2005 (2) TMI 844

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.... III attracts a levy of tax at the rate of 8%. While according to the petitioner assessee. Soya Nugget, manufactured by it is an item of dry vegetable and therefore would be appropriately classifiable under Item 1(b) of Schedule II, the respondents contend that the said item manufactured by the petitioner assessee would fall under the residuary items covered by Serial No. 2 of Schedule III to the Act. 2. In the writ petition filed, averments have been made by the writ petitioner to show the actual process by which soya nuggets are manufactured. According to the petitioner Soya Nuggets (Bari) is prepared in its SSI Unit with ingredients like DE-oil, cake, suji, rice, soda, etc. and the eventual product does riot lose its character as a dry ....

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....derstood to be an item of dry vegetable by adopting the common parlance test. It is on the aforesaid basis that Sri Sahewalla contends the contrary view taken by the department to be not correct and accordingly he has submitted that an appropriate direction be issued by this Court to assess the production question under Item 1(b) of Schedule II to the Act. 3. The submissions advanced on behalf of the petitioner assessee has been controverted by Sri J. Patowari, learned counsel assisting Sri K.N. Choudhury, learned Addl. Advocate General, for the State. Sri Patowari, by placing reliance on a published text, has submitted that a vegetable has to undergo three separate processes to reach and attain the stage of a dry vegetable. First of all, ....

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....e product cannot be understood to have the perception that in dealing with Soya Nuggets, they are dealing with an item of dry vegetable. Sri Patowari, therefore, has contended that the common parlance test if adopted in the present case would not bring Soya Nuggets within the ambit of Item 1(b) of Schedule II to the Act. 4. The rival submissions advanced on behalf of the parties have been duly considered. The principles for determination of classification of a particular product for purposes of levy of tax need hardly detain the Court. If a particular item is defined by the statute in specific terms there will be little problem. In preference to the common parlance or the trade test or even the common sense approach, the meaning as ascribe....

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....ion must be construed as understood in common parlance and it must be given its popular sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it". Proceeding further the Apex Court took the view that ginger is a vegetable grown in a kitchen garden or in a farm and is used for the table and though it is not a principal item of the meal, it certainly forms a part of the meal as a subsidiary item. The Supreme Court further took the view that ginger is ordinarily sold by the vegetable vendor as a vegetable and is purchased by the house-wife as a vegetable item. Therefore, ginger was held to be more appropriately classifiable as a vegetable item. 5. Applying the ....