Commissioner of Sales Tax vs Simla Ice Cream Factory

G.G. Sohani, J.—The order in this case shall also govern the disposal of Misc. Civil Case No. 153 of 1980, as a common question of law arises in both these cases.

By these references u/s 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 to this Court for its opinion :

Whether, under the facts and circumstances of the case, ice-cream, ice-candy is cooked food and is covered by item 8 of Part I of Schedule II appended to the M. P. General Sales Tax Act, 1958.

Shri Kulshreshtha, the learned Deputy Government Advocate, brought to our notice the decision of Full Bench of this Court in Commissioner of Sales Tax Vs. Gyanmal Kesharichand, . After an elaborate and a very learned discussion on all the aspects of the matter, the Full Bench held that "ice-cream" and "ice-candy" are not "cooked food" and are not covered by item 8 of Part I of Schedule II to the Act. We are bound to follow the aforesaid decision in the absence of any decision of a larger Bench or of the Supreme Court on the point.

Our answer to the question referred to this Court, therefore, is that on the facts and circumstances of the case, ice-cream and ice-candy are not cooked food and are not covered by item 8 of Part I of Schedule II appended to the M. P. General Sales Tax Act, 1958.

In the circumstances of the case, parties shall bear their own costs of this reference.