SUDHIR AGARWAL,J. - (1.) Heard Sri R.K. Shukla, learned counsel for revisionist and learned Standing Counsel for respondent.
(2.) This revision under Section 11 of U.P. Trade Tax Act, 1948 (hereinafter referred to as "Act 1948") has come up from judgment and order dated 13.03.2008 passed by Trade Tax Tribunal, Bench-III, Lucknow (hereinafter referred to as "Tribunal") dismissing revisionist's Second Appeal No. 560 of 2005 relating to Assessment Year 2002-03. It was admitted on following questions of law: "(i) Whether the Poultry Feed Supplements as sold by the Revisionist/Assessee under its respective brand names are covered under the Entry 'Poultry Feed' and accordingly, are liable for exemption from Trade Tax. (ii) Whether the learned Trade Tax Tribunal, III, has erred in law and facts by holding that most of the Poultry Feed Supplements sold by the Assessee/Appellant act as a kind of medicines and as such imposition of Trade Tax by the subordinate authorities, is justified while rejecting the Second Appeal no. 560 of 2005 (2002-03). (iii) Whether the learned Trade Tax Tribunal III, is justified in simply taking the view that the judicial decisions referred in support of the submissions made by the learned counsel are on different facts that the matter under consideration. (iv) Whether the judgment and order dated 13.03.2008 passed by learned Trade Tax Tribunal III, suffers from error of law in applying the common parlance meaning of the word 'feed supplement' as well as the decisions given by the Hon'ble High Courts in this regard while assessing the nature and scope of the Poultry Feed Supplements, in question."
(3.) Vide notification dated 31.01.1985 issued by State Government under Section 4(a) of Act 1948 read with Section 21 of U.P. General Clauses Act, 1904 (hereinafter referred to as "Act 1904") certain items were exempted from Trade Tax w.e.f. 01.02.1985 and entry 5 there of was "Balanced poultry feed". Prior thereto classified item for tax relevant for our purpose was "Cattle feed, poultry feed or fish feed". By notification dated 01.10.1994 published under Section 3A(1)(e) of Act 1948, in supersession of earlier notifications, entry 56 was inserted prescribing 4 percent tax on Manufacturer or Importer of "Balanced cattle feed, poultry feed or fish feed". The aforesaid notification was amended on 22.05.2001 enhancing rate of tax to 5 percent but the entry was modified as "Balanced cattle feed". Another notification on the same date was published under Section 4(a) of Act 1948 and it was notified that w.e.f. 25.05.2001 no tax shall be payable on the sale of "poultry feed" or "fish feed". Therefore entry attracting tax remain only "Balanced cattle feed" and other two items namely "poultry feed" or "fish feed" were exempted from tax w.e.f. 25.05.2001. A clarification was issued by Trade Tax Commissioner vide circular dated 16.08.2005 stating that Animal feed shall also include Animal Feed Supplement and Animal Feed Concentrant. In view of Supreme Court judgment in M/s Sun Export Corporation, Bombay v. Collector of Customs, Bombay and another, AIR 1997 SC 2658 , which has been referred to by this Court in M/s Piya Pharmaceuticals Works v. Deputy Commissioner (Executive) Sales Tax, Ghaziabad and another, 1998 UPTC 209 .;