M.R.SHARMA,J. - (1.) THE following question has been referred to us by the presiding officer of the Sales Tax Tribunal, Punjab : Whether the sale of bottles of milk khaja, which consists of pure milk, sugar, flavour and khaja wherein no manufacturing process is involved in filling these bottles, is milk and the sale thereof is exempt from tax ?
(2.) AT the very outset, we would like to observe that the learned Sales Tax Tribunal should not have assumed that no manufacturing process was involved in filling the bottles. He should have framed the question like this: Whether, in the facts and circumstances of the case, the sale of bottles of milk khaja which consists of pure milk, sugar, flavour and khaja comes within the definition of 'sale' or not ? We have said so because the question whether in preparing a thing any process of manufacturing is involved or not is a relevant factor to determine whether the original commodity remains the same or not. We, however, feel that if we are to remit the case back to the presiding officer of the Sales Tax Tribunal, it would involve further delay in the decision of the case. We have, therefore, decided to answer the question as now framed by us.
(3.) BEFORE the Assessing Authority, the petitioner filed an affidavit which shows that he purchased cashew-nuts, grounded them and then added them to milk along with sugar and a flavouring agent. In other words, what the petitioner was selling was not milk alone; he was selling a mixture of milk, sugar, flavouring agent and cashew-nuts. A man in the street, when asked, would not regard the article sold by the petitioner as milk. In Commissioner, Sales Tax, U. P. , Lucknow v. Lucknow Co-operative Milk Supply Union Ltd. , Lucknow, [1972] 30 S. T. C. 165, the Allahabad High Court was concerned with the question whether milk shake answered the description of the word "milk" or not. It was held that when a little sugar and some flavouring article is added to the milk it does not change its character and people do use this preparation in place of milk. The facts of that case are clearly distinguishable because in the milk shake no such commodity is added which loses its own shape when the final product comes into being. Apparently, in the instant case, powdered cashew-nuts still appear in the milk and it is precisely for this reason that the milk sold by the petitioner is known as "khaja milk".;