TaxTMI 
TaxTMI 
2019 (7) TMI 1670
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....for wrongful classification made by the appellant regarding sale of packaged commodities as mentioned above as savories and assessed the applicable rate of tax 2% instead of 14.5%. Thereafter, the Assessing Authority issued notice by exercising power as conferred u/s 30(2) of PVAT Act, 2007 and thereby the Assessing Authority assessed Tax at 14.5% on the sale of packaged commodity known as Lays, Kurkure and Cheetos and levied tax @ 14.5% on the reported turn over for the years 2015-2016 and 2014-2015 respectively. The Learned Counsel for the appellant has submitted the citations- 1. DCAITST Vs. Dhanalakshmi Vilas Cashew Co.-(1969) 24 STC 491. 2. Binani Industries Ltd. Vs. Assistant Commissioner - (2007) 6 VST 783. 3. CIT Vs. J.K.Commercial Corporation - (1976) 105 ITR 219 4. Marimuthu Nadar and Brothers Vs. State of Tamil Nadu - (1981) 47 STC 314. 5. State of Tamil Nadu Vs. Mohamed Hanifa - (1992) 87 STC 240. On careful reading of those judgments they reveal that they are relating to the reopening of assessment, in the case on hand, the Learned Counsel for the appellant has argued that the Assessing Authority has not acted in accordance with law and reopening the assess....
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.... are edible preparation and eligible for excise duty exemption. On careful reading of those judgments submitted by the appellant, they reveal that the Lays, Kurkure and Cheetos, Wheels are processed vegetables and edible preparation and taxable as per the classification of the Act. As far as the processed vegetables are concerned, as per PVAT Act, the III Schedule Part-A, SI.No.7 "All processed fruits, vegetables, etc. including fruit jam, jelly, pickle, fruit squash, paste, fruit drunk and fruit juice (whether in sealed containers or otherwise) are taxable at 4%. But in the case on hand, the appellant is not claiming that the said Chips, Kurkure and Cheetos are liable to be taxed at 4%. Per contra they are claiming the G.O.Ms.No.24/F2/2013, dated 31.07.2013. As per the said G.O., it reduced the tax from 14.5% to 2%, for all kinds of cooked food, including sweets, savories and mineral water. Therefore, it is clear that which are all taxable at 14.5% alone reduced to 2%. In the case on hand, according to the appellants, the potato chips are processed vegetables and whileso, the tax is 4% as per the III Schedule of PVAT Act, 2007 and it will not cover under the G.O.Ms.No.24/F2/2013....
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....nder the Schedule of PVAT Act, then why the appellant classified the said goods as taxable at 14.5% and relied the G.O.Ms.No.24/F2/2013, dated 31.07.2013. According to the III Schedule, Porridge is taxable at 4%, but in the case on hand, it is not the case of the appellant that the Quakers Oats is liable to be taxed at 4%, but relying the G.O. and claimed tax at 2%. Therefore, the contention of the appellant is not acceptable. Even the said Lays, Kurkure, Cheetos and Quaker Oats are taxable as per III Schedule, the appellant has taxed only at 2% relying the G.O.Ms.No.24/F2/2013, dated 31.07.2013 and thereby he has not come to the court with clean hands. Since the appellant has suppressed the facts and not come to this court with clean hands, he cannot seek any remedy from this court. As per the Notification, all the cooked foods including sweets and savories, means sweets and savories supplied along with the cooked foods alone liable to be taxed at 2% and the other branded sweets and savories are liable to be taxed at 14.5% as per the Schedule IV Part-A of the PVAT Act. As per the said G.O. the earlier tax at 14.5% reduced to 2%, therefore earlier the said cooked food, savories and....
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....hat it is necessary so to do in the public interest, is pleased to reduce the rate of tax payable in respect of: (a) Liquified Petroleum Gas (LPG) from 4% to 1%; (b) Ready to eat unbranded foods including sweets, savouries, unbranded non-alcoholic drinks, beverages and mineral water served in or catered indoors or outdoors by hotels, restaurants, sweet stalls, clubs, caterers and any other eating houses, from 12.5% to 2%;" 5.Learned counsel for the Appellant/Assessee, Mrs.Hema Muralikrishnan, submitted that the entry in the relevant Notification dated 31.07.2013, does not have any restrictions on the item sold by the Assessee in the present case, which are apparently covered by the term 'savories' in the said Notification, which by definition means, 'salty food items'. She submitted that "all kinds of cooked food including sweets", which the present items are not and "savories" were sought to be taxed at the reduced rate of 2% reducing the same from 14.5% under the provisions of the said Puducherry VAT Act, 2007. Therefore, the said Notification was issued to give the benefit of concessional rate to such items. She further urged that the Revenue on the other ha....
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....ording to such laws. 20. The judgments relied upon by the learned counsel for the petitioner are primarily decided on the basis of Excise Laws and taking into consideration the above findings, in my view, can be said to be distinguishable and not applicable on facts. One has to take into consideration the plain and simple meaning of "Namkin" and when taken into consideration the products manufactured, can be held to be classifiable only under "preserved food articles". 21.Taking into consideration the over-all facts noticed by both the authorities and the view analysed hereinabove, in my view the question of law is required to be answered against the assessee and in favour of the Revenue. Consequently, the petitions being devoid of merits, stand dismissed, with no order as to costs." 10. Learned counsel for the Revenue also relied upon the order of Advance Ruling Authority, Commercial Taxes Department, Puducherry, rendered on 26.09.2013, which by a short order, held that 'Lion Oats' is not specified anywhere in the Schedules of Pondichery VAT Act, 2007 and hence, it is taxable at 12.5% upto 31.12.2011 and thereafter at 14.5% as per Part A of IV Schedule (residual entry....
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....the Revenue that these items cannot fall within the generic term 'savories' as used in the Notification dated 31.07.2013. 'Savories' to a common man would mean only cooked or fried food items with a salted test as against the sweet taste. The sweet taste has been separately indicated in the same Notification. In fact, there is no restriction to cover these items, as "all kinds of cooked food" in the same Notification dated 31.07.2013. 16. Be that as it may, since "savories" is separately indicated, as a generic term in the same Notification, which in our opinion would cover the items taxable in the hand of the Appellant/Assessee, without any iota of doubt, we cannot permit the Revenue to tax the same in the residual entry at much higher rate of 14.5%. That would defeat, in our opinion, the very purpose of extending the benefit of concessional rate of tax to "savories" besides all kinds of cooked food, sweets and mineral water. Therefore, the Brand or shelf life or addition of preservative or absence thereof is neither indicated nor is otherwise relevant, while interpreting the aforesaid Entry of the said Notification in hand. 17. What a common man will understand ....
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....ri Balaji Agencies, Puducherry was issued notice dated 17.09.2013, to appear before the Authority for hearing, either in person or through authorised representative on the said date and time. But the applicant has neither appeared in person nor through duly authorised representative or sought for time. 3. Therefore, the Authority has examined the clarifications sought for by Tvl. Sri Balaji Agencies, Puducherry and gives the following rulings by virtue of the powers conferred under section 77 of the Puducherry Value Added Tax Act, 2007:- "Lion Oats is not specified anywhere in the schedules of the Puducherry Value Added Tax Act, 2007. Hence, the above item is taxable at 12.5% upto 31.12.2011 and thereafter at 14.5% as per entry no.1 of Part-A of the Fourth Schedule of the Puducherry Value Added Tax Act, 2007." 20. A base perusal of the said order would indicate a total non -application of mind on the part of the responsible officers of the Department. Not a single reason has been assigned by them to hold the items in question as taxable at 12.5% / 14.5% and why it could not be taken as "Porridge" or as any other item like cooked food or Savories. Nothing has been decided. It a....