Indian Kanoon - Search engine for Indian Law

14. We may refer to the judgment of the Hon'ble Apex Court in the case of Commissioner of Commercial Tax, Indore and others Vs. T.T.K. Health Care Ltd. reported in (2007) 11 SCC 796. In the said case, a question arose whether fryums are to be treated as cooked food. The question arose under Section 2 (g) of the M.P. Commercial Tax Act. The Court held as under :-

"12. In the present case we have quoted the definition of the term 'cooked food'. It is an inclusive definition. It includes sweets, batasha, mishri, shrikhand, rabari, doodhpak, tea and coffee but excludes ice-cream, kulfi, ice-candy, cakes, pastries, biscuits, chocolates, toffees, lozenges and mawa. That the item 'cooked food' is inclusive definition which indicates by illustration what the legislatures intended to mean when it has used the term 'cooked food'. Reading of the above inclusive part of the definition shows that only consumables are sought to be included in the term 'cooked food'. In the case of 'fryums' there is no dispute that the dough/base is a semi-food. There is also no doubt that in the case of 'fryums' a further cooking process was required. It is not in dispute that the 'fryums' came in plastic bags. These 'fryums' were required to be fried depending on the taste of the consumer. In the circumstances we are of the view that 'fryums' were like seviyan 'Fryums' were required to be fried in edible oil. That oil had to be heated. There was certain process required to be applied before 'fryums' become consumable. In these circumstances the item 'fryums' in the present case will not fall within the term 'cooked food' under Item 2 Part I of Schedule II to the 1994 Act. It will fall under the residuary item "all other goods not included in any part of Schedule I".

13. In Bharat Co-operative Bank (Mumbai) Ltd. v. Co-operative Bank Employees Union, 2007 4 SCC 685, this Court has held that when the word 'includes' is used in the definition, as is the case under Section 2(g) of the 1994 Act, the legislature does not intend to restrict the definition; it makes the definition enumerative and not exhaustive, that is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within the term certain matters which in its ordinary meaning may or may not comprise. Applying the above test to the term 'cooked food' in Section 2(g) of the 1994 Act we find that the said term uses the word 'includes' in the definition. The said term 'cooked food' makes the definition enumerative when it includes within the said term sweets, batasha, mishri, shrikhand, doodpat, tea and coffee. When it enumerates items like sweets, mishri, batasha, dhoodpak, tea and coffee the enumerated items help us to probe into the legislative intent. The legislative intent in the present case under Section 2(g) is to include consumables. 'Fryums' in the present case at the relevant time were not directly consumable. They were under-cooked items. They were semi-cooked items. They required further process of frying and addition of preservatives to make them consumables even after the specified time. But for the preservatives the items would have become stale."

25. We have also noticed the judgment of the Hon'ble Apex Court in the case where question arose whether items like fryums are to be treated as cooked food.

The reasoning of the Hon'ble Apex Court was that fryums are only semi cooked and they are not consumable and they cannot be directly consumed. Such products must undergo further process of cooking, which involves use of oil and heat and only after further cooking, it becomes ready to be consumed as cooked food.

26. We have noticed also that in products like icecream though there may be a process of cooking involved; in that, milk is heated and thereafter cooled to the required level, it is not understood in the market as cooked food. It may be equally true that when one goes to a hotel and asks for cooked food, he/she would ordinarily not be served with biscuits as was the position in the case of Annapurna Biscuit Manufacturing Co. Vs. Commissioner of Sales Tax, U.P., Lucknow reported in 1981 (48) STC 254. But, since in this case, we are concerned with the question as to whether Samosa is to be treated as namkeen or cooked food and we are not asked to pronounce upon whether it is to be treated as unclassified items, the choice is narrowed down to whether it is to be treated as namkeen or as cooked food. If we apply the test as to whether it is consumable in the sense that it would be ready to be eaten unlike the case of fryums, there can be no manner of doubt that samosas are cooked food. This if for the reasoning that when a person dealing in samosa offers it for sale to the consumers, then without any further act on the part of consumer, it is ready to be consumed and it is in a consumable condition. In that sense, there can be no doubt that it is cooked food. There can also be no doubt that samosa is a product which emerges or gets manufactured after involving a process of cooking.