TaxTMI 
TaxTMI 
2015 (12) TMI 1337
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....eera), Asafoetida (Hing) etc.. It was noticed by the Assessing Officer (for short, 'AO') that the respondent was paying tax @4% on the spices/ Kirana items sold singly and tax @16% on Masalas which were a mixure of two or more spices. However, the AO was of the view that in so far as Asafoetida (Hing) is concerned, the tax of 4% only was being paid but the AO was of the view that it falls in the category of Packed Masala and once it is a Packed Masala, it falls in the entry where levy of tax is @16%. The AO, being not satisfied with the claim of the respondent-assessee, issued a show cause notice, inter-alia, stating that as to why the Asafoetida (Hing) be not taxed as that of Packed Masala and as to why rate of 16% be not applied. The respondent-assessee furnished detailed explanation, inter-alia, contending that they have sold Asafoetida (Hing) and the tax only @4% is applicable on the sale of Asafoetida (Hing) and that it does not fall in the category of Packed Masala. It was further contended that Asafoetida (Hing) is obtained from roots and to reduce the pungent in the Asafoetida (Hing) , only gum arabic and wheat flour are added and merely because these two items are ....
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....sessee has clearly admitted about mixing of two items. She further contended that once the assessee itself claims that two items were mixed and once the mixing takes place, then it no more remains a single item of Asafoetida (Hing). She relied upon the judgments rendered in the case of Commercial Taxes Officer Vs. Jalani Enterprises : (2011) 4 SCC 386 and A.P. Products Vs. State of Andhra Pradesh and ors.: (2007) 6 SCC 365 and thus contended that the issue requires consideration. She also contended that penalty is also leviable and was rightly levied by the AO and upheld by the DC(A) but wrongly deleted by the Tax Board. 6. Per-contra, counsel for the respondent contended that order of the Tax Board is just and proper as it has taken into consideration the plain and simple meaning of Asafoetida (Hing) which clearly falls within the definition of Kirana Items and not Packed Masala. He further contended that since Asafoetida (Hing), as obtained from roots, has severe pungent nature and therefore, only to reduce the pungent, two items are added which does not change nature of Asafoetida (Hing) in particular. He further contended that the nature of Asafoetida (Hing) does not change at....
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....d and sold in packed conditions which was clarified by a notification issued by the Dy. Secretary, Finance Department (Tax Division), Government of Rajasthan vide notification dt.12/11/2001 to mean Packed Masala as being:- "I am to state that 'Packed Masala' used in entry No.184 means, a masala where two or more ingredients are mixed and sold in packed conditions. Spices sold singly will continue to be taxed as per entry No.82." 10. Asafoetida (Hing) as the nature of it remains is that it is obtained from the roots of the ferual plants and is not fit for human consumption due to its strong pungence and has to be mixed with additives like Gum Arabic and Wheat Flour. The process of preparing compounded Asafoetida has elaborately been explained by the CEGAT, West Zonal Bench, Mumbai in the case of Lalji Godhu & Co. Vs. Commissioner, Central Excise, Mumbai: 2001 (132) ELT 287 and the same is as under:- "The gum Arabic and wheat flour are blended in the sigma mixers. Filtered water mixed asafoetida is then poured slowly into the mixer over the gum and wheat flour. This gets the product ready. Further, the resultant product given a heat treatment by suction in pipes through ....
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....ely. It is settled law that when one particular item is covered by one specified entry, then the Revenue is not permitted to travel to the residuary entry. If from the records it is established that the product in question could be brought under a specific entry then there is no reason to take resort to the residuary entry. There is no doubt that Jaljira is a drink. The contents of Jaljira is put into water and taken as digestive drink but when we look into the manner and method of preparation of the product Jaljira, we find that it is a mixture of different spices after grinding and mixing. Therefore, it is nothing but a Masala packed into packets of different nature/quantity and sold to the consumers. It would, therefore, for all practical purposes would come within the Entry No. 184 and it cannot be said that it would come under the residuary entry as held by the High Court." 12. On perusal of the above findings of the Hon'ble Apex Court, it clearly shows that Jaljira is made with grinding and mixing of different spices so that a new commercial commodity known by a different name comes up whereas in the case of preparing Asafoetida (Hing), spices are not mixed and only Gum ....
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.... dt. 03/02/2006 set aside the additional levy of tax relying on the clarification dt.12/11/2001 and 26/11/2001 issued by the State Government and the Commissioner, Commercial Taxes Officer, Rajasthan. The Revenue assailed the same by filing two petitions before this Court and this Court in SB Sales Tax Revision Petition No.187/2008 and 216/2008 vide judgment dt.21/02/2008 dismissed the revision petitions filed by the department (Revenue) and it is admitted fact that the judgment has attained finality. Once the similar issue has come up before this Court and this Court has already expressed its opinion on an issue on the similar identical facts, in my view, no contrary view can be expressed unless there is change in circumstances or facts and in the instant case, admittedly the facts remains the same and once the Revenue accepted the judgment of this Court in between the same parties and on the identical issue, it has to be followed. The Hon'ble Apex Court in the case of Municipal Corporation of City of Thane Vs. Vidyut Metallics Ltd. (supra) has held as under:- "In the present case, in earlier litigation, the court considered the evidence of Mr. Deb, quality control manager, ....