J.K. Ranka, J. - (1.) Instant sales tax revision petition is directed against the order of the Rajasthan Sales Tax Tribunal, Ajmer, in Appeal No. 8/88 dated November 6, 1992. The matter pertains to the assessment years 1982 -83 and 1983 -84. The present petition was admitted on the following questions of law: "(i) Whether the 'ice cream' is an exempted item of goods under exempted entry dated March 6, 1964 or not with amended entry dated March 9, 1966? (ii) Whether the 'ice cream' is a milk product or not? (iii) Whether the Tribunal is competent to decide the matter for the years for which there was no dispute before it -
(2.) The brief facts which can be noticed are that the assessee is carrying on the business of sale of ice cream and the turnover was to the extent of Rs. 1,41,375 and Rs. 3,11,650 for the assessment years 1982 -83 and 1983 -84, respectively. The controversy, in short, is whether the ice -cream is a milk product or not. The claim of the assessee is that, it being a milk product, is exempt under the Sales Tax Act. However, the assessing officer was of the view that under the notification dated March 6, 1964, ice -cream is not defined and therefore, it is not a milk product and thus is exigible to tax under the Rajasthan Sales Tax Act and accordingly levied tax at eight per cent. However on an appeal filed, the Deputy Commissioner (Appeals) was satisfied with the arguments advanced by the assessee and held that it is a milk product, however, the Deputy Commissioner (Appeals) directed to levy tax at five per cent, as against eight percent, which was assailed before the Rajasthan Sales Tax Appellate Tribunal by the assessee and the Tribunal vide impugned order not only upheld the findings of the assessing officer but also held that the tax would be levied on the same rate as observed by the assessing officer.
(3.) Mr. Sarvesh Jain, counsel for the petitioner, contended that ice -cream is basically prepared by using milk and cream and once the main ingredient being milk and cream, which is exempt under the Rajasthan sales tax laws, then on the same analogy the ice -cream should also fall within the category as a milk product. He contended that ice -cream is formed by milk and cream put together and when milk and cream are mixed and placed in deep freezer, it becomes an ice cream and thus enures for exemption. He further contended that when ice cream melts what remains is basically milk and cream. He further contended that when fresh milk, dahi (curd), khoa and cream was exempt from the levy of sales tax then ice -cream also ought to be exempt. He further contended that the lower authorities have held it to be a "cooked food" when it cannot be said to be "cooked food" and there is no basis to categorize it as a "cooked food". He further contended that cheese, paneer, lassi, shrikhand and yogurt where also the main ingredient is milk and these being exempt then on the same analogy, ice -cream being prepared from the milk ought to be liable for exemption and according to him, the specific entry which is relevant for the years in dispute read as under: "Fresh milk (whether whole or the fat contents of which have been removed or reduced), dahi, khoa and cream.";