D.K. Trivedi, J.@mdashBy this Reference u/s 61(1) of the Bombay Sales Tax Act, 1959, the Maharashtra Sales Tax Tribunal has referred the following question of law to this Court for opinion:
Whether on the facts and in the circumstances of the case and on a true and correct interpretation of Entry 27 of Schedule C Part II of the Bombay Sales Tax Act, 1959 was the Honourable Tribunal justified in law in holding that ''Gulkand'' is covered by the scope of the said entry?
2. The controversy in this case relates to the period from 1.4.1984 to 31.3.1985. The material facts relevant for deciding the controversy in this reference are as follows :
The assessee is a manufacturer a sellers of ''Gulkand''. In the course of the assessment for the period from 1.4.1984 to 31.3.1985 under the Bombay Sales Tax Act, 1959 ("Act), the assessee contended before the Sales Tax Officer that "Gulkand" was medicine and hence it was covered by Entry 24(1) of Schedule C Part II to the Act. The Sales Tax Officer rejected the above contention of the assessee and held that it was assessable at the rate of 10% under the residuary entry i.e. Entry 102 in Schedule C Part II to the Act. He, therefore, assessed to tax the turnover of ''Gulkand amounting to Rs. 58,400/- at the rate of 10% being the rate applicable to the goods covered by Entry 102 of Schedule C Part II. The assessee appealed against the above order of the Sales Tax Officer to the Assistant Commissioner of Sales Tax. The Assistant Commissioner confirmed the order of the Sales Tax Officer and dismissed the appeal of the assessee. The assessee, therefore, preferred further appeal to the Maharashtra Sales Tax Tribunal ("Tribunal"). Before the Tribunal, the assessee reiterated its contention that ''Gulkand'' was medicine within the meaning of Entry 24(1) of Schedule C Part II. As there were conflicting decisions of the Tribunal on the interpretation of Entry 24(1) of Schedule C Part II, the Tribunal referred the question to the Larger Bench for determination of the question, whether on the facts and circumstances of the case "Gulkand" (mixture of rose petals and sugar without any addition of other medicine) will be medicine as covered by Entry 24(1) of Schedule C Part II to the Act ?
3. The Larger Bench of the Tribunal, by its order dated 31.1.1991, held that ''Gulkand'' was not medicine within the meaning of Entry 24(1) of Schedule C Part II to the Act and answered the question in the negative and referred the matter back to the Tribunal to dispose of the appeal in accordance with law after giving opportunity to the assessee to satisfy the Tribunal if according to it ''Gulkand'' was covered by any of the entries of schedule so as to bring it out of the residuary Entry 102 of Schedule C Part II. The Tribunal thereafter heard the appeal afresh. The assessee at that stage contended that "Gulkand" was foodstuff and covered by Entry 27 Schedule C Part II to the Act. The contention of the department, on the other hand, was that ''Gulkand'' can not be labeled as foodstuff and hence it is not covered by Entry 27(1) of Schedule C Part II to the Act, After hearing both the parties, the Tribunal held that ''Gulkand'' was foodstuff covered by Entry 27 Schedule C Part II to the Act and assessable at the rate applicable for the goods covered by that entry. Aggrieved by the above decision of the Tribunal, the Revenue is before this Court by way of this reference.
4. We have heard the learned Counsel for the revenue. The controversy in this case is in a very narrow compass. The question for determination is whether ''Gulkand'' can be treated as "foodstuff falling within Entry 27 of Schedule C Part II to the Act. There is no dispute about the fact that if it does not fall under that entry, it would fall under Entry 102 Schedule C Part II as held by the Sales Tax Officer. Entry 27 of Schedule C Part II to the Act, at the material time, read as follows :-
5. It is clear from the above entry that it deals with foodstuffs and food provisions of all kinds including and excluding the items mentioned therein. The question that arises for consideration is whether ''Gulkand'' can be regarded as "foodstuff or "food provisions of any kind". The expressions ''foodstuff or ''food provision'' have not been defined in the Act. These are words of every day use and they must, therefore, be understood in their popular sense. Viewed in that sense, ''Gulkand'' can never be regarded as foodstuff or food provision. Food as ordinarily understood means : material consisting of carbohydrates, fats, proteins, and supplementary substances (as minerals, vitamins) that is taken or absorbed into the body of an organism in order to sustain growth, repair, and all vital processes and to furnish energy for all activity of the organism. Foodstuffs, in common parlance, means those articles which are eaten at the tea table.
6. The dictionary meaning of these expressions is also in no way different than the common parlance meaning. According to Oxford Advance Learner''s Dictionary ''food'' means any substance that people or animals eat or drink or plants take in to maintain life and growth. Foodstuff has been described as any substance used as food. Similarly, in Random house Dictionary of the English Language, food has been described as any nourishing substance that is eaten or otherwise taken into the body to sustain life, provide energy, provide growth. Foodstuff has been described as a substance used or eatable of being used as a nutriment. Food provisions also conveys similar meaning.
7. It is clear from the above, that therefore, ''Gulkand'' which is normally used as a mouth fresher or for good taste cannot be regarded as foodstuff or food provision within the meaning of Entry 27 of Schedule C Part II to the Act. The Tribunal was not correct in holding to the contrary. That being so, it would fall under the residuary entry 102 of Schedule C Part II to the Act.
8. In view of the above, the question referred to us is answered in the negative i.e. in favour of the revenue and against the assessee.
9. This reference is disposed of accordingly with no order as to costs.
