Boiling milk, as part of the process of preparing "chhana", constitutes "cooking", and "chhana" is therefore "cooked food" exempt from taxation under the Bengal Finance (Sales Tax) Act, 1941.

( 1 ) "chhana", according to the Rules framed under the Prevention of Food Adulteration Act, 1954, means "the product obtained by precipitating the curd from boiling whole milk cow and buffalo by addition of lactic and oltric acids or any other suitable coagulating agent". The question for my consideration, in this Rule, is whether "chhana" is "cooked food", as in Item 7 of the Schedule to the Bengal Finance (Sales Tax) Act, 1941 and as such exempt from faxation, This identical question arose between the same parties in Civil Rule No. 1924 of 1960 (Cal ). On that occasion I remanded that matter to the Commercial Tax Officer with a direction upon him to decide, on evidence, whether "chhana" can all be treated as "cooked food". After remand, the Commercial Tax Officer took evidence and came to me conclusion that "chhana" should not be treated as "cooked food". The finding of the Commercial Tax Officer are being disputed in this Rule on the two-fold ground, (1) that the findings are opposed to the evidence on record or alternatively, based on surmises and conjeotures and (2) that the Commercial Tax Officer failed to conform to the directions contained in the remand order.

( 2 ) THE petitioner says that he is an Aratdar, that is to say a wholesale dealer, in "chhana". On 28-1-1960, the respondent No, 1 Commercial Tax Officer started a case for assessment of sales tax upon the petitioner and called upon him to produce his books of account. The petitioner objected to the proceeding, inter alia, on the ground that "chhana" being "cooked food" was exempt from taxation under Section 6 read with Item 7 of the Schedule to the Bengal Finance (Sales Tax) Act, 1941, That objection was over-ruled. Aggrieved thereby, the petitioner moved this Court, under Article 226 of the Constitution, and obtained Civil Rule No. 4924 of 1960 (Cal ). That Rule, as I have already stated resulted in a remand and was disposed of with the following observations: "section 6 of the Bengal Finance (Sales Tax) Act provides that no tax shall be payable on of sale of goods specified in the first column of the schedule, subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereof. In the schedule milk is excepted as also cooked food, other than 'cakes, pastries, biscuits and sweetmeats except when sold in sealed containers, It is nobody s case that the petitioner sells "chhana" in sealed containers. The question for my consideration is whether "chhana" is cooked food. "chhana" means the product obtained by precipitating the curd from boiling whole milk of cow and buffalo by the addition of lactic or citric acids or any other suitable coagulating agent (See the Prevention of Food Adulteration Rules, 1955, Appendix B ). The Dictionary meaning of cooking is 'to prepare food by the action of heat' (see Oxford English Dictionary ). It is difficult to dispute that boiling is no part of cooking. In these circumstances, there is a prima facie case that "chhana" is cooked food. Mr. P. K. Banerjee, learned Advocate for the respondents Nos. 1 to 4, however, argued that I should not proceed on me dictionary meaning, but decide, on evidence as to how "chhana" s praparad and whether it fulfils the description of cooked food. I am not prepared to take evidence in this Court. Ultimately, both Mr. P. K. Roy learned Advocate for the petitioner and Mr. P. K. Banerjee, learned Advocate for the respondents Nos. 1 to 4, agreed that the matter should be remanded before the Commercial Tax Officer, with direction to him to allow the petitioner liberty to adduce evidence as of the method of preparation of "chhana" and to decide on the evidence as to whether "chhana" satisfies the description of cooked food. The Commercial Tax Officer will also be at liberty to take expert opinion on the point with liberty to the petitioner 'to cross-examine the experts, whose opinion the Commercial Tax Officer may take. Thereafter, the C