JUDGMENT Rajes Kumar, J.
1. Present revision under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") is directed against the order of Tribunal dated 02.01.1995 for the assessment year 1987-88.
2. Dealer/opposite party (hereinafter referred to as "Dealer") was involved in the business of milk, butter, cheese, ghee under the brand name of "Amul". Dealer was selling flavoured liquid milk in the name of Amul Elaichi Shake and Amul Coco Shake. The said flavoured liquid milk was sold in tetra brick paper packing. According to the dealer flavoured milk was only milk and was not liable to tax under the notification, issued under Section 4 of the Act. Assessing authority however, had not accepted the plea of the dealer and taxed such flavoured liquid sold in the name of Amul Elaichi Shake and Amul Coco Shake in packed form as soft beverages (a), 12%. Matter went to the Tribunal in appeal. Tribunal has not accepted the claim of the dealer that the said flavoured liquid milk was a milk in view of the decision of this Court in Civil Misc. Writ Petition No. 1269 (Tax) of 1989. in which commodity has not been held milk but held milk product liable to tax being sold in sealed containers. Tribunal further held that flavoured liquid milk is liable to tax % 6% under the notification No. ST-5785/X-10(1)80-U.P. Act XV/48-Order-81. dated 07.09.1981. Tribunal has not accepted the case of the revenue that it is liable to tax as soft beverages @ 12% under the entry relating thereto.
3. Heard learned counsel for the parties.
4. I have perused the order of Tribunal and the authorities below and considered the rival submissions of the parties.
5. Relevant notifications read as follows:
Notification No.ST-II-5785/X-10(1)-80-UP. Act XV/48-Order-81 dated 07.09.1981.
" Milk powder, condensed milk, baby milk, baby foods and all other food stuffs or products, whether used as such or after mixing them with any other food stuff or beverage, when sold in sealed or tinned containers".
Notification No.ST-II-5905/X-6(l)-83-UP. Act 15/48-Order 83 dated 12.10.1983.
" Soda water, lemonade, fruit-juices and other soft beverages and syrup, squashes, jams and jellies"
6. Tribunal has not given any reasons that under which item of the notification No. ST-II-5785. dated 07.09.1981, Amul Elaichi Shake and Amul Coco Shake falls. It is not a milk powder, condensed milk, baby milk, baby food and all other food stuff
7. The word "food stuff came up for consideration before the Hon'ble Supreme Court in the case of Welcome Hotel v. State of Andhra Pradesh, AIR 1993 SC 1015 the Apex Court held as follows.
"Further the expression 'food' has generally be understood to mean nutritive material absorbed or taken into the body of an organism which serves for purposes of growth, work or repair and for the maintenance of the vital process. What human beings consume is styled as food and what animals consume is described as animal feed. This distinction has to be borne in mind. Expression 'foodstuffs' is made of two expressions, 'food' plus 'stuffs'. In other words, the stuff which is used as food would be foodstuff. Therefore, foodstuff is that which is taken into the system to maintain life and growth and to supply waste of tissue. If the raw foodstuff with a view to making it consumable by human beings undergoes a change of its condition by the process of cooking, the derivative is nonetheless foodstuff. If raw rice is foodstuff, does rice when boiled in water cease to be foodstuff........ Therefore, the expression 'foodstuff as under 5 Act comprehends cooked food."
8. The expression 'foodstuff has also been considered by the Apex Court in the case of Sat Pal Gupta v. State of Haryana, AIR 1982 SC 798 as follows.
"The word 'foodstuff which occurs in clause (v) of Section 2 (a) is not defined in the Act and therefore, it must receive its ordinary and natural meaning, that is to say, a meaning which takes account of and accords with the day-to-day affairs of life. Cattle and poultry are living components of the natural environment and there is no reason to exclude that which they eat or feed upon, from the meaning of the word 'foodstuffs'. If, what the human beings eat is food, so is what the other living beings eat. 'Cattle fodder' is expressly brought with the compass of essential commodities by clause (i) of Section 2 (a). It would be illogical if, in that context, rice bran is excluded from the purview of essential commodities on the ground that it is eaten by the poultry and not by Homo Sapiens. "
9. In the case of Commissioner of Sales Tax v. V.L. Industries reported in 112 STC 311. the Division Bench of the Bombay High Court has considered the expression foodstuff as follows "The dictionary meaning of these expressions is also in no way different than the common parlance meaning. According to Oxford Advance Learner's Dictionary "food" means any substance that people or animals eat or drink or plants take in to maintain life and growth. Foodstuff has been described as any substance used as food. Similarly, in Random House Dictionary of English language, food has been described as any nourishing substances that is eaten or otherwise taken into the body to sustain life, provide energy, provide growth. Foodstuff has been described as a substance used or eatable of being used as a nutriment. Food provisions also conveys similar meaning."
10. In Webster's 3rd International Dictionary 'food' is defined as nutritive material absorbed or taken into the body off an organism which serves for purposes of growth, work or repair and for maintenance of the vital process.
11. In my opinion, it is more appropriately covered under the notification No. ST-II-5905, 12.10.1983 under the entry of other soft beverages.
12. "Beverage", as commonly understood, means any liquid for drinking other than water. It is a name applied to drinks. In Webster's 3rd International Dictionary, "beverage" has been described as "liquid for drinking especially such liquid other than water (as tea, milk, fruit juice, beer) usually prepared (as by flavouring, heating, admixing) before being consumed". The Random House Dictionary of the English language (College Edition) describes "beverages" as "any liquid for drinking especially such liquid other than water".
13. In the case of Hamdard (Wakf) Laboratories v. Collector of Central Excise reported in (1999) 6 Supreme Court Cases 617, Rooh Afza which is in the liquid form has been held as beverages.
14. For the reasons stated above, I am of the view that Amul Elaichi Shake and Amul Coco Shaker which is called as flavoured liquid milk being a soft beverages is liable to tax under the notification No. ST-II-5905 dated 12.10.1983. View of the Tribunal is set aside and the order of the assessing authority is restored.
15. In the result, revision is allowed and the order of the Tribunal is set aside.