The term 'cooked food' should be interpreted in its popular sense or common parlance meaning.

U.N. Bhachawat, J.

1. This order shall also dispose of the companion cases- Misc. Civil Case No. 93 of 1980 (Commissioner of Sales Tax v. Gyanmal Keshrichand, Shivpuri) and Misc. Civil Case No. 98 of 1980 (Commissioner of Sales Tax, M.P. v. Jain Ice Candy, Guna) as a common question of law is involved in all these cases.

2. The Sales Tax Tribunal (Board of Revenue, Madhya Pradesh) (hereinafter referred to as "the Tribunal") under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, referred the following question to this Court, for answer :

Whether under the facts and circumstances of the case, ice-cream, ice-candy is cooked food and is covered by item 8 of Part I of Schedule II appended to the M. P. General Sales Tax Act, 1958 (hereinafter referred to as 'the Act').

The assessment years involved are :

1968-69 in M.C.C. No. 92 of 1980

1969-70 in M.C.C. No. 93 of 1980

1971-72 in M.C.C. No. 98 of 1980

3. The assessees were assessed to tax at 7 per cent in respect of sale of icecream. The respective assessees preferred their respective appeals before the Appellate Assistant Commissioner, Sales Tax, wherein it was contended that icecream should be treated as cooked food and tax on its sale should be levied at 2 per cent. The Appellate Assistant Commissioner rejected the appeals. Second appeals were preferred before the Tribunal. The Tribunal held that ice-cream and ice-candy are cooked food and liable to be taxed as such under entry 8 of Part I of Schedule II to the Act and referred the above question at the instance of the department.

4. The reference was placed for hearing before the Division Bench of this Court. The Division Bench found that there was a divergence of opinion in the two Division Bench decisions of this Court, namely, in Commissioner of Sales Tax, Madhya Pradesh v. India Coffee Workers' Co-operative Society Ltd., Jabalpur [1969] 2 VKN 138 and in Misc. Petition No. 214 of 1976 (Commissioner of Sales Tax, M. P. v. Mahavir Ice Cream Factory, Shivpuri) decided on 9th April, 1980, and therefore, the matter has been referred to the Full Bench.

5. It may be made clear that the learned counsel for the parties did not dispute that there is no difference between ice-cream and ice-candy.

6. The central core of the argument of the learned counsel for the respective assessees was that milk is the essential component of ice-cream and for preparing ice-cream it has to be heated, and therefore, it is a cooked food covered under entry No. 8 of Part I of Schedule II to the Act. The learned counsel also drew assistance to support their contention from the subsequent legislation, that is, amendment of entry No. 8 in question with effect from 31st August, 1974, and the further amendment, vide M.P. Act No. 25 of 1978 whereby the entry in question was replaced by entry No. 4 as "cooked food" and cooked food was defined vide Section 2(cc).

7. The bed-rock of the argument in counter of the learned Government Advocate appearing for the department was that to decide whether ice-cream, ice-candy is a cooked food, its wider meaning should not be adopted, but what is understood by this expression in common parlance has to be adopted. He submitted that taking the meaning of "cooked food" as understood in common parlance, ice-cream and ice-candy do not come under the category of "cooked food". It was also argued by the learned Government Advocate that no assistance can be drawn from the subsequent amendments. His submission was that in common parlance ice-cream was never understood as "cooked food" and hence it was not for clearing any ambiguity in the term "cooked food" that the amendments were effected, but as in India Coffee Workers' Co-operative Society Ltd.'s case [1969] 2 VKN 138 in a different context an observation was made, therefore, by way of abundant caution the amendments were made. He also argued that the Hindi version of the word is as is used in the subsequent amendments which go to show that ice-cream and ice-candy could n