JUDGMENT 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.
4. Mr. Bharat Ji Agarwal, on the contrary, argued that there is no distinction between malt and barley. Malt is sprouted barley. The physical identity is not lost and as a matter of fact malting is only a process and other cereals such as wheat, oat, rice, etc., are also malted. Barley having been converted into malt, it is still having food value and capable of being used as seed. Assuming that the said item of barley and malt are two different items still malt is a cereal and continues to be cereal. It is foodgrain item used for food purposes even after barley is malted into malt. The different food processing units use malt in different food products such as Horlicks, Boost, Nutramul and Complan, etc. The malt does not lose its food value of barley. It continues to be barley in different form. Even the manufacturers of alcohol, beer, whisky, etc,, use barley in liquid and fermented form. As such, malt though different as barley in the form, it is still the same as cereal and foodgrain. Mr. Bharat Ji Agarwal appearing for the assessee-respondent argued that the definition of the word foodgrain including cereals, pulses and the items other than cereals and pulses as defined in Section 14 of the Central Sales Tax Act, 1956 has been given a wider meaning. Section 14 of the said Act only gives the names of certain items of foodgrain and cereals and it is not exhaustive to include all items of cereals and foodgrains. The items which have not been included under Section 14 of the Central Sales Tax Act, though foodgrains, would come under item No. 3 of the notification dated April 30, 1977 and the rate of tax applicable in those cases would be the rate as prescribed therein. In that view of the matter, malt which is produced out of barley, is still a cereal and foodgrain and would fall under item No. 3 of the said notification dated April 30, 1977 and the rate of tax applicable therein will be payable by the assessee-respondent.
I have considered the arguments of the counsel for the revisionist and opposite party carefully.
5. The counsel for the department referred to U.P. Foodgrains (Procurement and Regulation of Trade) Order, 1982 and submitted that the word "foodgrain" appearing in the said Order should be given the same meaning for the purposes of understanding the aforesaid notification of 1977 under the Central Sales Tax Act, 1956. My query to the standing counsel was that since rice or paddy was not included in the word "foodgrain" in the said Order of 1982, as such, rice and paddy could equally be excluded from the definition of the said Order or from the Central Sales Tax Act, 1956, to which he had no answer. Further, I am fortified by a decision of the honourable Supreme Court reported in [1987] 67 STC 233 (Advance Bricks Company v. Assessing Authority, Rohtak) where the Supreme Court was pleased to hold that the definition of the word "brick" had not been given in the Haryana General Sales Tax Act, 1973, and in the absence of statutory definition of the term "brick", the common parlance meaning of the word as found in the dictionaries had to be accepted. The High Court erred in placing reliance on the definition of the word "brick" in the Haryana Control of Brick Supply Order and had lost sight of the proper perspective for determination of the issue.
6. In order to appreciate the arguments of the Revenue and the assessee I have to refer to some definitions and dictionary meaning of the words "barley" and "malt".
In Volume 26 of Words and Phrases, Permanent Edition, "malt" or "malted barley" is defined as follows :
"'Malt' or 'malted barley' is 'grain' within statute requiring elevator and warehouse......
'Malted barley' is barley that has been germinated and the germination stopped at a suitable point of the development of the sprout by the application of heat and drying. The grain is indistinguishable from barley in appearance except to the extent that the sprout changes its appearance. It has somewhat different properties but it is still capable of being used as seed and it has not lost its physical identity."
In Chambers' Encyclopaedia, New Revised Edition, Volume IX, the word "malt" has been defined as under :
"Malt is barley which has been moistened, allowed to sprout or germinate and then dried. Sometimes other cereals such as wheat, oats, rye and maize are also malted."
The words "barley" and "malt" have been defined in the Handbook of Agriculture (facts and figures for farmers, students and all interested in farming) published by the Indian Council of Agricultural Research, New Delhi, in the following manner :
"Barley (Hordeum vulgare L.) is an important rabi cereal of India, ranking next to wheat both in acreage and in the production of grain. The major portion of the grain produced is consumed by the poor classes either as flour (pure or mixed with that of wheat or gram for chapati-making) or as parched grains to make sattu. It is also used to prepare malt for manufacturing beer and whisky and other products, such as industrial alcohol and vinegar. Malt syrup is also utilised for making candies, breakfast cereals, medicines and in textile industry. Malt sprouts and by-products of brewing are used as a feed for dairy cattle. The grains are also used for manufacturing pearl and powder products, which generally form the diet of sick people. Surplus grain provides feed for cattle and horses. Straw is also fed to cattle."
The dictionary meaning of the word "malt" according to Corpus Juris Secundum, Volume LIV, is as under :
"As a noun, barley or other grains steeped in water and dried in a kiln, thus forcing germination, until the saccharine principle has been evolved. It is a grain."
The New Lexicon Webster's Dictionary of the English language defines the word "malt" as grain exp. barley, allowed to germinate in water and then heated and dried used in brewing and distilling ; to convert grain into malt ; to prepare with malt ; to become malt.
The word "cereal" as defined in Chamber's Encyclopaedia (New Edition), Volume III, is as follows :
"The term cereal is applied to a number of species of grass which are grown mainly for their fruits or grains. The chief representatives are wheat, barley, oats and lye (qq.v.), cultivated in the more temperate regions, and rice, maize, millet and sorghum (qq.v.) adapted to the warmer climates. They form the most important food of mankind and are also of great value as food for farm stock. Besides being utilised as bread corn large quantities of cereal grains are employed in the manufacture of starch, beer, whisky, gin and other spirits. Moreover the cereals are frequently grown for green fodder and the straw when ripe may also be used as food for farm stock and for other useful purposes."
In 5th Edition of Mitra's Legal and Commercial Dictionary, the word "cereal" is defined as under :
" 'Cereal'--relating to grain or to the plants, that produce it ; made of grain ; a prepared foodstuff of grain, (Webster's Ninth New Collegiate Dictionary).
Cereal means grain used as food, such as wheat, barley, etc. (Chambers Twentieth Century Dictionary)."
7. According to the New Encyclopaedia Britannica, Macropaedia, Volume 3, 15 Edition, cereals or grains are members of the grass family cultivated primarily for their starchy seeds (technically, dry fruits), which are used for human food, livestock feed and as a source of industrial starch. Wheat, rice, maize (called corns in the U.S.), rye, oats, barley, sorghum and some of the millets are common cereals.
8. From the aforesaid definitions, it is very clear that malt is another form of barley. Malting is a process whereby barley is germinated and sprouted. Such malting process is also used in other cereals like wheat, maize, oats, etc., which are malted, as such, malt is nothing but sprouted and germinated barley. In Hindi language meaning of the word "barley" is Jau. Malt is also known as Jau and there is no word equivalent in Hindi for the English word "malt". At least, learned Standing Counsel for the Department was unable to tell me a word in Hindi which is synonym or equivalent to "malt", other than Jau.
9. The only question involved in this case is whether the malt falls within the extended definition of foodgrains as contained in item No. 3 of the notification dated April 30, 1977, which reads as under :
"3. Foodgrains including cereals and pulses other than cereals and pulses as defined in Section 14 of the Central Sales Tax Act, 1956 (Act No. 74 of 1956)."
The language of the said notification clearly extends the scope and meaning of cereals and pulses as defined in Section 14 of the Central Sales Tax Act, 1956. Cereals and pulses which had not been included in Section 14 have definitely been included in this notification by use of the words "other than". If that is so, then the task of the court becomes easier.
10. Admittedly, barley is a foodgrain, so is malt. Malt or malted barley is barley which has been germinated or sprouted. It is a foodgrain and the same is used as a foodgrain even after being malted by the foodgrain processing units which manufacture Horlicks, Boost, Complan, etc. Barley is used for manufacturing alcoholic products, such as, whisky, beer, etc., by fermentation and other process. The product manufactured by the use of malted barley may be an industrial product but it does not make the malted barley or malt itself an industrial product, which is only one of the raw material of such an industrial product. By use of rice and other foodgrains a large number of alcoholic products are being manufactured equally but that would not make rice and other foodgrains as industrial product. Malted barley continues to be a foodgrain and must squarely fall under item No. 3 of the notification dated April 30, 1977. It is a cereal, other than a cereal as defined in Section 14 of the Central Sales Tax Act, 1956. As such, it is entitled to be taxed at the rate provided under the said notification only.
Accordingly, the revision application fails and the same is hereby dismissed. There shall be no order as to costs.