# The Commissioner of Sales Tax v. S/S Melrose Biscuit Co., Aligarh

- **Citation:** (2004) 2 ILRA 389
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-01-21
- **Case number:** Sales Tax Revision No. 1444 of 1990
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-commissioner-of-sales-tax-v-s-s-melrose-biscuit-co-aligarh-40376
- **Pages:** 4

## Headnote

U.P. Sales Tax, Act-S. 4 (a)-Whether
commodity
called
'Kachari'
within
meaning of Notification dated 7.9.81 and
is liable to be exempted from payment of
Sales Tax or Commodity is a 'Namkeen'
and is liable to be taxed as such-Held,
product in question cannot be called
Kachari-It
is
not
covered
by
said
notification in view of fact that Kachari
as generally understood is a preparation
of rice-Since product in question has
been prepared out of Maida, is not
understood
in common parlance
as
'Kachari'-Hence same was rightly taxed
as
'Namkeen'
by
First
Appellate
authority.

In view of the above the product in
question cannot be called Kachari. It is
not covered by the aforesaid notification
in view of the fact that Kachari as
generally understood is a preparation of
rice. I find sufficient force in the
argument
of
the
learned
standing
counsel
that
since
the
product
in
question has been prepared out of Maida
is not understood in common parlance as
'Kachari' and was rightly taxed as
"Namkeen"
by
the
first
appellate
authority.

Para 8
Case law discussed:
1987 U.P.T.C. 1298

## Text

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2 All] The Commissioner of Sales Tax V. S/S Melrose Biscuit Co., Aligarh
389
were filled up only to deprive the right of
promotion to the respondent who was
placed as contingent reserve.

15. In the present case, the Rules of
1976 did not provide for periodical list.
Rule 10 (1) requires the appointing
authority to ascertain the probable number
of vacancies likely to occur during the
course of the year of recruitment. The
impaneled assistants selected after written
examination do not have a right to be
appointed on the post beyond the
vacancies ascertained by the appointing
authority to be filled up from the
recruitment. There were 30 vacancies for
which applications were invited on
5.3.2002 and that out of the select list
dated 21.1.2003, 39 persons were given
appointment. Nine persons out of the
select list received appointment beyond
the number of vacancies worked out by
the appointing authority. The 18 posts
sanctioned by the State Government vide
Government Order dated 8.11.2001 were
not decided to be filled up in the previous
recruitment as these posts were created
subject to elevation of Hon'ble Judge. In
these
circumstances
the
appointing
authority acted well within his authority
under the rules to declare next selection
for the 20 existing and one likely vacancy
to occur on retirement before June, 2004.

16. The petitioners as selected of the
list which does not hold good any more
now no longer hold good, cannot claim a
right to be appointed to the 21 vacancies
advertised by notice dated 6.2.2004.

17. I do not find any force in the
contention
of
the
counsel
for
the
petitioners that after 1988 the examination
to Routine Grade Clerks were held in
1994, and that since the result of 1994
examinations were declared in March,
1994, there will be no one amongst the
eligible other than those who appeared
along with the petitioners, for selection in
2002, to appear in the selection advertised
by notice dated 6.2.2004. Out of 60
applicants in the current selections, there
are 20 new applicants, and that 30 Upper
Division Assistants, 7 Lower Division
Assistants and 1 Routine Grade Clerks
have acquired eligibility after the previous
selections. In case the subject vacancies
were decided to be filled from previous
selection, the valuable rights of selections
of these persons who have acquired
eligibility subsequently was to be likely
defeated.

18. For the reasons given as above, I
do not find that the appointing authority
acted illegally, arbitrarily or in violation
of petitioners rights under Article 14 and
16 of the Constitution of India in
declaring fresh selections for 21 vacancies
of Bench secretary Grade II, and
curtailing the life of previous select list
dated 21.1.2003. Consequently the writ
petition fails and is dismissed, with no
order as to costs.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.4.2004

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Sales Tax Revision No. 1444 of 1990

The Commissioner of Sales Tax

...Applicant
Versus
S/S Melrose Biscuit Co., Aligarh

...Opposite Party

Counsel for the Applicant:
S.C.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
390
Counsel for the Opposite Party:

U.P. Sales Tax, Act-S. 4 (a)-Whether
commodity
called
'Kachari'
within
meaning of Notification dated 7.9.81 and
is liable to be exempted from payment of
Sales Tax or Commodity is a 'Namkeen'
and is liable to be taxed as such-Held,
product in question cannot be called
Kachari-It
is
not
covered
by
said
notification in view of fact that Kachari
as generally understood is a preparation
of rice-Since product in question has
been prepared out of Maida, is not
understood
in common parlance
as
'Kachari'-Hence same was rightly taxed
as
'Namkeen'
by
First
Appellate
authority.

In view of the above the product in
question cannot be called Kachari. It is
not covered by the aforesaid notification
in view of the fact that Kachari as
generally understood is a preparation of
rice. I find sufficient force in the
argument
of
the
learned
standing
counsel
that
since
the
product
in
question has been prepared out of Maida
is not understood in common parlance as
'Kachari' and was rightly taxed as
"Namkeen"
by
the
first
appellate
authority.

Para 8
Case law discussed:
1987 U.P.T.C. 1298

(Delivered by Hon'ble Prakash Krishna, J.)

1. The dealer opp.party deals in the
manufacture and sale of bread, biscuits,
"Namkeen"s etc. The dispute in these two
revisions relate to the assessment year
1982-83 and 1983-84. The following
common question of law has been raised
by the Commissioner of Sales Tax in the
above revisions:-

"Whether on the facts and in the
circumstances of the case the Sales Tax
Tribunal was legally justified to dismiss
the appeal of the Commissioner, Sales
Tax U.P. and partly allow the appeal of
the assessee by holding that the salted
preparation of Maida termed as Kachari
by
the
assessee
was
covered
by
notification No.ST-II-5788 dated 7.9.81
and, therefore, exempt from tax though
Kachari has been held to be a preparation
from rice by the Hon'ble High Court in
the case of Kasturi Lal and Sons Vs.
C.S.T. U.P. (1987 U.P.T.C. P - 1298)
whereas in the present case the impugned
commodity was prepared out of Maida
which is altogether different commodity
like potato chips?"

2. Heard the counsel for the parties
and perused the record. In both these
revisions the dispute is whether the
commodity which is called 'Kachari' by
the dealer opp. party is, in fact, a
'Kachari'
within
the
meaning
of
notification no.5785 dated 7.9.81 and is
liable to be exempted from the payment
of sales tax or the commodity is a
"Namkeen" and is liable to be taxed as
such.

3. The assessing authority has found
that the 'Kachari' is ordinarily prepared
from rice. Admittedly the commodity in
question which has been called as
'Kachari' by the dealer opp. party has
been prepared out of Maida. The said
commodity is used after frying with oil in
the frying pan. The argument of the
assessee that the since the produce in
question is used after frying in oil is,
therefore, 'Kachari' has not been accepted
by the assessing authority on the ground
that it is preparation of Maida. The tax
was imposed treating it as unclassified
item. The first appellate authority has held
that the product in question is "Namkeen"
as it was treated as "Namkeen" in the
earlier assessment years and as such it
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2 All] The Commissioner of Sales Tax V. S/S Melrose Biscuit Co., Aligarh
391
cannot be treated as unclassified item and
modified
the
assessment
order
accordingly. The tribunal has held that
generally the word 'Kachari' is used with
respect to such eatable item which are
eaten after frying and is crisp. Ordinarily
'Kachari' is made from rice but due to
new advancement different kinds of
Kacharies
are
being
manufactured.
Therefore product though prepared out of
Maida is Kachari. It has also observed
that in the registration application by way
of amendment the dealer opp. party has
mentioned that he will manufacture
Kachari (Namkeen) which means that
registration was applied for Kachari and
not only for "Namkeen". This order is
under challenge in the revisions. At this
stage it is relevant to have the wordings of
the notification no.5788 dated 7.9.1981.

"In exercise of the powers under
clause (a) of section 4 of the U.P. Sales
Tax Act, 1948 (UP Act No. XV of 1948),
the Governor is pleased to order that,
with effect from September 7, 1981, no tax
under the said Act shall be payable on the
sale or purchase of the following goods:-
1.
Flowers, flower seeds, seedlings,
plants and seeds of Kakari, Kheera,
Kharbooja and Tarbooj.
2.
Sewaiyan, Bari, Mungauri, papar
and kachari."

The said notification has been issued
under section 4 (a) of U.P. Sales Tax Act.
This
section
empowers
the
State
Government to grant exemption on the
sale or purchase of water, milk, salts,
newspaper, motor spirit, diesel oil or
Alcohol or notified goods which the State
Government may notify. A bare perusal
of the aforesaid notification shows that
under
clause-2
of
the
notification
Sewayeen, Bari, Mungauri, Papar and
Kachari
have
been
exempted
from
payment of sale or purchase tax by the
State Government in exercise of power
under section 4 (a) of the Act.

4. Kachari has not been defined
anywhere either in the Act or the
notification.

5.

The
settled
principle
of
interpretation of taxing Statute is that the
items in taxing Statute must be construed
in the sense in which they are sold by the
dealer and purchased by the consumer.
The operation of a notification has to be
judged not by the object which the rule
making authority had in mind but by the
words which it has employed to effectuate
the legislative intents. The words or
expressions used in a notification must be
construed in the sense in which they are
understood by the trade and by the
consumer and not by what is understood
by the department. There is no ambiguity
as
regards
the
word
'Kachari'
is
concerned. All the authorities below
including the tribunal have observed that
'Kachari' is ordinarily made from rice. It
is another thing that now with the
advancement it can be made of Maida. In
the case of Kastoori Lal and Sons vs.
Commissioner
of
Sales
Tax
1987
U.P.T.C. 1298 it has held, interpreting
notification in question that 'Kachari' is
preparation of rice. The relevant portion
of the said judgment is quoted below: -

"Finding of the tribunal is that
'Kachari' is a preparation of rice. I quite
agree with the tribunal because in
common parlance, 'Kachari' is one which
is prepared out of rice and, therefore,
potato chips cannot be exempted even
under notification dated 7.9.81."
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
392

6. The court was examining the
question as to whether potato chips can be
included in the definition of 'Kachari' or
not. It was answered that potato chips are
not 'Kachari'. In the case in hand the
dealer opp. party has submitted that since
the produce in question is used after
frying in oil, therefore, it is 'Kachari'. If
this reasoning would have been correct, it
is a matter of common knowledge that the
potato chips are also fried with oil in
frying pan and would have been treated as
'Kachari'. Therefore, this part of the
argument that the product in question is
fried with oil in frying pan and therefore
has to be treated as 'Kachari', cannot be
accepted in view of the aforesaid
judgment of M/s. Kastoori lal and Sons.

7. The dealer opp. party was
claiming
benefit
of
the
exemption
notification issued under section (a) of the
Act. The burden was upon it to prove that
the produce in question is treated in
common parlance as 'Kachari'. The
tribunal was very much influenced by the
fact that the dealer in the sale vouchers
has mentioned the product as 'Kachari'
and that in the registration certificate, the
registration was sought by way of
amendments
for
the
purpose
of
manufacture of 'Kachari' (Namkeen). To
my mind these circumstances are wholly
irrelevant and should not have been taken
into account as they are in the nature of
self-serving statement.

8. In view of the above the product
in question cannot be called Kachari. It is
not covered by the aforesaid notification
in view of the fact that Kachari as
generally understood is a preparation of
rice. I find sufficient force in the
argument of the learned standing counsel
that since the product in question has been
prepared out of Maida is not understood
in common parlance as 'Kachari' and was
rightly taxed as "Namkeen" by the first
appellate authority.

9. In the result both the revisions are
allowed to the extent indicated above and
the order of the tribunal is set aside
accordingly.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.06.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Special Appeal No. 768 of 1999

Executive Officer, Municipal Board, Kosi
Kalan, Mathura and another ...Appellants
Versus
Kishan Singh

 ...Respondent

Counsel for the Appellants:
Sri P.K. Singhal

Counsel for the Respondent:
Sri A.R. Dubey

U.P. Fundamental Rules (Amendment)
Act,
1976-Respondent-R.56-J
(2)(b)-
Compulsory retirement-Adverse entrynon-communication-No opportunity to
make representation. Held, cannot be
relied upon for compulsory retirement.

A perusal of Clause (2) (b) shows that
the authority which is to pass the order
of compulsory retirement must consider
the representation which is pending
against an adverse entry. Now there can
be no representation if the adverse entry
is not communicated. Hence, it is implicit
in the said clause that the entry must be
communicated
to
the
concerned
employee so that he has an opportunity,
of making a representation against the
entry. Hence an uncommunicated entry