TaxTMI 
TaxTMI 
2016 (5) TMI 522
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....et aside. The products of the appellant are classified under schedule entry C-107 (11)(g) during the relevant period i.e. from 15.01.2011 to 13.03.2013 liable for 5% of VAT Tax. The VAT appeal bearing No.932 of 2014 is hereby allowed and the D.D.Q. order dated 18.07.2014 of the Commissioner of Sales Tax, Maharashtra State, Mumbai is set aside. The products of the appellant are classified under schedule entry C-107, (11) (g) during the relevant period i.e. from 15.01.2011 to 13.03.2013 liable for 5% of VAT Tax." 3. M/s. Neulife Nutrition System, the Respondent-Dealer in Appeal No.2 of 2016, had filed an Application under section 56 of the MVAT Act before the Commissioner of Sales Tax to decide the classification of its products and the rate of tax applicable for the relevant period i.e. 15-01- 2011 to 31-03-2013. It had sought the rates of tax for the following products: "(1) 100% Whey Gold (French Vanilla 2 Lbs and Mocha Capuccino 1 Lbs) (2) Platinum Hydrowhey (Turbo Chocolate 3.5 Lbs) (3) Serious Mass (Straw 12 Lbs) (4) PRO Complex GAINER (Choc 10.16 Lbs and Straw 10.16 Lbs) (5) True Mass (Chocolate 5 Lbs) (6) Syntha 6 (Chocolate 5 Lbs)" M/s. Neulife Nutrit....
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....ion of Schedule Entry C-107 (11)(g) of MVAT Act, 2002 and upon the application of common parlance test in its true perspective, was the Tribunal justified in holding that the impugned products will fall within the purview of Schedule Entry C-107(11)(g) during the relevant period from 15.01.2011 to 31.03.2013 and hence taxable @ 5% of VAT and not covered by the Schedule Entry E-1 of MVAT Act, 2002 and therefore taxable @ 12.5%. (b) Whether on application of the common parlance theory and taking into consideration the true intent of legislature, can it be said that the Schedule Entry C-107 (11)(g) envisaged within itself the inclusion of the impugned products "Health Drinks" within the term "Beverages (Non-Alcoholic)" as enshrined the said Schedule entry under MVAT Act, 2002." 7. We have heard the learned Counsel appearing for the Appellant and the learned Counsel appearing for the Respondent. 8. Learned Counsel for the Appellant submitted that the said products are consumed to achieve specific goals and the drink made therefrom are not `beverages' as commonly understood and the principle of common parlance is required to be applied in the present case. The said products ar....
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....pecific entry in the Schedule Entry C-107 11(g) to the taxing statute, it would override the general entry and only when liberal construction of specific Entry cannot cover the goods in question, the residuary Entry viz. Schedule Entry E-1 would apply. He urged that no interference is called for with the impugned order of the Tribunal. 10. We have considered the rival contentions of the parties. 11. The issue arises for consideration is whether for the relevant period the said products of the Respondent-Dealers should be classified under Schedule Entry C-107 (11)(g), which is exigible to tax @ 5% OR whether the said products are classifiable under Residuary Schedule Entry E-1, which is exigible to tax @ 12.5%. 12. In our view, the Tribunal has rightly held that the said products are classifiable under Schedule Entry C-107 (11)(g) and has rightly set aside the order of the Commissioner of Sales Tax who had classified the said products under Residuary Schedule Entry E-1, for the reasons which shall presently indicate. 13. The Schedule Entry C-107 (11)(g) for the relevant period reads as follows: Name of commodity Rate of tax (%) (g) Powders, tablets, cubes, crystals and other ....
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....of no assistance in the facts of the present case. As a matter of fact, in the aforesaid case in para 41 of the judgment, the Supreme Court held that the terms of the statutes must be adapted to developments of contemporary times rather than being held entirely inapplicable. 15. The Tribunal has reproduced the legislative history of the Schedule Entry 107-C (11)(g) in the impugned judgment and order in the following terms: C-II-47 Aerated waters and non-alcoholic beverages (including fruit juices, squashes, syrups and cardials) when sold in sealed, capsuled or carked bottles, jars, tins drums or other container 12% 1-7-1981 to 30-4-1982 C-II-47(i) i) Aerated waters and non-alcoholic beverages (including fruit juices, squashes, syrups and cardials) when sold in sealed, capsuled or carked bottles, jars, tins, drums or other container ii) Soft drink powders, tablets and crystals for which non-alcoholic beverages are prepared by adding any potable liquid 12% 1-5-1982 to 30-4-1992 iii) Powder, tablets Soft drink powders, tablets and crystals for which nonalcoholic beverages are prepared by adding any potable liquid 12% 1-4-1989 to 30-4-1992 C-II-47 i) Aerated, mine....