Judgment Gopal Krishan Vyas, J.-The present sales-tax revision petition under Section 86 of the Rajasthan Sales Tax Act, 1994 precisely raises the question of rate of tax at which ice-cream may be exigible treating the same as cooked food or deshi mithai. 2. While remanding the matter to the Assessing Authority by its order dated 29.05.1991, the Tax Board opined that the Assessing Authority should first make enquiry as to whether manufacture of ice-cream includes cooking process and whether ice-cream is not sold in packed card board and sealed containers. In pursuance of the remand order, the Assessing Authority passed fresh assessment order dated 17.08.1993 holding that the ice-cream cannot be included within the term cooked-food and, therefore, the same was exigible to tax @ 8 per cent. It further held that ice-cream being sold in cardboard sealed containers fell under entry 49 of the Notification dated 08.03.1969 and was thus exigible to tax at the rate of 10 per cent. In terms of the finding, the assessee dealer was asked to meet the fresh demand raised. The assessee, however, went in appeal before the Deputy Commissioner (Appeals) contending that ice-cream falls under the category deshi-mithai and, therefore, was liable to tax under the Notification dated 26.04.1972 at the rate of 5 per cent. The appellate Authority held that ice-cream is deshi-mithai and is thus exigible to tax at the rate of 5 per cent under Notification SO-6 dated 26.04.1972 and, therefore, by Judgment dated 18.07.1994 set-aside the dealers liability to tax, penalty and interest beyond 5 per cent liability to tax. The Department proceeded to challenge its validity before the Tax Board but the Tax Board concurred with the finding of the Deputy Commissioner (Appeals) and maintained the Judgment of the lower appellate authority by Judgment dated 17.03.1998. Hence, this revision petition under Section 86 of the Rajasthan Sales Tax Act, 1994 raising the question of law whether ice-cream is liable to tax treating it deshi-mithai, or cooked food or under entry 49 of the category of all kinds of eatables. 3. I have heard learned Counsel for the parties and perused the various orders and other material on record. 4. 3. I have heard learned Counsel for the parties and perused the various orders and other material on record. 4. Before proceeding in the matter for the adjudication of the precise controversy, the primary premises as to the nature of the commodity which attract its inclusion or non-inclusion in a particular class or category may be taken note of . By its very nature, ice-cream is an eatable and a food item as opposed to various kinds of drinks and beverages. Human consumption of food is basically for sustenance of life and maintenance of growth. Though not exactly classified or categorised on the basis of their nutritive values, all kinds of foods are recognised and known mainly on their characteristic nutritional potential. This is how they come to be taken in as substantive or subsidiary meal. Indisputably the commodity ice-cream is not a substantive food and its consumption is mainly governed as side-dish, dessert, snack or refreshment item and that is, perhaps, due to its additive nutritional value and that is how it has gained commercial potential. 5. Canvassing his case, Counsel for the Department relied upon Judgment s in the cases of Commissioner of Sales Tax vs. Pure Ice Cream Company, reported in STC Vol. 36, pg. 18. Commissioner of Sales Tax vs. Mangharam & Company, reported in 1976 STC Vol. 37. p. 599 Commissioner of Sales Tax, M.P. vs. Indore Coffee House, reported in 1981 STC Vol. 47, p.375 6. In the case of Commissioner of Sales Tax vs. Pure Ice Cream Company (Supra), the learned Division Bench of the Bombay High Court was to answer the reference raised with regard to the claim of the assessee for exemption under entry No. 14 of Schedule A to the Bombay Sales Tax Act, 1959. The Sales Tax Officer disallowed the claim of the dealer holding that ice-cream was not cooked food but was a sweet and was, therefore, taxable under entry No. 31 of Schedule C to the said Act. In Commissioner of Sales Tax vs. Mangharam & Company (Supra), again the controversy was with regard to claim of exemption under Entry 14 of Schedule A to the Bombay Sales Tax Act, 1959. In Commissioner of Sales Tax vs. Mangharam & Company (Supra), again the controversy was with regard to claim of exemption under Entry 14 of Schedule A to the Bombay Sales Tax Act, 1959. In Commissioner of Sales Tax, M.P. vs. Indore Coffee House (Supra), the Board of Revenue referred question of law for the opinion of the Madhya Pradesh High Court that whether, under the facts and circumstances of the case, ice-cream is cooked food and will be covered by item No. 8 of Part I of Schedule II appended to the M.P. General Sales Tax Act, 1958? Answering the reference in the affirmative, the Division Bench concurred with the view expressed earlier by the Division Bench of Madhya Pradesh High Court in the case of Commissioner of Sales Tax vs. Regal Dairy, Mhow, 1981 (47) STC 374. 7. In the present revision petitions under Section 86 of the Act of 1994, the controversy need not be stretched beyond the narrow compass of exigibility to tax under a particular entry in the notification issued by the State Government. The generic interpretation of class of meal or food with relation to commodity ice-cream may not be as relevant when the commodity has been specifically entered in a separate item under the notification issued by the State Government in this behalf . In this view of the matter, the Judgment s referred to above as cited by learned Counsel for the petitioner do not have a bearing on the facts and circumstances of the present case. Neither the question of exemption nor an enquiry as to classification or categorisation of the commodity ice-cream has any nexus with either the contentions advanced by the Department or the claim of the assessee dealer and, therefore, there is no occasion to enlarge the scope of the controversy in involved in the case on hand. 8. When we refer to cooked food, the application of the term may be in wider sense or may be in stricter sense; but, interpretatively we understand that the food has undergone some process of preparation and cooking enabling it to be fit for human consumption. The cooking in common parlance necessarily includes application of heat and, therefore, what does not include application of heat may not be called a cooked food. The cooking in common parlance necessarily includes application of heat and, therefore, what does not include application of heat may not be called a cooked food. But, this is not the final test because in almost all kinds of prepared eatables, the process of cooking would somehow be involved and yet the determination of class or category of a particular commodity as food item may not be based purely on the theory of its having undergone process of cooking. Aside from the generic application of the term certain other aspects of the matter must be taken into consideration for such determination. All substantive meals having undergone the process of cooking will be cooked food; but, subsidiary meal item or food item, or say prepared eatables may not be necessarily cooked food. Further, the commercial categorisation of food items depends upon consideration of various factors far besides the process of preparation. The fairest test is the nature of marketability i.e., what are the considerations for the sale of such eatable commodity. 9. It may be noted that following the decision of the Tax Board, the Department decided rectification application moved by the assessee dealer under Section 17 of the Act of 1994 holding that ice-cream is not exigible to tax under Entry 49 of the Notification dated 08.03.1969 at the rate of 10 per cent. Learned Counsel for the respondent dealer has, therefore, argued that once the department itself resolved the controversy as to exigibility to tax it is not permitted to take a different view for the subsequent assessment years in relation to the same assessee. It is submitted that the first appellate authority relied upon the Judgment of the Tax Board rendered in the case of A.C.T.O., Jaipur vs. Hargundas Deepchand, 1979 (26) RRD 276 for arriving at the finding and the said reported Judgment was neither subjected to revision nor challenged in appeal and as such it attained finality. Learned Counsel for the respondent contended that the Department is not at lawful liberty to accept the proposition in one case and then challenge its correctness in another. He relied upon Commissioner of Income Tax vs. Shivsagar Estate, 2002 257 ITR 59. 10. Learned Counsel for the respondent contended that the Department is not at lawful liberty to accept the proposition in one case and then challenge its correctness in another. He relied upon Commissioner of Income Tax vs. Shivsagar Estate, 2002 257 ITR 59. 10. Notification F.5 (16) FDCT/69-2 dated 08.03.1969, under entry 49, mentions “All kinds of eatables and non-alcoholic potable liquids such as biscuits, confectionery, fruits, syrups, aerated waters, distilled juices (“ark”), jams (Chatni, Murabbas), fruit juices, essences, gulkand etc., packed in tins or bottles or plastic containers or sealed packings of any kind.” Notification F.5 (24) FDCT/72-8 dated 26.04.1972, under Entry 2, mentions “Desi sweetmeats and namkins”. However, both these notifications only specify the rate of tax at which articles under a particular entry shall be exigible. The entries under these notifications are generic and far from precise categorisation. However, there is Notification No. F.5 (24) FDCT/72-7 dated 26.04.1972 which notifies that. “(i) Halwais, and (ii) Keepers of hotels, restaurants, refreshment rooms and other eating establishments, tea stalls and the like, shall pay tax on their taxable turnover of desi sweetmeats and namkins, meals, cooked foods, non-alcoholic cold and hot drinks and beverages, snacks and ice-creams, hereinafter referred to as the said goods, at the following scale, namely - “(i) Those whose annual gross turnover does not exceed Rs. 30,000/- (ii) Those whose annual gross turnover exceeds Rs. 30,000/-for every completed five thousand rupees of taxable turnover in respect of the said goods on the condition that the dealer, who chooses to collect tax from the buyer in addition to the sale price, in accordance with Rule 44, shall also pay the amount of tax, he has collected on the sale price, in excess of that payable by him according to the above scale. Rs. 250/- Subsequently, Notification No. F.4 (5) FDCR. IV/88-13 dated 08.03.1988 was issued which, under its entry 48, mentions “Deshi Sweetmeats and Namkins including Kulfi and Ice-cream”. This notification was issued in supersession of all previous notifications issued in this behalf , specifically referring that it is expedient in the public interest to do so, and fixed 6% rate of tax against items mentioned under entry 48. 11. IV/88-13 dated 08.03.1988 was issued which, under its entry 48, mentions “Deshi Sweetmeats and Namkins including Kulfi and Ice-cream”. This notification was issued in supersession of all previous notifications issued in this behalf , specifically referring that it is expedient in the public interest to do so, and fixed 6% rate of tax against items mentioned under entry 48. 11. The reference to the aforesaid notifications, thus manifestly shows that the legislature has intended to class ice-cream with deshi-sweetmeat and namkin category and that appears to be for the reason that ice-cream is more akin to deshi-sweetmeat not only on account of the nature of the products but also in view of the nature of sale of the products. When there is specific entry in the Notification dated 08.03.1988 there is hardly any question left to determine the nature of the commodity itself . In this view of the matter, so long as Notification dated 08.03.1988 holds good in law, any debate on the question whether ice-cream shall be exigible to tax as deshi mithai or not is irrelevant and unwarranted. Since, for the relevant assessment years, the learned Courts below have given finding that ice-cream is exigible to tax at the rate specified for deshi mithai which is in consonance with the legislative intent. I find no reason do differ with the view expressed by the Courts below. 12. To conclude, I hold that commodity ice-cream is a commercial food-grade item akin to deshi mithai and milk-based sweetmeats. Whether it is a cooked food or not has not much relevance being only a question of academic debate and once an item finds specific mention under a particular entry in the Government notification the judicial relevance for adjudication of such questions is not attracted. 13. In the result, the revision petition is dismissed. There shall, however, be no order as to costs.