1995 (1) TMI 350

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....rrect in holding that the product "Paloma lime tea mix" (packed in a sealed container of 100 gms. net weight) sold by the present opponent under invoice No. Bom-1174 dated January 14, 1980, for Rs. 31.10 is not covered by the scope of entry C-33(2) but is covered by the residuary entry E-22? (2) Whether the article would be covered under entry E-6? 2. On January 14, 1980, the assessee, M/s. Food Specialities Limited, filed an application before the Commissioner of Sales Tax, Maharashtra State, Bombay under section 52 of the Bombay Sales Tax Act, 1959 ("the Act") seeking determination of the correct rate of tax payable under the Act on the sales of its product "Paloma lime tea mix" (packed in sealed container of 100 gms. net weight). It was ....

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....3. As the determination of the controversy would depend on the true and proper interpretation of entry 33 of Schedule "C", it would be expedient to set out the same. Entry 33, as it stood at the material time, reads: Sr. No. Description of goods Rate of sales tax in paise in the rupee. Rate of purchase tax in paise in the rupee. Period of operation. 1 2 3 4 5 33 (1) Soda water Ten paise in the rupee. Ten paise in the rupee. 15-4-1974 to 30-6-1981       (2) Aerated waters (other than soda water) and non-alco holic beverages (including fruit juices, squashes, syrups and cordials) when sold in sealed, capsuled or corked bottles, jars, tins, drums or other containers Twelve pa....

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....under that entry. The only controversy is whether it would fall under entry 33(2) of Schedule C. If it does not, the agreed position is that it would fall under entry 22 of Schedule E, as it is not covered by any entry of any Schedule including any entry of Schedule E, except entry 22 which is the residuary entry. 4. We have, therefore, concentrated our attention only on item (2) of entry 33 of Schedule C to ascertain whether the product of the assessee "Paloma lime tea mix" would fall thereunder. The contention of the Revenue is that it is a beverage and hence it would fall under item (2) of entry 33. The assessee vehemently opposes the same and submits that it is not a beverage but a powder from which beverage can be prepared, which is....

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.... water (1 litre/ 5 tumblers) and then stirred and served by adding ice cubes. It is evident from the above description that it is not a beverage but a powder from which non- alcoholic beverage can be prepared. In that view of the matter, it is difficult to hold that the product "Paloma lime tea mix" sold in powder form by the assessee in packs of 100 gms. net weight falls under entry 33(2) of Schedule "C" to the Act. 6. The above conclusion of ours also gets support from the fact that on and from May 1, 1982, the Legislature itself has specifically included in item 47 of Schedule C, Part II to the Act [which replaced item 33(2) of the old Schedule] to include "soft drink powders, tablets and crystals from which non-alcoholic beverages ar....