessed to sales tax for the financial year 1967-68. The assessing authority accepted the contention of the assessee that ice-cream sold by it was cooked food and was taxable under item No. 8 of Part I of Schedule II to the Act. The Commissioner of Sales Tax considered the order passed by the assessing authority to be erroneous in so far as it was prejudicial to the interest of the revenue. He therefore revised the order under Section 39 (2) of the Act. The Commissioner held that ice-cream was not cooked food and was not covered by entry 8 of Part I Of Schedule II to the Act. On appeal by the assessee the Board of Revenue has held that ice-cream is a cooked food and was rightly taxed by the assessing authority under entry No. 8 of Part I of Schedule II to the Act. Consequently the appeal of the assessee was allowed and the order of the Commissioner was set aside. At the instance of the department the Board of Revenue has referred the aforesaid question of law for the opinion of this Court.

(3.) IN Commissioner of Sales Tax v. Regal Dairy, Mhow [1981] 47 S. T. C. 374, a Division Bench of this Court has taken the view that "mawa" is a cooked food and is covered by entry 8 of Part I of Schedule II- to the Act. This Court held that the entry in question is meant to cover those articles which are made fit for eating by a heating process as boiling, roasting or baking. It is common knowledge that in the preparation of ice-cream a heating process, i, e. , boiling of the milk, is involved. We are in respectful agreement with the view taken by the Division Bench of this Court in the aforesaid decision. We are, therefore, of the opinion that the Board of Revenue was right in holding that ice-cream is a cooked food and is covered by entry 8 of Part I of Schedule II to the Act.