2008 (4) TMI 694

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....te of nine per cent treating it as kirana goods. The assessee, aggrieved by the same, preferred an appeal and the appellate authority by its order dated August 17, 1994 dismissed the same and confirmed the order of the assessing officer. The assessee thereafter filed revision before the Commercial Taxes Tribunal, which by order dated June 6, 1995 upset the orders of the assessing officer and the appellate authority and held that maize powder is nothing but maize starch and hence taxable at the rate of four per cent and not at the rate of nine per cent as kirana goods. Accordingly, the Tribunal allowed the revision application and directed the assessing officer to issue fresh assessment order. The Commissioner of Commercial Taxes filed appl....

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....the rate of nine per cent and same has been described as follows: "75. Kirana goods Explanation.-Kirana goods means-(1) and (2) . . . 3.. All kinds of starch . . ." There is no controversy that if the maize starch comes within the category of cereal, tax at the rate of four per cent is leviable and if it comes within the definition of "kirana goods", tax at the rate of nine per cent is to be charged. In my opinion, the first thing needs to be decided is as to whether maize starch is maize powder or, in other words, maize powder and maize starch are one and the same thing. The Encyclopaedia Britannica while dealing with the utilization of maize narrates that it is utilized in three principal ways as a feed for livestock, as a human food....

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....lso used in laundry. Therefore, one may say that maize starch is cereal and therefore tax at the rate of four per cent is leviable. In my opinion, an item would not become a cereal and shall be covered under item No. 12 of the notification only on the ground that it can be used as cereal. As observed earlier, maize starch and maize powder is different and distinct thing. Its mere use as one of the ingredients in a food item will not make the same cereal. It is well-settled that in a fiscal statute if a particular product is specified in particular entry, the fact that it may indirectly come under any other entry, but this will not permit its consideration under the latter entry. Commercially speaking, maize powder and maize starch are diff....