- (1.) AT the instance of the Excise and Taxation Commissioner, Haryana, Member, Sales Tax Tribunal, Haryana, has submitted a statement of the case under Section 42 of the Haryana General Sales Tax Act, 1973 ("the Act" for short) and referred the following question for our opinion : "whether, in the facts and circumstances of the case, chhilka binola which has been admittedly used for preparing a cheap type of cattle feed could be regarded as fodder as given in entry 34 of Schedule B of the Haryana General Sales Tax Act, 1973 ?" Prithvi Raj Aggarwal Oil Mills, Kaithal (hereinafter referred to as "the dealer"), is a registered dealer carrying on the business of oil (khal binola chhilka, binola, etc.) at Kaithal. In the proceedings for the assessment year 1973-74, the dealer claimed deductions on the sale of chhilka of binola by stating that it was fodder as defined by entry 34 of Schedule B and was tax-free goods. The Assessing Authority did not accept this contention and held that chhilka of binola was not fodder and subjected the dealer to tax at the rate of 3 per cent holding chhilka of binola to be cotton seeds. This created an additional liability. Dissatisfied, the dealer filed an appeal before the Deputy Excise and Taxation Commissioner, Ambala. He upheld the view of the Assessing Authority and held that the goods sold by the appellant were not fodder. According to him, the Legislature intended to exempt only fodder or dry fodder which was produced in the farms and remained after taking out the grains from the agricultural produce. However, he was further of the view that the binola chhilka could not be regarded as cotton seeds and the same should have been assessed as general goods. Consequently, he remanded the case on this limited point with a direction that the Assessing Authority should work out the tax liability of the dealer afresh in the light of the observations made in his order. Dissatisfied, the dealer filed a second appeal. It was accepted by the Member, Sales Tax Tribunal, Haryana. He held that "the mere fact that binola chhilka can be used as fodder only as an additive makes no difference to its essential characteristic as animal food". Secondly, nothing can be read in excluding part of entry 34 of Schedule B to suggest that binola chhilka can be presumed to be excluded from "fodder of every type". He allowed this appeal and quashed the assessment order so far as it related to inclusion of binola chhilka in taxable goods.
(2.) THE Excise and Taxation Commissioner, Haryana, made an application under Section 42 of the Act. It was allowed and the matter is before us for our opinion.
(3.) SCHEDULE B of the Haryana General Sales Tax Act, 1973, specifies tax-free goods. Entry 34 therein at the relevant time read as under : "fodder of every type (dry or green) but not including oil-cakes, guar giri and chhilka of foodgrains and pulses". ;