M.C Agarwal, J.:— This revision petition under section 11 of the U.P Sales Tax Act is directed against an order dated January 9, 1991 passed by the Sales Tax Tribunal, Lucknow in appeal No. 22 of 1990 against an order passed by the Commissioner under section 35 of the Act.
2. I have heard Sri Rajiv Sharma, learned Standing Counsel for the revisionist and Sri Bharat Ji Agrawal, Senior Advocate assisted by Sri S.M.K Chaudhary, counsel for the respondent.
3. The respondent manufactures and sells what it described as milk badam which is sweetened milk in which some dry fruits like cashewnut, almond and pista are added. The liquid so prepared is put in bottles to which cap is applied.
4. They are kept in freezer for cooling and are sold to the customers as a cold drink by removing the caps. The question was whether the commodity is milk and milk product within the meaning of entry No. 40 in a notification dated January 31, 1985. The said entry reads as under:
“Milk (other than condensed milk, milk powder or baby milk) and milk-products excluding (1) products sold in sealed containers, (2) sweetmeats, (3) ghee, (4) butter, cream and cheese, (5) ice-cream and ice-candy, (6) kulfi, (7) milk shake and (8) lassi.”
5. The Tribunal on a consideration of the facts of the case including the process of manufacture and sale has held that the commodity sold is basically milk and is, therefore, exempt from tax. I have been taken through the Tribunal's order. The facts are not in dispute and the Tribunal's decision does not seem to suffer from any illegality. The mere fact that the product is put in bottles with caps will not change the nature of the product. If the product is milk even its sale in sealed bottles would not make it taxable because the exclusion applies to milk product sold in sealed containers and not to milk itself. I, therefore, do not find any ground for interference in the Tribunal's finding. The revision petition has no force and is hereby dismissed.
6. Petition dismissed.
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