S.L.Saraf, J. - (1.) The present application has a chequered career. When the matter came up before this Court for the first time, this honourable Court on consideration of Clause (i) of Section 14 of the Cental Sales Tax Act, 1956 decided that barley and malt are two different commodities and malt is taxable as separate from barley as an unclassified item at 8 per cent. As against the order of this Court passed on 16th September, 1993 a special leave petition was moved before the honourable Supreme Court. A rectification application was also filed before the High Court as well. The special leave petition was disposed of by an order dated 5th May, 1994 directing the High Court to dispose of the rectification application of the earlier judgment, filed before the High Court. On September 21, 1994, the honourable High Court disposed of the rectification application by directing the Sales Tax Tribunal to consider as to whether the malt having been obtained from barley can be treated as foodgrain including the cereals outside the provisions of Section 14 of the Central Sales Tax Act and falls under notifications dated May 30, 1975, September 11, 1976 and April 30, 1977. The Tribunal was also directed that the finding of the court was to be treated as final and malt and barley are two different commodities and malt does not fall within the definition of the word "cereal" as defined under Section 14 of the Central Sales Tax Act. On the basis of this direction the matter went before the Tribunal to consider whether the malt was foodgrain and cereals other than cereals as defined under Section 14 of the Central Sales Tax Act and falls under item No. 3 of the Notification No. ST-ll-2712/X-6(8)-77 dated April 30, 1977, wherein the first purchase is to be taxed at the rate of 4 per cent for the purchase of the said goods only.
(2.) Learned counsel for the department argued that barley and malt are two different items and malt cannot be considered to be foodgrain or cereal and it is an industrial product. It is not a foodgrain and as such, the said item could not fall under item No. 3 of the aforesaid notification dated April 30, 1977 and as such, would be treated as an unclassified item and taxed as such. According to the counsel for the department malt is totally different item than barley. Processed germinated and sprouted from barley it produces an industrial item out of which whisky, beer and such other alcoholic items are prepared. According to the standing counsel for the purposes of breakfast food malt is used by different food processing units which manufactures Horlicks, Boost, Complan, etc.
(3.) In support of the above arguments Sri Surya Prakash Kesarwani, learned counsel for the department placed reliance on Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola [1961] 12 STC 286, where the Supreme Court has laid down that betel leaves are not vegetables and would not be exempt from sales tax under item 6 of Schedule II of the C.P. and Berar Sales Tax Act, 1947 and the word "vegetable" must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. Mr. Kesarwani referred to another decision of the honourable Supreme Court in Indo International Industries v. Commissioner of Sales Tax [1981] 47 STC 359 (All.) ; 1981 UPTC 481 to show that the word "glassware" could not comprise articles like clinical syringes, thermometers, lactometers and similar items having specialised significance and utility. In popular or commercial parlance a general merchant dealing in glassware does not ordinarily deal in articles aforesaid though they are made of glass. Further, Mr. Kesarwani made a reference of a decision of the honourable Supreme Court in Vijayalaxmi Cashew Company v. Deputy Commercial Tax Officer [1996] 100 STC 571 ; 1996 UPTC 602, wherein it was said that in common parlance cashew-nut kernels and raw cashew-nuts are two different commodities. In [1971] 28 STC 729 ; 1971 UPTC 697, Goel Industries (Pvt.) Ltd, v. Commissioner of Sales Tax, U.P., Lucknow a Division Bench of this Court held that chemically ice and water may have the same composition but in commercial and popular sense they are different commodities. Lastly, the Standing Counsel has referred to a decision of the Division Bench of this Court in Bakhat Ram Takhat Ram v. State of Uttar Pradesh [1973] 32 STC 14 ; 1973 UPTC 242, in which it has been held that foodgrain is a comprehensive term which includes all grains which are used as food by human beings. Paddy, as such, is not fit for human consumption, but encased inside it is rice, which is taken out from paddy by a process called husking or hulling. Even in commercial world the paddy is regarded as foodgrain.;