DIAMOND BISCUIT CO Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE only point for decision in this case is whether the sale of biscuits is liable to sales tax under the Bengal Finance (Sales Tax) Act, 1941. The law on the point is contained in the Schedule under section 6 There are two items viz., items Nos. 3 and 7 of the Schedule which are relevant. Item No. 3 relates to bread while item No. 7 relates to cooked foods, other than cakes, pastries and sweetmeats, except when sold in sealed containers. The learned Government Pleader as well as the petitioners' representative agreed with me that bread and biscuits are two different commodities. So item No. 3 does not apply. As for item No. 7, there can be no doubt that biscuits constitute cooked food as they are cooked in an oven through the application of heat. The very mention of cakes, pastries and sweetmeats as being amongst cooked foods makes it quite clear that biscuits cannot but come under the same definition. Here also the learned Government Pleader agreed with me that biscuits are a kind of cooked food. Now the only question is whether biscuits come under the definition of cakes, pastries and sweetmeats.

(2.) THE Board has always held that in cases of doubt of this nature the criterion should be whether a commodity covered by the exception clauses is identifiable as such under the name in which it appears in the Schedule of exceptions and whether it sells as such in the market. Now there can be no doubt that biscuits are not cakes nor are they pastries or sweetmeats though they are prepared more or less in the same way as cakes and pastries as well as bread. No one will accept biscuits from a dealer when he asks for cakes or pastries and vice versa. The result is that biscuits cannot be held to come under the exception mentioned in item No. 7, viz., cakes, pastries and sweetmeats. In other words, biscuits are like any other kind of cooked food, the sale of which is exempted from sales tax, except when sold in sealed containers.