TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 125
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....t : Mr. Vivek Singhal Mr. Sarvesh Jain ORDER 1. In both the batch of cases, the issue being identical, is being decided by a common order. It is relevant for the assessment years 2000-01 to 2004-05. 2. In the cases of M/s Cadbury India Ltd., preferred by the Revenue, this court had admitted the petitions on the following specific questions of law which would cover the controversy :- (i) Whether the impugned orders of learned Tax Board and Appellate Authority ignoring the material evidence on record and considering the material which is not the part of record, vitiates the order under law? (ii) Whether the Tax Board as well as Appellate Authority was justified in creating a case in favour of the respondent which never existed by misint....
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.... "Mileage Drinking Powder", where too, the assessee was collecting and paying tax @ 10%, whereas the claim of Revenue is that it falls within entry 184/186 as per notification dt 22.3.2002 where a rate of 16% is applicable as these products are categorised as "eatables & non-alcoholic potable liquids" falling in the same category as that of "fruit syrups, distilled juices, jams (chatani, murabbas), fruit juices, drink concentrates etc. 7. A show cause notice was given by the Assessing Officer as to why the above products be not taken into entry 184/186 of notification dt 22.3.2002 and be not taxed @ 16%. A detailed explanation was furnished by the assessee, inter alia, claiming that the products are not covered under entry 184/186 and thes....
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....counsel contended that the claim of assessee is wrong that these are being prescribed by doctors. "Coco, Drinking Chocolate and Bournvita" are products which cannot be said to be prescribed by doctors, rather in most of the families of middle class and upper middle class, every child is being provided with such products which may be mixed normally with milk or water to improve the taste of milk. Even for "Mileage Drinking Powder" merely because at one place the advertisement says so, cannot be relied upon by the assessee as once there is a specific entry, it has to be taken to the logical end and thus contended that the questions are required to be answered in favour of the Revenue and against the assessee. 11. Per contra, learned counsel ....
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.... and forms, essences, concentrates, corn flakes and wheat flakes, custard powder, baking powder, ice-cream poder and packed masala. 16% 186 All kind of eatables & non-alcoholic potable liquids such fruit syrups, distilled juices, jams (chatani, Murabbas) fruit, juices, drink concentrates of all types and forms essences, concentrates, corn flakes and wheat flakes, custard powder, baking powder, ice cream powder and packed masala. 16% 13. In my view, the products as they stand, namely "Coco, Drinking Chocolate and Bournvita" or "Mileage Drinking Powder" cannot be straight away eaten or used directly but have to be mixed with milk or other drink. Eatable in normal parlance or common parlance is an item which can directly be taken....
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....gulkand" etc., packed in tins or bottles or plastic containers or scaled packing of any kind. 10% 16. On perusal of the same, in my view, there is hardly any change insofar as the entries being considered, namely 184 and 186 to that of 49 (supra) and it is admitted that the judgment of M/s Empire Store Agencies (supra) attained finality and this judgment held the field for last over 40 years. A claim having been allowed over the years and settled since long cannot be abruptly or suddenly changed to suit the claim of Revenue. 17. The Apex court in the case of Bharat Sanchar Nigam Ltd. & Anr v. UOI & Ors (2006) 3 SCC 1, has held that once a claim has been allowed repeatedly, it should not be reversed unless compelling circumstances....
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....sdiction. 21. In our opinion, the preliminary objection raised by the State of U.P. therefore, rests on a faulty premise. The contention of the appellant/petitioners in these matters is not that the decision in State of U.P. v. Union of India (2003) 3 SCC 239 for that assessment year should be set aside, but that it should be overruled as an authority or precedent. Therefore, the decisions in Devilal Modi v. Sales Tax Officer (1965 ) 1 SCR 686 and in Hurra v. Hurra (2002) 4 SCC 388, are not germane. 22. A decision can be set aside in the same lis on a prayer for review or an application for recall or Under Article 32 in the peculiar circumstances mentioned in Hurra v. Hurra (supra). As we have said overruling of a decision takes place i....