TaxTMI 
TaxTMI 
2016 (8) TMI 247
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.... convenience), by application dated 9/3/2007. The Advance Ruling Authority, vide order dated 28/3/2007, observed that the rate of tax shall be 4% under Entry 3 of Third Schedule. The case of the appellant is that it acted upon the said decision of the Advance Ruling Authority. Subsequently, the matter was taken up in revision by the Commissioner of Commercial Taxes (hereinafter referred to as the Commissioner) and show- cause notice was issued. The appellant herein replied to the notice and ultimately, on 18/2/2012, the impugned order was passed as referred to above. Under the circumstances, the present appeal is before this court. 3. We have heard Mr.B.P.Gandhi, learned counsel appearing for the appellant and Mr. K.M.Shivayogiswamy, learned Addl. Government Advocate appearing for the respondent. 4. The contention raised on behalf of the appellant is that as per Entry 3 of the Third Schedule of KVAT Act, processed fruits and vegetables are included in the said entry and therefore, Mango Juc-Fit in liquid form as well as Mango Fruit Booster and Orange Juc-up in powder form would also stand included. The revisional authority has not properly considered the said aspects while exclud....
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...."Authority for Clarification and Advance Rulings", consisting of atleast three Additional Commissioners, to clarify the rate of tax in respect of any goods or the exigibility to tax of any transaction or eligibility of deduction of input tax or liability of deduction of tax at source under the Act, in respect of any case or class of cases as the Commissioner may specify. (2) Any registered dealer seeking clarification or advanced ruling under this Section, shall make an application to the Authority in such form, accompanied by proof of payment of such fee, paid in such manner as may be prescribed. (2-A) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the assessing or registering authority concerned and call for its finding on the clarification sought or question raised and also any information or records. (2-B) The Authority may, after examining the application and any records called for, by order either, admit or reject the application: Provided that the Authority shall not allow the application where the question raised in the application. - (i) is already pending before any officer or authority of the Department or Appellate Tribun....
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....ion and Advance Rulings" under subs-section (2-D) pertaining to any particular goods, the rate of tax payable in respect of such goods by the applicant shall be at such rate as may be clarified by the Commissioner under sub- section (4) of Section 59, from the date of its publication in the Official Gazette." As per the aforesaid provision, the Commissioner may constitute the authority for Clarification and Advance Ruling consisting of atleast three Additional Commissioners for clarifying the rate of tax in respect of any goods or exigibility to tax of any transaction or eligibility of deduction of input tax or liability of deduction of tax at source under the Act. Therefore, it is trite that the constitution of the Advance Ruling Authority may comprise of atleast three additional Commissioners. Sub-section (2) of Section 60 provides for making of any application by any dealer. Sub-section (2-A) to (2-D) provides for consideration of the application. Sub-section (3) provides that no officer or any authority of the Department or the Appellate Tribunal shall proceed to decide any issue in respect of the application, which is made in this section. Sub-section (4) provides that the or....
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.... is erroneous in so far as it is prejudicial to the interest of the revenue, he may if necessary, stay the operation of such order for such period as he deems fit and after giving the person concerned an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment or directing a fresh assessment. (3) The Additional Commissioner or the Commissioner shall not exercise any power under sub-section (1) or sub-section (2), as the case may be, if.- (a) the time for appeal against the order has not expired; (b) the matter has been subject to an appeal under Section 63 or a revision in the High Court; or (c) more than four years have expired after the passing of the order sought to be revised. [Provided that in the case of an order passed by the Appellate Authority under Section 62 allowing the appeal preferred in full, the conditions specified in clause (a) shall not apply.] (4) Notwithstanding anything contained in sub-section (3), the Additional Commissioner or the Commissioner may pass an o....
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....rejudicial to the interest of the Revenue. He may pass further order and exercise the power as provided under sub-section (2). 9. We may record that the words "Authority for Clarification and Advance Rulings" constituted under Section 60 of the KVAT Act is already inserted by Act No.6 of 2005 with effect from 19/3/2005. Therefore, upon consideration of sub-section (7) of Section 60 read with sub-section (2) of Section 64, it cannot be said that the Commissioner will have no revisional power against the order of the Advance Ruling Authority. 10. On the contrary, express provision of statute on the decision of the Advance Ruling Authority is subject to Section 64(2) of the Act and it is only thereafter finality is attached to the said decision. 11. The fact that the Advance Ruling Authority comprises of three Additional Commissioners or the fact that the power is exercised by the Commissioner under sub-section (2), against the decision of the Additional Commissioners, would hardly assume any significance when the statute expressly provides a mechanism whereby finality can be attached to the order of the said Authority subject to the revisional power with the Commissioner under sub....
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....it jams, jelly, pickles, fruit squash, paste, fruit drinks and fruit juice (whether sealed in container or otherwise) are included in the said entry. The basis of the aforesaid entry is that the items contained therein must be processed fruit or processed vegetables. Further, if the colour or the meaning of the expression "processed fruit or vegetables" is to be considered, one may be required to consider the other parts of the entry which may throw light on the intention of the legislature. Jams, jelly, pickles, squash, paste, drink, juice, would show that such processed foods may be in liquid or semi-liquid form or in the form of a paste in contradistinction to the concentrated power form. 16. The attempt made on the part of the learned counsel for the appellant is that when the words used are "all processed" it would include all form of processed fruit and vegetables and it is not necessary that it should be in the form of liquid, semi liquid, paste or squash or in powder form. Therefore, the submission was that concentrated powder form would also get included in the entry. It was also contended in furtherance thereto that the definition is an inclusive definition and an expans....
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....tain entries are considered of the First Schedule which is for exempted goods then Entry 25 provides for fresh plants, saplings; Entry 30 provides for jaggery which is made out of sugarcane juice; Entry 33 provides for leaf plates which is made out of plants; Entry 51 provides for toddy, neera and arrack which is extracted from fruit. If the contention of the learned Counsel for the appellant is accepted, the resultant effect would be, that all such aforesaid entries would be redundant if the said items are included in Entry No.3 of the Third Schedule, unless exempted from the payment of tax. 20. Under the circumstances, we find that unless a strict meaning is given to the expression "all processed fruit and vegetables" in the form of liquid, semi-liquid paste or squash form, they would not get included in Entry No.3 of Second Schedule . In any case, concentrated powder form, by applying the common parlance test would stand on an altogether different position than any fruit or vegetable found in liquid or semi liquid, paste or squash form. Under circumstances, the contention raised that "all types of processed fruits and vegetables" would also include concentrated form of powder c....