TaxTMI 
TaxTMI 
2016 (2) TMI 815
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....product classified under Clause (d) of Sub-section (1) of Section 6 of the Act is mutually exclusive of the products classified under Clause (a) of Sub-section (1) of Section 6. 2. The main contention urged by the appellant before the authority was to the effect that the product had been classified as a 'Fruit Juice Based Drink' under the Central Excise Tariff Act as well as under the Fruit Processing Order. The appellant had made available several technical opinions and certificates issued by various authorities to state that the drink was not 'carbonated water' and was a 'Fruit Juice Based Drink' containing fruit juice to an extent of more than 10% and that it had been assessed as a 'Fruit Juice Based Drink' till the Finance Act of 2007 amended Section 6(1)(a) of the Act by specifying that aerated branded soft drinks excluding soda would be liable to tax @ 20% at all points of sale within the State. The list of goods taxable at the rate of 12.5% notified by SRO 82/2006 was also amended by SRO 119 of 2008 and the entry 'Fruit Juice Based Drink' was deleted and all the H.S.N codes were removed. 3.The authority considered the contentions rai....
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....tatute are to be strictly construed and the burden of proof lay heavily on the revenue to prove that the product, which had been classified and taxed as a 'Fruit Juice Based Drink', was now liable to tax as 'aerated branded soft drink' at higher rate. The learned Senior Counsel relies on the decisions of the Hon'ble Supreme Court of India in Hindustan Ferodo v. Union of India (1997 (89) ELT 16), Pudumjee Pulp & Papers Mills v. Union of India (1951 (51) ELT 235), Advani-Oerlikon Ltd. and another v. Union of India and others [1981 ELT 432 (Bom.)] Commissioner of Central Excise v. Godrej Hershey Ltd.(2015 (324) E.L.T.246 (SC). 5.Learned Special Government Pleader, on the other hand, would contend that with the amendment to the KVAT Act, the only question to be considered is whether the product is an aerated branded soft drink. It is contended that even on a preliminary examination of the contentions raised by the appellant, it is clear that the appellant failed in proving before the committee that the product in question was not an 'aerated branded soft drink' which was specifically included as taxable at 20% at all points of sale within the State. It is c....
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....entry in this List or in any of the Schedules. (1) Water not containing added sugar or other sweetening matter (a) Mineral water 2201.10.10 (b) Aerated water 2201.10.20 (2) Water containing added sugar or other sweetening matter (a) Aerated water 2202.10.10 (b) Lemonade 2202.10.20 (c) Other 2202.10.90 (3) Fruit juices and vegetable juices, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter. 2009 (4) Fruit pulp or fruit juice based drinks 2202.90.20 (5)Soft drink concentrates (a) Sharbat 2106.90.11 (b) Other 2106.90.19 (6) Beverages containing milk 2202.90.30" 8. It is pertinent to note that Section 6(1)(a), as it stood prior to the amendment brought about by the Finance Act of 2006, did not contain any reference to aerated soft drinks. By the Finance Act of 2007, Section 6(1)(a) was amended specifying aerated drinks including mineral water, packaged drinking water and branded soft drinks excluding soda with the six figure HSN code of 2202.10 as being taxable @ 20%. This entry therefore contained fruit pulp or fruit juice based drink with HSN code 2202.90.20 as sub entry 4. It was in the ab....
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....liable to tax at a higher rate. The findings of the authorities under the fruit, labelling and excise regime to the effect that the product is a 'Fruit Juice Based Drink', would be completely irrelevant in case the product falls within the ambit of the Entry "aerated branded soft drink". 12. The manner in which an entry should be understood in a case where HSN code is not incorporated in the statute is indicated in the Rules of Interpretation as contained in the Schedule to the KVAT Act. The relevant portion of this provision reads thus:- ''The commodities in the schedules are allotted with Code Numbers, which are developed by the International Customs Organization as Harmonized System of Nomenclature (HSN) and adopted by the Customs Tariff Act, 1975. However, there are certain entries in the schedules for which HSN Numbers are not given. Those commodities which are given with HSN Numbers should be given the same meaning as given in the Customs Tariff Act, 1975. Those commodities which are not given with HSN Number should be interpreted, as the case may be, in common parlance or commercial parlance. While interpreting a commodity, if any inconsistency is observed....