A.PASAYAT,J. - (1.) AT the instance of the Revenue by an application under section 24 (2) of the Orissa Sales Tax Act, 1947 (in short, "the Act", this Court directed the Orissa Sales Tax Tribunal (in short, "the Tribunal") to state a case and refer the following question for opinion : " Whether, on the facts and in the circumstances of the case, the Sales Tax Tribunal is justified to hold that, jam, jelly, tomato sauce and squash are covered by item (4) of rule 93-K for levy of tax at the first point of sale ?" Pursuant to the direction, the Tribunal has stated a case.
(2.) IN spite of notice, there is no appearance on behalf of M/s. Jyoti Trading Company (hereinafter referred to as "the dealer"), the opposite party. The only question which falls for consideration is whether jam, jelly, tomato sauce and squash are covered by item (4) of rule 93-K of the Orissa Sales Tax Rules, 1947 (in short, "the Rules" ). The said rule enumerates items of goods which are taxable at the first point in a series of sales. The Tribunal was of the view that the expression "such as" used in the rule indicates that articles intended to be encompassed were of species and those specifically indicated were only illustrative. It held that the articles in question were covered by rule 93-K. The Tribunal based its conclusion on the Standing Order Nos. 6884 dated March 22, 1967 and dated July 26, 1966 issued by the Commissioner of Sales Tax where jam, jelly, tomato sauce and squash, etc. , were stated to he a part of the tinned food and beverages. The Tribunal seems to have lost sight of the fact that all foods and beverages are not covered by the entry. Only such of them which are contained in sealed containers, and are akin, similar or of the kind of specific goods mentioned in the latter part of the item, become taxable at the first point in a series of sales. In other words, any other goods to he covered by item has to take its colour from specific goods mentioned in the latter part. Item of articles with which we are presently concerned, cannot be said to be akin, similar or of the kind mentioned in the item itself. The articles specified in the item certainly have different use than the articles under reference. Therefore, the Tribunal was not justified in its conclusion. Reference at the instance of the Revenue is answered in its favour, and against the dealer. Reference answered in the negative. .;