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(iv) Interpretation of the entries :

Mr. C. Natarajan compares entry 103 (viii) with entries like 116 and 120 of the First Schedule to the Tamil Nadu General Sales Tax Act. He stressed the absence of the words "wholly or exclusively" in entry 103(viii). He argues that the Legislature is deemed to be aware of the normal rule of construction and therefore, the absence of the word, "wholly or exclusively" in entry 103(viii) should be given due weightage. The addition of the mash of ground barley and wheat flour to the milk will no therefore take the product Horlicks away from the entry 103(viii). Reference is made to (Union of India v. Tata Iron and Steel Co. Ltd.) and (Aluminium Corporation of India Ltd. v. Union of India). It is no necessary to go through the said decisions to accept the proposition that Legislature is deemed to be aware of the normal rule of construction and the use of the words, "wholly" or "partly". Learned counsel also relies on (Collector of Central Excise v. Calcutta Steel Industries) on the question of burden of proof. We do not think that it is necessary to rest the case entirely on the technical aspect of the burden of proof. When both the parties are placing all the materials before the court, it is not necessary to accept or reject a case purely on the ground of burden of proof. A series of decisions starting from Commissioner of Sales Tax v. Pure Ice Cream Company [1975] 36 STC 18(Bom), Dayal Singh Kulfiwale v. Commissioner of Sales Tax [1979] 43 STC 374 (All), Collector of Central Excise v. Parle Export (P.) Ltd. , State of Tamil Nadu v. Indodan Milk Products [1980] 45 STC 498 (Mad.), Indodan Milk Products Ltd. v. Commissioner of Sales Tax [1974] 33 STC 381 (All.) and Collector of Central Excise v. Protein Products of India Ltd. are referred to for understanding the entry "milk food". These are decisions relating to ice-creme kulfi, as a milk product, bone product milk product like condensed milk and so on and so forth. We do not think that it is necessary to go into details of those decisions because they cannot help us in uderstanding the difference between entry 103(vii) and 103(x). We feel it is better to refer to the entries in dispute before coming to a conclusion one way or the other. The entry 103(vii) deals with milk foods including milk powder whereas entry 103(x) deals with foods including preparations of vegetables, fruits milk, cereals, flour, starch, etc. It is argued that milk product may fall short of milk food and fall under entry 103(x). It is also argued that entry 103(viii) is a specific provision whereas entry 103(x) is a general provision. Under entry 103(x) milk need not be predominant in the product. Under entry 103(viii), it is argued that the milk must be the predominant ingredient in the manufacture of the product. Reference is also made to (State of Tamil Nadu v. Pyare Lal Malhotra) to interpret the entries. That was the case relating to the entry "iron and steel" in the Second Schedule to the Tamil Nadu General Sales Tax Act. That entry started by saying "iron and steel, that is to say," and proceeded to describe the various forms of iron and steel sold in the market. The Supreme Court in that case explained that each sub-item is a fresh starting point and is a separate taxable commodity for the purpose of sales tax and each of them forms a separate species for each series of sales of them, and they may all belong to the same genus (iron and steel). Even this judgment may not be of much help in understanding the entry 103(viii) and 103(x). In Commissioner of Sales Tax v. Agarwala and Company [1983] 52 STC 117 (Bom) it was held that milk would ordinarily include milk in all its forms including evaporated or dehydrated milk or milk powder. It was held that skimmed milk powder would fall under the entry "milk powder". There is however, one Division Bench judgment of our High Court which is more helpful to decide the case. That is, State of Tamil Nadu v. A. K. Sundaram [1983] 54 STC 82. In that case, the question was whether arrowroot powder sold by the assessee would fall under entry 103(viii) of the First Schedule or not. At the time of the said decision, the present entry 103(x) was 103(viii) and entry 24 was available. In other words, the said judgment is an interpretation of entry 103(x) for the purpose of our case. The following passage may be noticed :

We have extracted the main portion of the judgment for the purpose of our conclusion that entry 103(x) has to be read along with the main item, viz., "food". A controversy was raised by learned Additional Government Pleader that any beverage can also be a food item. Several judgments were cited on that point. For instance, in Commissioner of Sales Tax v. Sunhari Lal Jain [1975] 35 STC 425 (All.), it was held that hot tea is not a cooked food but only a beverage. In that case, the court was considering the expression, "cooked food" in the U.P. Sales Tax Act. In State of Gujarat v. Sarabhai Chemicals [1971] 27 SC 170 (Guj), "Limical", a product manufactured in the form of biscuits as well as in the form of powder with flavours and used mainly for the purpose of reducing obesity was held to be not an article of foodstuff or food provision. In Collector of Central Excise v. Parle Exports (P.) Limited , the question was whether non-alcoholic beverage bases are "food Products" or "food preparations" covered by the exemption Notification No. 55/75-CE dated 1st March, 1975, issued under the Central Excises and Salt Act, 1944. The Supreme Court held as follows at page 117 :