TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 1817
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....2. An argument was made that "Frooti" being a product of fruit will fall in the Residual Entry of Schedule-II of the Act, 1976 and therefore, liable to be taxed at the rate of 1% and not 2%. The learned Single Judge did examine such submission of the Appellants whether 'Frooti' being a fruit juice would be required to be considered under the Residuary Entry or can be read into Entry 14 of Schedule-II Part I of the Act, 1976. 3. Entry 14 reads as under: "All kinds of non-alcoholic drinks and beverages, ice-cream, kulfi and ice candy ------- 2%. 4. The learned Single Judge, after having examined the above Entry 14 and keeping in mind the various settled propositions and principles of law by the highest Court of land, repelled the argument of the Petitioners that "Frooti" was a fruit drink, therefore, will not come within Entry 14 of Schedule-II of the Act, 1976 and therefore, has to be carried to the Residuary Entry. 5. The learned Single Judge has given the following reasons based on the different judicial precedents. He repelled the argument of the Petitioners, dismissed the writ application and held that "Frooti" can very well be read as an item under Entry 14 of Sche....
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....ecessarily be covered by fillers/ vehicles in order to make the product usable. It could not be denied that all the ingredients used in Banphool Oil are those which are set out in the Ayurveda text Books. Of course the formula may not be as per the text books but a medicament can also be under a patented or proprietary formula. The main criteria for determining classification is normally the use it is put to by the customers who use it. The burden of proving that Banphool Oil is understood by the customers as an hair oil was on the revenue. This burden is not discharged as no such proof is adduced. On the contrary we find that the oil can be used for treatment of headache, eye problem, night blindness reeling head weak memory, hysteria amnesia blood pressure, insomnia etc. The dosages required are also set out on the label. The product is registered with Drug Controller and is being manufactured under a drug licence." 9. Similar proposition has been held in the matter of Puma Ayurvedic Herbal (P) Ltd. v. Commissioner, Central Excise, Nagpur (2006) 3 SCC 266 by observing as under: - "It is settled law that the burden of showing correct classification lies on the revenue." ....
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....d another the residuary entry, the former should be preferred." 14.Having noticed the principle of law relating to interpretation of tariff entry and when the residuary entry has to be resorted into, reverting to the dispute brought before the Court, the question involved is, whether the assessing authority and the revisional authority are justified in holding that "frooti" would fall within Entry 14 of Schedule II of the Act of 1976 and would not fall within residuary entry and entry tax liability would at the rate of 2%. 15. Entry 14 of Schedule II of the Act of 1976 reads as under:- "All kinds of non--alcoholic drinks and beverages, ice-cream, kulfi and ice candy." 16.The question would be whether "frooti" is beverage. The word 'beverage' can be defined as under:- "Beverage" has been defined in "The Random House Dictionary of the English Language: as: "A drink of any kind, other than water such as tea, coffee, beer, milk, etc.'" In "Encyclopedia Britanmica (Mycropedia)", page 1095, it has been described thus: "Liquid prepared for human consumption including types made by an infusion such as tea and coffee, fruit juices and other juices extracted from ....
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....entific and technical word are also to be looked into in technical and scientific meaning. It was observed as under:- "40. In the present case, Entry 2 under Section 6(1) (a) uses the word "aerated". This is scientific term and has been repeatedly used in different statues including the Central Excise Tariff and different HSN Codes also uses the term "aerated". The word "aerated" is scientific and technical word used under different statutes and the scientific and technical meaning of the word "aerated" can be looked into for finding out the real import of the Entry. 41. In view of the above, we are of the opinion that common parlance and commercial parlance test was not the only test which could have been applied for interpreting the entries in items mentioned in Section 6(1)(a) and the entries which contain scientific and technical word were also to be looked into in technical and scientific meaning. Both the High Court and the Committee of Joint Commissioners discarded the evidence of technical and scientific meaning of word. The appellant has rightly relied on the technical evidence brought on the record which indicate that use of carbon dioxide to the extent of 0.6 per cen....
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....k and beverages also included fruit juices, squashes, syrups etc. by specific reference thereto or they were also shown as a separate entry. 9. The reason for reliance on such legislation is to draw from the pages of history that the Legislatures too have treated fruit juices and its products as a separate identity, if not an Entry. 10. The Court is not moved or impressed by looking into those entries under those legislations because interpretation is required to be given in relation to the legislation which is subject matter of adjudication and/or interpretation before the Court. 11. Merely because the Legislature did not show fruit juices as a separate Entry or have not mentioned the word 'including fruit juices' in Entry 14 of Schedule-II of the Act, 1976, it does not mean that "Frooti" ceases to be a non-alcoholic drink or a beverage. 12. The Entry existing in the Act, 1976 as it stands today, in our opinion will also encompass fruit juices like "Frooti" under Entry 14 and it has to be taxed at the rate indicated in the said Entry. 13. The learned Single Judge has rightly taken note of judicial precedents as well as the principle of such interpretation and has righ....