TaxTMI 
TaxTMI 
2015 (10) TMI 2629
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....er challenging the assessing authority's order for a subsequent year, issued based on the view which is the subject matter of the two revisions, are being decided through this common judgment. 2. Upon hearing the learned Senior Advocate appearing for the assessee and the learned Government Pleader for the Department of Commercial Taxes; the issue for decision in these matters is as to whether 'spent grain', generated in a brewery in the manufacture of 'beer', is an article that would fall within the Entry at Serial No.3 in the First Schedule of the Kerala Value Added Tax Act, 2003, which relates to exempted goods; or whether, it is assessable to tax, by treating them as not goods falling under clause (a) or (c) of section 6(1) of....
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....ned revisions. 4. Relying on the views of the statutory authorities, including that of the Appellate Tribunal, as reflected by the impugned orders, the learned Government Pleader for the Department of Commercial Taxes, argued that the commodity 'spent grain' does not find a place among the entries in the First Schedule; that the dealer failed in establishing the correct entry of the product, 'spent grain', in the First Schedule; and that, the onus of proving that 'spent grain' is not taxable, is on the dealer, and that the assessee had not discharged that burden. He also relied on the factual finding of the statutory authorities that during the process of brewing, certain residuary is obtained, and that, such residuary, which is a mixtur....
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....e orders of the statutory authorities, which are impugned in the revisions and in the writ petition, there is no case for the Department that 'spent grain' is nothing but the residue of the process of brewing, which leads to the primary product called 'beer'. Even according to the departmental authorities, the claim for exemption made by the assessee was towards the sale of 'spent grain' on the premise that it is an item which is eligible for exemption as falling under the First Schedule to the Act. The assessee had specifically taken the stand before the Assistant Commissioner itself that during the process of brewing, certain residuaries are obtained, which are used as cattle feed and that such residuary is a mixture of maize bran....
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....tself, or otherwise, among those specifically mentioned in Schedule III. When the dealer prima facie shows; quite strongly; that in all reasonableness and on the basis of predominantly identifiable indicators, a particular article of goods falls under an entry in the nature of what is provided for at Sl. No.3 (three) in the First Schedule, it would be for the Revenue to show that those goods fall within the exclusions under that entry, and would fall within the tax net, in terms of Schedule III, or such other provision, as the case may be, in any given case. In the case in hand, there is absolutely no material for the Revenue to show that 'spent grain' is an article that could be subjected to taxation, with reference to any entry in Schedul....
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....s of different processes of production, we see that there are efforts being made, and suggestions extended; in the international scientific domain; to utilise 'spent grain', primarily as fodder, and even as food substitutes even for humans, particularly in exceptionally marginalised and economically challenged social groups in certain parts of the world. But, in the contextual content of a taxing statute in a land like India; particularly in the State of Kerala; with the judicial prudence that we are expected to have, we are unable to visualise that 'spent grain' would be reckoned as an edible substitute for human beings; here and now. In this view of the matter, we cannot but repel the suggestion on behalf of the Revenue as to the ....