Rajes Kumar, J. - (1.) THESE three revisions under Section 11 of UP Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 18.01.2006 relating to the assessment years 1990 -91, 91 -92 and 92 -93.
(2.) APPLICANT is a co -operative society, engaged in the business of manufacture and sale of milk, ghee, paneer and cream etc. In all the three revisions the dispute relates to the taxability of such milk, which according to the applicant was milk prepared by mixing of White butter and milk powder in natural milk to increase the quality of milk. It was claimed that the applicant was selling the milk of specified standard and to maintain the said standard in the milk white butter and milk powder etc. have been added. For the assessment year 1990 -91 assessing authority granted the exemption on the sale of such milk in the original assessment proceeding. Subsequently, re -assessment proceeding under Section 21 of the Act was initiated and the tax had been assessed on the sale of such milk on the ground that the exemption was not admissible to the artificial milk under Section 4 of the Act but was admissible to the natural milk. Likewise for the assessment years 1991 -92 and 92 -93 in the original assessment proceeding such milk had been assessed to tax. First appeals filed by the applicant were rejected. Applicant filed second appeals before the Tribunal, which were also dismissed vide order -dated 18.01.1998. Being aggrieved by the said order, applicant filed Trade Tax Revisions before this Court All the revisions were allowed by this Court vide order dated 09.03,2005 and the matters were remanded back to the Tribunal to decide the dispute afresh in the light of the decisions of this Court in the case of CST v. Nainital Dugdh Utpadak Sahkarj Sangh Ltd., Nainital reported in, 2001 UPTC 328 and Indodan Milk Products Ltd., Muzaffarnagar v. The Commissioner of Sales Tax reported in, 1973 UPTC 569. This Court lias further observed that "what has to he examined is whether by mixing milk powder, white butter and cream etc. in the purchased milk alleged to improve the quality of milk, the item obtained, remains milk". Tribunal by the impugned order dismissed all the three appeals, Tribunal in its order disputed the case of the applicant on the ground that in reply to the show cause notice, applicant stated that by mixing white butter and milk powder etc. milk had been prepared and further no evidence had been adduced that on the purchased milk, milk powder and white butter had been mixed to increase the quality, Tribunal held that the milk sold by the applicant was artificial milk manufactured by mixing white butter and milk powder and, therefore, such milk was not liable for exemption under Section 4 of the Act. Decision of this Court in the case of CST v. Nainital Dugdh Utpudak Sahkari Sangh Ltd., Nainital (Surpa) was distinguished on the ground that in that ease it was held that after mixing milk powder, it remains milk. While in the present case, artificial milk has been prepared by mixing milk powder, white butter and cream etc. Heard learned Counsel for the parties.
(3.) LEARNED Counsel for the applicant submitted that the Tribunal has erred in observing that the applicant had manufactured artificial milk by mixing while butter, milk powder and cream etc. and has disputed the case of the applicant that in the milk white butter, milk powder and cream etc. were added to increase the quality of the milk. He submitted that the aforesaid inference has been drawn by the Tribunal on the basis of the reply given by the applicant to the show cause notice and on the ground that no evidence had been adduced in this regard. He submitted that the view of the Tribunal in this regard is misplaced and contrary to the record. He submitted that in reply to the show cause notice applicant had categorically stated that in the milk, milk powder, white butter and cream etc, had been added to increase the quality of the milk. The details of the milk purchased during the years under consideration had been furnished before the assessing authority along with the reply to the show cause notice, which is on record. He further submitted that the milk is a generic word, which includes both natural milk as well as artificial milk. Therefore, even the artificial milk is milk and exempted under Section 4 of the Act, In support of his contention he relied upon the full Bench decision of this Court in the case of Indodan Milk Products Ltd., Muzaffarnagar v. The Commissioner of Sales Tax (Supra). He further submitted that the Explanation (b) of Section 4 of the Act has been substituted by U.P. Act No. 35 of 2000, dated 31.01.2000 in which reconstituted or recombined milk prepared from skimmed milk; butter or butter oil has been included in milk. He submitted that the amendment in the Explanation is clarificatory in nature and to be made applicable even for a period prior to 01.11.2000. Learned Standing Counsel relied upon the order of the Tribunal.;