JUDGMENT The judgment of the Court was delivered by V. V. KAMAT, J. - The question that comes up for our consideration is of a limited character whether "falooda" would have to be understood as a milk product with reference to entry No. 122 of the Kerala General Sales Tax Act, 1963 or a "cooked food" including beverages as contemplated under entry 57, then prevailing for the assessment year 1991-92. Entry 57 is reproduced as follows : ------------------------------------------------------------------------ Sl. Description of goods Point of levy Rate of tax No. ------------------------------------------------------------------------ 1 2 3 4 ------------------------------------------------------------------------ 57 Cooked food including At the point of first 10 beverages not falling sale in the State by a under entry 76A of dealer who is liable to this Schedule sold tax under section 5. or served in, - (i) hotels and/or restaurants, the turnover in respect of which is twenty lakhs rupees and above; and (ii) bar attached hotels and/or restaurants. ----------------------------------------------------------------------- It would be seen that when such a cooked food is sold or served, it is to be noted that the turnover up to 25 (20 ?) lakhs rupees is exempted and above the said limit, it was then taxable at 10 per cent. 2. At the other end, entry 122 speaks of milk products and its cognates, as specified thereunder. By the said entry, it is taxable at 8 per cent. The said entry is reproduced herein below : ----------------------------------------------------------------- 1 2 3 4 ----------------------------------------------------------------- 122 Milk products, At the point of 8 including milk first sale in powder, baby food, the State by ghee, cheese and butter a dealer who is except curd and liable to tax buttermilk. under section 5. ----------------------------------------------------------------- It would be seen that milk products would have to be understood in the context as specified in the said entry, including milk powder, baby food, ghee, cheese and butter except curd and butter milk. The controversy is limited only to the extent of application of the above two entries. 3. The assessing authority has considered the claim of the assessee with regard to an amount of Rs. 1,27,400 towards the sale of "falooda", contending that there is exemption for the whole of the above amount. 4. It is held by the assessing authority that "falooda" comes under "milk products" liable to tax at 8 per cent by virtue of entry No. 122. 1,27,400 towards the sale of "falooda", contending that there is exemption for the whole of the above amount. 4. It is held by the assessing authority that "falooda" comes under "milk products" liable to tax at 8 per cent by virtue of entry No. 122. The authority has observed that the assessee was served with a notice affording an opportunity of being heard and further that the assessee has not availed of the opportunity, creating a situation of presumption that the assessee has no objection to the proposal on the basis of treating "falooda" as a milk product. 5. The first appellate authority, Appellate Assistant Commissioner, Agricultural Income-tax and Sales Tax, Kannur, by the order dated December 1, 1993, has considered the process of preparation of "falooda". It is as follows : "'Falooda' is a cooked food in liquid form (beverage) and this is prepared by cooking ingredients like vermicelli, sago and rice which are added to sugar syrup obtained by boiling equal quantities of sugar and water. Dry fruits like cashewnuts, kismis, tutti-fruiti and khus khus and fresh fruits like grapes, bananas, pineapple, mango, etc., are also added to the said cooked food. Hence falooda is a cooked food for the preparation of which boiling process is involved and sold as a beverage. 'Beverage' means, 'liquid prepared for drinking' as per dictionary definition....". It was contended before the first appellate authority that the sale turnover of cooked food including beverages sold or served in hotels and/or restaurants fall under entry 57 of Schedule I to the Kerala General Sales Tax Act, 1963 and thus it is liable to tax only when turnover in respect of these items is Rs. 25 (20 ?) lakhs and above. It was also submitted that similar cooked food, including coffee, tea and like articles, served in a hotel, restaurant or any other place are also exempted under section 9 of the Act, even though they do not strictly fall under entry 57 thereof. 6. The first appellate authority has rejected the submission with the following observations of a general character : "........I cannot agree with this as I find that this is a very costly item supplied in the shop which are consumed occasionally in certain seasons especially in 'summer'. It is a fact that falooda includes ice cream and major portion of milk products. It is a fact that falooda includes ice cream and major portion of milk products. I cannot agree with the learned S.T.P. that it is a beverage sold in hotels like coffee. For this it is a fact that coffee is available in almost all hotels big or small whereas the items referred to are served in certain a few shops even in big town and cities. To my knowledge the appellant were paying tax for ice cakes, falooda, etc., for previous years on the ground that it is a milk product. Further he had already as per accounts of this year admitted taxable turnover on ice cakes and Juice and cool drinks and it is felt that the appellant was also of the view that 'falooda' is also a milk product which is not falling under entry 57 of Schedule I of the Kerala General Sales Tax Act. He had also no grievance in this case even after the fact was informed through a pre-assessment notice.....". It would be seen that the preparation of "falooda" has not been taken into consideration at all by the first appellate authority and what is weighed by it is the fact that the assesses was paying tax on ice cakes, falooda, etc., for the previous years treating it as a milk product. In addition, the said authority also has observed that even for the year in question, the assessee carried the view that "falooda" is also a milk product not covered by entry 57 of Schedule I to the Act. 7. The Kerala Sales Tax Appellate Tribunal, Additional Bench, Kozhikode, by the order dated November 15, 1994, has recorded a conclusion that "falooda" would not be a milk product. The Tribunal has observed that the irresistible conclusion would be that "falooda" is not a milk product. The Tribunal has also observed that the article may have to be treated as a multi-point item taxable at the general rate prevalent at the relevant time and accordingly directed the assessing authority to re-compute the liability according to law. 8. We have heard the learned counsel for the assessee and also the learned Government Pleader mainly in regard to the manner in which "falooda" is prepared. 8. We have heard the learned counsel for the assessee and also the learned Government Pleader mainly in regard to the manner in which "falooda" is prepared. If certain ingredients are taken into account, such as vermicelli, sago, rice and sugar, it would be found that the first two items cannot be understood as food unless they undergo a process of heating and boiling. Secondly, "falooda" contains dry fruits like cashewnuts, kismis, tutti- fruiti and khus-khus and also fresh fruits like grapes, bananas, pineapple, mango, etc., as and when available. The process further shows that there is a cooking process involved in the preparation of the final product. In common parlance, it is also understood to be a prepared liquid for drinking. In other words, it also means, a "beverage". 9. The fact that the assessee treated it as a milk product would not be an obstacle. "Milk product" will have to be understood in terms of the language of entry 122 in regard thereto. The entry is of an inclusive character to include milk powder, baby food, ghee, cheese and butter with the exception of curd and buttermilk in regard thereto. It is obvious that this inclusive entry would have to be understood in sharing the characteristic of inclusive instances. Obviously therefore "falooda" would not be understood as a "milk product". The Tribunal has also held that it is not a "milk product" as such. 10. It is not possible to agree with the observations of the Tribunal that "falooda" will have to be treated as a multi-point item taxable at the general rate prevalent at the relevant time. Falooda is a cooked food. 11. Naturally, therefore, the impugned order dated November 15, 1994 in T.A. No. 88 of 1994 of the Kerala Sales Tax Appellate Tribunal, Additional Bench, Kozhikode, will get modified to that extent directing the assessing authority to consider the tax liability with regard to "falooda" on the basis that it is a cooked food. The tax revision case gets disposed of accordingly. Petition allowed.