2016 (2) TMI 815 - HC - VAT and Sales Tax

'Appy Fizz' Tax Classification Upheld with Emphasis on Burden of Proof and Statutory Amendments

M/s. PARLE AGRO PVT LTD Versus COMMISSIONER COMMERCIAL TAXES, TRIVANDRUM

The court upheld the authority's decision that 'Appy Fizz' is classified as an aerated branded soft drink under Section 6(1)(a) of the Kerala Value Added ... Rate of VAT @14.5% or 20% - Classification of Appy Fizz as 'Fruit Juice Based Drink', as similar other products not mentioned or aerated branded soft drinks excluding soda - Held that:- Going by common parlance that the product is a soft drink is beyond dispute. Aeration being the process of adding a gas especially carbon dioxide to a liquid under pressure or “charging with air or carbon dioxide or other gas”. It is clear from the material produced by the assessee itself that the product is an aerated drink. That it is branded is also beyond dispute. The question whether the product would be a 'Fruit Juice Based Drink' under the Central Excise and Salt Act would be wholly irrelevant in view of the fact that it comes squarely within the specific entry, aerated branded soft drink as contained in Section 6 (1)(a) which has been specifically made liable to tax at the rate of 20%. A reading of Entry 71 of the notified list as amended would go to show that aerated water and soda water are the aerated products included in the entry. Sub entries 2 to 4 refer to soft drinks which are not aerated or branded and to health drinks. This is clearly because aerated branded soft drinks have already been included in the tax net with a higher rate of tax. The product answers to the description of aerated branded soft drink which would fall specifically within the confines of Section 6(1)(a) - Decided against the assessee. Issues Involved:1. Classification of the product 'Appy Fizz' under the Kerala Value Added Tax Act.2. Applicability of the Harmonized System of Nomenclature (HSN) codes.3. Interpretation of entries in the tax schedules.4. Relevance of previous classifications under other statutes (Central Excise Tariff Act, Fruit Processing Order).5. Burden of proof for tax classification.6. Impact of amendments to the KVAT Act and related notifications.Issue-wise Detailed Analysis:1. Classification of the product 'Appy Fizz' under the Kerala Value Added Tax Act:The appellant, a manufacturer of 'Appy Fizz,' sought clarification on whether the product, classified as a 'Fruit Juice Based Drink,' should be taxed under Entry No.71(5) at 14.5% or as an aerated branded soft drink at 20%. The authority determined that the product is an aerated branded soft drink, falling under Section 6(1)(a) of the Act, thus attracting a higher tax rate. The appellant argued that the product was previously classified and taxed as a 'Fruit Juice Based Drink' and no change in its nature warranted reclassification.2. Applicability of the Harmonized System of Nomenclature (HSN) codes:The appellant contended that 'Appy Fizz' was classified under HSN Code No.2202.90.20 as a 'Fruit Juice Based Drink' under the Excise Tariff Act. However, the court noted that HSN codes are not mentioned in the KVAT Act entries, and the classification should be based on common or commercial parlance. The product's classification under other statutes was deemed irrelevant for KVAT purposes.3. Interpretation of entries in the tax schedules:The court examined the interpretation rules in the KVAT Act, which state that commodities without HSN numbers should be interpreted in common or commercial parlance. The product, being a soft drink, was found to be aerated and branded, thus fitting the description of an aerated branded soft drink taxable at 20%.4. Relevance of previous classifications under other statutes:The appellant presented technical opinions and certifications to support the classification of 'Appy Fizz' as a 'Fruit Juice Based Drink.' However, the court held that these classifications under the Central Excise Tariff Act and other statutes were irrelevant for determining tax liability under the KVAT Act, which specifically includes aerated branded soft drinks under Section 6(1)(a).5. Burden of proof for tax classification:The appellant argued that the burden of proof lay with the revenue to justify the reclassification of the product. The court, however, found that the product's nature as an aerated branded soft drink was evident from the material produced by the appellant itself, and thus, the authority's classification was justified.6. Impact of amendments to the KVAT Act and related notifications:The court noted that the Finance Act of 2007 and subsequent amendments to the KVAT Act and SRO 119 of 2008 had significantly altered the tax schedule. The entry 'Fruit Juice Based Drink' was deleted, and aerated branded soft drinks were specifically included with a higher tax rate. The court concluded that the product could not be classified under the residual entry 71(5) due to its specific inclusion under Section 6(1)(a).Conclusion:The court upheld the authority's decision, confirming that 'Appy Fizz' is an aerated branded soft drink taxable at 20% under Section 6(1)(a) of the KVAT Act. The appeal was dismissed, and the authority's order was affirmed.