The term "milk" in Entry 36 of Schedule A to the Bombay Sales Tax Act, 1959, should be interpreted broadly to include all forms of milk, including milk powder.

The judgment of the Court was delivered by

SUJATA MANOHAR, J. - The respondents, Messrs. Agarwal & Co., are resellers in tea, coffee and skimmed milk powder. For the period 1st April, 1975, to 31st March, 1976, the Sales Tax Officer subjected the sales of skimmed milk powder to tax rejecting the contention of the respondents that skimmed milk powder was covered by entry No. 36 of Schedule A to the Bombay Sales Tax Act, 1959, as then in force, and hence was exempt from the payment of sales tax. The Sales Tax Officer accordingly held that the sales of skimmed milk powder amounting to Rs. 24,593 were liable to be taxed. From this finding the respondents appealed before the Assistant Commissioner of Sales Tax. The appeal was dismissed. The respondents preferred a second appeal before the Tribunal. The respondents relied upon a decision of the Commissioner in the determination proceedings under section 52 of the Act in the case of Messrs. Vyas Corporation (DDQ-1171/164/B-2 dated 4th October, 1972) and the detailed discussion of facts and law in that decision. They also submitted that a subsequent decision of the Commissioner in determination proceedings in the case of Messrs. Hariom Sales Corporation (No. DDQ-1174/198/B-10 dated 13th December, 1975) was not applicable to the present case. The respondents also challenged the correctness of the decision in Hariom Sales Corporation case. The Tribunal considered in detail the decisions of the Commissioner in two earlier cases as well as the detailed reasoning given in these two decisions and came to the conclusion that skimmed milk powder is covered by entry No. 36 of Schedule A to the Bombay Sales Tax Act, 1959, as then in force. The Tribunal accordingly allowed the second appeal filed by the respondents. Thereafter, at the instance of the department, the following two questions have been referred to us under section 61(1) of the Bombay Sales Tax Act, 1959 :

"(1) Whether, on a true and proper interpretation of entry No. 36 in Schedule A to the Bombay Sales Tax Act, 1959, the Tribunal was correct in holding that the 'skimmed milk powder' falls within the scope of the said entry ?

(2) Whether there was any evidence before the Tribunal for coming to the conclusion that skimmed milk powder is now understood as milk in common parlance ?"

2. Under section 5 of the Bombay Sales Tax Act, 1959, the sale and purchase of goods specified in Schedule A is free from all taxes. Entry 36 of Schedule A to the Bombay Sales Tax Act, 1959, at the relevant time was as follows :

"Milk, whole or separated or reconstituted."

3. We have to consider whether skimmed milk powder falls within this entry. According to the applicant, "milk" must be construed as milk in liquid form. Milk powder, according to the applicant, cannot be considered as milk. Mr. Jetly, the learned counsel for the applicant, relied upon the dictionary meaning of "milk". The Concise Oxford Dictionary defined "milk" as "Opaque while fluid secreted by female mammals for nourishment of their young". The application placed an emphasis on the word "liquid" and submitted that milk in powder form cannot be considered as milk. Mr. Jetly also drew our attention to the observations of the Supreme Court in the case of Health ways Dairy Products Co. v. Union of India reported in AIR 1976 SC 2221. The Supreme Court in that case was concerned with the interpretation of various entries in the Central Excises and Salt Act, 1944, and a notification issued thereunder, which entries are very different from the present entry in the Bombay Sales Tax Act, 1959. In view of the specific entries in that Act and the notification, the Supreme Court held that the entry relating to condensed milk did not cover condensed skimmed milk. In Healthways Dairy Products Co.'s case AIR 1976 SC 2221 the Supreme Court was considering item 1B of the First Schedule to the Central Excises and Salt Act, 1944, whereunder 10 per cent ad Valorem duty was levied on "prepared or