The Commissioner of Sales Tax vs Mangharam and Co.

Madon, J.—The question which has been submitted for our determination in this Reference u/s 61(1) of the Bombay Sales Tax Act, 1959, made at the instance of the Commissioner of Sales Tax, is :-

"Whether on a true and proper interpretation of entry No. 14 of Schedule A to the Bombay Sales Tax Act, 1959, the Tribunal was correct in law in holding that the sales of ice-cream effected by the Respondent at their place of business at Appollo Bunder were covered by entry No. 14 of Schedule A and as such exempt from tax ?"

At all material times the Respondents were registered as a dealer under the said Act. The Respondents sell ice-cream sold by them at their said place of business at Appollo Bunder was exempt from tax under entry 14 of Schedule A to the said Act. The Sales Tax Officer accepted this claim for Respondents as to why the assessment orders for the aforesaid two periods should not be revised by deleting therefrom the exemption given in respect of the sales of ice-cream at the said Appollo Bunder place of business. By his two orders dated August 31, 1966 the Assistant Commissioner revised the said orders of the Sales Tax Officer and held that the sales of ice-cream effected by the Respondents were taxable under entry 31 of Schedule C to the said Act. The Respondents appeal against the said orders of the Assistant Commissioner failed. The Respondent''s then filed second appeals to the Tribunal, and both these appeals were allowed, the Tribunal holding that the ice-cream sold by the Respondents was exempt from tax under entry 14 of Schedule A to the said Act.

It will be convenient at this stage to set out the two entries in question. The description of the goods in entry 14 of Schedule A to the said Act during the relevant period was as follows :-

"Cooked food and non-alcoholic drinks served at one time at a price of not more than one rupee per person, for consumption at or outside any eating house, restaurant, hotel, refreshment room or boarding establishment which is not a shop or establishment conducted primarily for the sale of sweetmeats, confectionery, cakes, biscuits or pastries."

The description of the goods in entry 31 of Schedule C to the said Act during the relevant period was as follows :-

"Sweet and sweetmeats (including shrikhand, basundi and ahoodhpak) except when sold in sealed containers of weight not exceeding five seers in each container."

The first submission of Mr. Dada, learned Counsel for the Applicant, was that ice-cream is not cooked food, and, therefore, the said entry 14 had no application. In Commissioner of Sales Tax vs. Pure Ice Cream Company (1975) 46 S.T.C. 18, this Bench has held that ice-cream is cooked food. Accordingly, following our decision in that case, we negative this contention of Mr. Dada. It was next submitted by Mr. Dada that the Respondent''s place of business at Appollo Bunder where ice-cream was sold during the relevant periods was neither an eating house nor a restaurant nor a hotel nor a refreshment room nor a boarding establishment, Mr. Dada wished to invite our attention to the dictionary meanings of these words. In our opinion, for deciding this Reference it is wholly unnecessary to look at the dictionary to ascertain the meanings of these words. The record shows that the said place of business is a cabin where ice-cream is sold to people who come to buy it for the purpose of consumption near, at or about this cabin. There is nothing on the record to show that the customers who consumed ice-cream purchased by them were not doing so standing inside the cabin. The only argument before the Tribunal on behalf of the Department was that there was no arrangement made for the customers to sit and consume the ice-cream purchased by them. The same contention has also been taken in the Applicant''s application for reference made to the Tribunal. Though normally a hotel or a restaurant or a refreshment room might have sitting arrangement for their customers to consume food and drinks purchased by them, this is not necessary and now a days we have quite a few snack bars becoming fashionable where people stand at the counter and eat. It is also not necessary that the food purchased must be consumed inside any such hotel, restaurant or eating house. The entry itself states that food and drinks should be for consumption at or outside any eating house or other establishment referred to in the said entry. Mr. Dada''s argument amounts to saying that for sale of food and drinks to obtain exemption under the said entry 14, such food and drinks must be served at the place where they are eaten or intended to be eaten. In Commissioner of Sales Tax, Maharashtra, Bombay vs. Lala Lajpatrai Hotel (1975) 35 S.T.C. 368, we have rejected this contention advanced by the Department.

It was next contended by Mr. Dada that the Respondents were not entitled to obtain exemption under the said entry 14 because their said place of business was conducted primarily for the sale of sweetmeats, the ice-cream sold by them being sweetmeats. It is equally not possible to accept this contention. Entry 31 of Schedule C itself makes a distinction between sweets and sweetmeats. Undoubtedly, the term "sweets" is a wider generic term which comprehends within it the species of sweets known as sweetmeats, but from this it does not follows that every sweet is a sweetmeat. Mr. Dada referred us to some dictionary meanings of the words ''sweet'' and ''sweetmeat'' and said that both meant sweet food. The words "sweet food" are merely descriptive of a sweet and a sweetmeat, and do not define or bring out the essential distinction between the two. The Shorter Oxford English Dictionary defines "Sweetmeat" as "preserved or candied fruits, sugared nuts, etc., also, globules, lozenges'' ''drops'' or ''sticks'' made of sugar with fruit or other flavouring or filling". The Concise Oxford Dictionary defines ''sweetmeats'' as ''shaped morsel of confectionary usually consisting chiefly of sugar or chocolate, a fruit preserved in sugar, bonbon, sugarplum, goody". It is undoubtedly true that a sweet, which is not a sweetmeat, and a sweetmeat both normally taste sweet, but all that tastes sweet is not and cannot be sweetmeat, and both on dictionary meaning and according to the commonly understood notions of what an ice-cream is and what sweetmeats are, we are unable to accept Mr. Dada''s contention that ice-cream is a sweetmeat.

Mr. Dada also sought to argue that the said place of business at Appollo Bunder was an establishment conducted primarily for the sale of sweetmeats. In view of our finding that ice-cream, is not sweetmeat, this question does not arise for our consideration. Even apart from this, there is nothing in the judgment of the Tribunal to show that what was sold primarily at the said place of business was ice-cream, and in fact the Deputy Commissioner who has in his order in appeal held that the said place of business was conducted primarily for the sale of sweetmeats, has himself said that small sales of ice-cream were effected at the said place of business.

For the reasons set out above, we answer the question submitted to us in the affirmative.

The Applicant will pay to the Respondents the costs of this Reference fixed at Rs. 250/-.