- (1.) The Tribunal, by its order dated 30th September, 2005, has referred the following question of law for answer and opinion of this court. "Whether on true and correct interpretation of Schedule entry C-II-35(1) appended to the Bombay Sales Tax Act, 1959, a Notification entry 374 issued u/s. 41 of the said Act, Tribunal was correct in holding that the product 'Ice cream' manufactured by the applicant was not covered by the term "Sweet and Sweetmeats" appearing in both the aforesaid entries and thereby impugned item 'Ice cream' was not eligible for the tax concession -
(2.) The factual backdrop on which the above question has been referred needs to be noted. The applicant assessee is a registered dealer under the Bombay Sales Tax Act,1959 (For short "the Act") and manufacturer of 'Ice cream' which is covered of Schedule Entry "C-II- 35(1)". The Government of Maharashtra had issued a Notification under Section-41 of the Act with effect from 1st April, 1994 and introduced Entry 374 under which the effective rate of tax was reduced to 4% in respect of "Sweet and Sweetmeats" covered by Schedule Entry "C-II- 35(1)".
(3.) In view of the notification providing for a reduced rate of tax, on 31st December, 1994, the applicant filed an application under Section 52 of the Act before the Commissioner praying that the effective tax rate in respect of sales on Ice cream made by the applicant under Invoice 292 dated 1st May, 1994 be determined. This application came to be decided by the Commissioner by an order dated 29th March, 1995, wherein it was held that ice-cream in common parlance was not considered as "Sweet and Sweetmeats" and therefore, was not covered by the said term appearing in Scheduled Entry "C-II-35(1)". It was thus, held that 'Ice cream' being distinct and separate from the term "Sweet and Sweetmeats" was exigible to tax at the rate of 8%.;