2012 (10) TMI 337 - HC - VAT and Sales Tax

Court rules 'Slice' drink not a 'food article' under tax law, directs tax under residuary entry.

The court held that the fruit pulp-based drink 'Slice' cannot be classified as a 'food article' under Entry 47 of the First Schedule of the Delhi Sales ... Fruit pulp based drink known as “Slice” - common parlance test - whether classifiable as a “food article” under Entry 47 of the First Schedule OR under the residuary entry under Section 4(1)(d) of the Delhi Sales Tax Act, 1975 - Held that:- The pre-dominant contents of the mango pulp drink, in this case, is water (70%). The mango pulp content is 17%. This product does not claim to be a fruit juice and, therefore, the Revenue cannot urge that it has even a minimum modicum of nutritive properties. Arguably, if the product was entirely milk based, the considerations might have been different - However, the mango pulp based drink, in this case, is at best an instant energy giver and in all cases a thirst quencher & by no stretch of imagination can it be called a “food article” at least not within the contemplation of the statute, by an application of the common parlance test. Thus it is held that the impugned order classifying the concerned product, i.e., mango pulp based drink, is not classifiable in Entry 47 of First Schedule and would be taxed in residuary entry, at the rate mentioned in Section 4(1) (d) of the Delhi Sales Tax Act, 1975. Decision in THE STATE OF BOMBAY Versus VIRKUMAR GULABCHAND SHAH [1952 (5) TMI 9 - SUPREME COURT] followed. Issues Involved:1. Classification of 'Slice' as a 'food article' under Entry 47 of the First Schedule.2. Applicability of the common parlance test.3. Relevance of definitions under the Prevention of Food Adulteration Act, 1954.4. Interpretation of fiscal statutes and specific entries in the Delhi Sales Tax Act, 1975.Issue-wise Detailed Analysis:1. Classification of 'Slice' as a 'food article' under Entry 47 of the First Schedule:The primary issue was whether the fruit pulp-based drink 'Slice' should be classified as a 'food article' under Entry 47 of the First Schedule of the Delhi Sales Tax Act, 1975, and thus taxable at 12%, or if it should fall under the residuary entry and be taxed at 8%. The Tribunal had earlier concluded that 'Slice' is a 'food article' and taxable at 12%.2. Applicability of the common parlance test:The appellant contended that the common parlance test should be applied to determine the classification. The counsel argued that 'food' connotes an article that primarily nourishes the human body. The court referred to various judgments, including Union of India v. Kalyani Breweries Ltd., Hindustan Aluminium Corporation v. State of U.P., and CIT v. Taj Mahal Hotel, which supported the application of the common parlance test.3. Relevance of definitions under the Prevention of Food Adulteration Act, 1954:The appellant argued against the Tribunal's reliance on the definition of 'food article' under the Prevention of Food Adulteration Act, 1954, stating that the objectives of this Act differ from those of the Delhi Sales Tax Act, 1975. The Prevention of Food Adulteration Act aims to ensure consumer safety and impose minimum standards, whereas the Delhi Sales Tax Act is a fiscal statute with different objectives. The court agreed with this argument, emphasizing that importing definitions from one statute to another with different purposes is not a sound practice.4. Interpretation of fiscal statutes and specific entries in the Delhi Sales Tax Act, 1975:The court examined various entries related to food and drinks in the Schedules of the Delhi Sales Tax Act, 1975. It noted that there was no specific entry for fruit-based drinks or juices, although there were entries for liquor and aerated drinks. The court referred to the Supreme Court's observations in Virkumar Gulabchand Shah and the common parlance test to determine whether 'Slice' could be classified as a 'food article.'The court concluded that the predominant content of 'Slice' is water (70%), with mango pulp constituting only 17%. The product does not claim to be a fruit juice and lacks significant nutritive properties. Therefore, it cannot be classified as a 'food article' under Entry 47 of the First Schedule. Instead, it should be taxed under the residuary entry at the rate mentioned in Section 4(1)(d) of the Delhi Sales Tax Act, 1975.Conclusion:The court held that the impugned order classifying 'Slice' as a 'food article' was incorrect. The product should be taxed under the residuary entry. The respondent authorities were directed to make necessary consequential orders or refunds within eight weeks. The appeal was allowed with no order as to costs.