JUDGMENT R.M. Sahai, J.
1. Taxability of apple juice which was manufactured by the assessee in the assessment year 1975-76 and supplied only to M/s. Mohan Meakin Breweries Ltd., Mohan Nagar, Ghaziabad, is in dispute. It is admitted that the assessee started supply from September, 1965. It extracted apple juice and sold to M/s. Mohan Meakin Breweries Ltd. It claimed before the assessing authority that the sale made by it was not taxable as the item could be held taxable only if it was sold in tin or tin container. This contention was not accepted. In appeal also the same contention was reiterated but was rejected. Before the revising authority the assessee claimed that the apple juice supplied by it was cold drink and therefore it was not liable to pay any tax as tax on cold drink was single point at the point of sale to consumer. The revising authority did not see any merit in it as admittedly the assessee supplied raw apple juice which was not marketable unless it was tested chemically. According to the revising authority as this was done by M/s. Mohan Meakin Breweries Ltd. apple juice manufactured by the assessee could not be considered to be cold drink.
2. Now the assessee claims that apple juice is nothing but beverage taxable under Notification No. 4949 of 30th May, 1975. But the tax being .at the point of sale to consumer and that also be served to customer the sale of the assessee was not covered in it. According to the learned counsel the goods mentioned in the notification having become taxable at the point of sale to the consumer no tax could be levied at any other point.
3. The first question therefore is whether apple Juice is a beverage.
4. Till 1975 cold drink, beverages, etc., were taxable at multiple point under Notification No. ST-6628 issued under Sub-section (2) of Section 3-A of the Sales Tax Act. Since 1975 it became taxable at the point of sale to the consumer under Notification No. ST-4949 dated 30th May, 1975, issued under Sub-section (2A) of Section 3-A.
5. The entry reads as under:
Hot and cold drinks, ice-cream, kulfi, milkshake, lassi, beverages, squashes or sharbat, when served to customers.
6. "Beverage" has been defined in "The Random House Dictionary of the English Language" as:
A drink of any kind, other than water such as tea, coffee, beer, milk, etc.
7. In "Encyclopaedia Britannica (Mycropedia)", page 1095, it has been described thus:
Liquid prepared for human consumption including types made by an infusion such as tea and coffee, fruit juices and other juices extracted from plants, such carbonated drinks as ginger ale and root beer, and alcoholic beverages, including wine, made by a fermentation process, and distilled liquor, requiring both fermentation and distillation.
8. In "Words and Phrases", Vol. 5, "beverage" has been defined :
Beverage in its common meaning signified liquid designed for drinking by human beings.
9. The dictionary meaning of the word is very wide. It extends to drink of any kind except water. It would be relevant to mention here the Hindi notification. It reads as under :
Garni tatha thande peya, ice-cream, kulfi, milkshake, lassi, peya padartha, skvash ya sharbat jab ve upbhoktayon ko sarva kiye jaya.1
10. This clarifies that the intention was to use the word in widest amptitude. The word peya.2 is in complete accord with dictionary meaning of beverage. It is not and cannot be disputed that apple juice without even processing is peya padartha3.
11. Coming to the notification it is obvious that ST-4949 impliedly overruled Notification No. 6628. The argument of the learned standing counsel that beverage sold in tin containers, etc., continued to be taxable under earlier notification cannot be accepted for reasons to be stated hereinafter. Section 3-A prescribes rates of tax. It has three Sub-sections (1), (2) and (2-A). In the first are mentioned goods which are taxable at higher rate at single point. Sub-section (2) prescribes rate of tax at multiple point, with power to reduce or enhance from or up to it. Sub-section (2-A) is what may be called to be residuary clause. Whatever is not covered in (1) and (2) is taxable in the hands of manufacturer or importer. Before 1974 any goods which was not covered by any notification was taxable at multiple point. But from 1971 there is this change. To appreciate the effect of this provision particularly the proviso it is quoted below :
(2-A) The turnover in respect of goods other than those referred to in Sub-sections (1) and (2) shall be liable to tax at the point of sale by the manu-facturer or importer at the rate of seven per cent:
Provided that the State Government may, from time to time, by notification in the Gazette, modify the rate or point of tax on the turnover in respect of any such goods with effect from such date, as may be notified in that behalf, so, however, that the rate does not exceed seven per cent.
12. The proviso empowers the State Government to issue notification in respect of "such goods", prescribing point and rate of tax. The words "such goods" obviously refer to goods mentioned is Section 3(2-A). In other words what was taxable at the point of manufacture and import could be taxable at any other point, for instance, at the point of sale to consumer. Under this proviso the notification was issued on 30th May, 1975, prescribing the point of tax in respect of item mentioned thereunder. The goods did not remain liable to tax at another point. The argument of the learned standing counsel that even after the issue of notification under the proviso the goods remained taxable in the hands of manufacturer or importer does not appear to be correct. The point could be one. It does not empower the State Government to tax more than one point. What cannot be done directly cannot be understood to have been doneimpliedly.
13. The learned standing counsel urged that the words "when served to customers" in the entry itself were significant. He suggested that this restricted the scope of entry. There appears to be no difficulty in accepting it but his further suggestion that sale when made to other than customers was taxable under Section 3-A cannot be accepted for the reasons stated earlier. The intention obviously is to tax the last point.
14. It was then urged by the learned standing counsel that if it is held by this Court that sale to M/s. Mohan Meakin is not taxable as it ¦ was not sold to customers, the case should be sent back to the revising authority to find out the difference in respect of the disclosed turnover and that sold to M/s. Mohan Meakin was sold to customers. The prayer appears to be reasonable.
15. The learned counsel further urged that for failure of producing accounts at the time of survey its account books could not be rejected. It is not necessary to go into the controversy as admittedly the assessee did not produce its cash book. The revising authority found that cash book was maintained. It is primary book of account. In its absence sales and purchases of the assessee could not have been verifiable. The authorities therefore did not commit any error in rejecting the account books.
16. In the result this revision succeeds and is allowed. The order passed by the Additional Judge (Revisions), Sales Tax, is set aside. The assessee is held non-taxable on manufacture of apple juice sold to M/s. Mohan Breweries. In respect of the turnover in excess over the disclosed turnover it shall be examined whether any evidence is on record to show that sale was made to customers. For this limited purpose the revising authority shall decide the revision again.
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