TaxTMI 
TaxTMI 
TaxTMI 
2021 (1) TMI 547
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....y a palm size round or may be smaller or bigger. However, with changing of time and considering the different demands of different class of consumers innovations are made in shapes and sizes also and now Papad comes in different shapes and sizes. 4. The applicant submitted that it does not required any extra effect to do the same with minor variations in proportions of ingredient and the dough is moulded in the desired shapes and size may be round, may be squre, may be semi-circle, may be hollow circle with bars in between or may be square with bars in between intersecting each other or may be of shape of any instrument, equipment, vehicle, aircraft, animal etc. The shape may vary, the size may vary but the ingredients, the proportion of ingredients, the composition and the recipe remains similar, if not exactly the same. 5. The applicant further submitted that they do not sell the Papad of different shapes and sizes manufactured by it in ready to eat condition. The applicant manufactures Papad of different shapes and size that are in neither fully cooked form nor ready to eat form till reaches the actual consumer. When the consumer desires to consume/ eat, the consumer needs to ....
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....d appreciated in the market. Due to advancement of the technology, it has become possible to bring change/ modification in the mindset of the people also that now PAPAD can be in any desired shape and size. Considering the same, the rules of viewing a product and interpretation about its classification also need to be modified and upgraded with the overall advancement of commercial scenario. 13. The applicant has referred a few judicial pronouncements wherein Hon'ble Courts including Hon'ble Supreme Court have resorted to encouragement of development of principles of interpretation according to the changing scenario. In the case of State of Punjab Vs. Amritsar Beverages Ltd. - [2006] 147 STC 657 (SC) = 2006 (8) TMI 308 - SUPREME COURT, Honourable Supreme Court was confronted with the issue of interpretation of a couple of provisions of the Indian Evidence Act and while interpreting the provisions vis-à-vis taking cognizance of technological development, Honourable Supreme Court observed that - Creative interpretation had been resorted to by the court so as to achieve a balance between the age old and rigid laws on the one hand and the advanced technology, on the other. Th....
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.... different nomenclature given to same commodity in different parts of the country and to avoid confusions and probable litigation, the entry relating to PAPAD has been deliberately worded as "PAPAD, BY WHATEVER NAME IT IS KNOWN" and not as only "PAPAD". 15. The applicant has referred the order passed by the Authority for Advance Ruling, Tamilnadu in the case of Subramani Sumathi- Order No. 07/AAR/2019 dtd. 22/01/2019 wherein the issue of classification of PAPAD made of maida was for consideration before Advance Ruling Authority and it has been held therein that the product in question was eligible to be classified as PAPAD under Tariff Heading 19050540. 16. The applicant submitted that issue as to whether PAPAD of different shapes and sizes and also known by different nomenclature, whereby more common nomenclature used is FRYUMS though FRYUMS is a registered brand name of TTK Healthcare Ltd. and not the name of any of product of PAPAD, would be eligible to be considered as and falling under the entry of PAPAD or not has been very well settled far back by Honourable Supreme Court in the case of Shiv Shakti Gold Finger Vs. Assisstant Commissioner, Commercial Tax, Jaipur - (1996) 9 ....
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....t decision of Honourable Karnataka High Court in Karnataka Vs. Vasavamba Stores - [2013] 60 VST 19 (Karn.) = 2012 (10) TMI 977 - KARNATAKA HIGH COURT has been carried by State of Karnataka before Honourable Supreme Court. However, as per knowledge of the applicant and subject to verification, Honourable Supreme Court has neither granted any stay on operation and execution of the decision of Honourable Karnataka High Court and as per settled legal position, till a judgment is stayed or reversed, it is the authority prevailing and the judicial discipline demands that the said judgment be honoured and followed. The applicant has rely upon the observation made by Honourable Supreme Court in the case of Collector of Customs, Bombay Vs. Krishna Sales (P) Ltd. - AIR 1994 SC 1239 = 1993 (9) TMI 124 - SUPREME COURT observing that - Mere filing of appeal does not operate as a stay or suspension of the order appealed against. (vi) On the issue of classification and the principles of classification, it would be profitable to refer to the decision of Honourable Supreme Court in the case of Commissioner of Commercial Tax, UP Vs. A. R. Thermosets (P) Ltd. - AIR 2016 SC 321 : (2016) 94 VST 258 (....
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....firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end to litigation. The doctrine of res-judicata has been evolved to prevent such anarchy. It would also nullify the doctrine of stare decisis a well established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly the Apex Court of a country cannot and should not be unsettled or ignored. Precedent keeps the law predictable and the law declared by Apex Court, being the law of the land, is binding on all courts/tribunals and authorities in India in view of Article 141 of the Constitution. The judicial system "only works if someone is allowed to have the last word" and the last word so spoken is accepted and religiously followed. The doctrine of stare decisis promotes a certainty and consistency in judicial decisions and this helps in the development of the law. Besides providing guidelines for individuals as to what would be the consequences if he chooses the legal action, the doctrine promotes confidence of the peopl....
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....ur, starch, corn flour, cereal flour, potato starch, chana, potato lentils, papad khar, bicarb, vegetables like ¯ Blended in a steering/ mixture machine with water and oil to make a dough ¯ Dough is passed through various die to form various shapes ¯ Product is dried through various stages (also includes sun drying in some cases)/ processes to maintain moisture level at a specific percentage level. ¯ Product is cooled and breakages are removed ¯ Product is packaged (branded or unbranded) as per the specific requirement 21. The applicant submitted that principal raw materials for papad products are: rice flour, corn flour, wheat flour, super fine wheat flour, cereal flour, tapioca starch, potato starch, salt, water and flavor, as the case may be. Similar raw-materials including pulses, salt, water etc. are used for making papad. Most of the said raw materials are either exempted from GST or subject to 5%/12% GST. 22. The applicant submitted that papad product, manufactured by above process with the ingredients stated above is then either sold to others entities who specialize in providing the process of frying and roasting these products;....
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....[2012-275-ELT-326-ALL] = 2010 (10) TMI 120 - ALLAHABAD HIGH COURT upheld that assessment of goods with regard to payment of customs duty is to be made based on contents involved. The Chapter Notes in the Customs Tariff also prescribe the content or ingredients of products in order to include or exclude specific products within a given Chapter Heading. 27. The applicant submitted that the products are in ready to fry condition for human consumption. Moreover, Explanatory Notes to Chapter 19 of Harmonized Commodity Description & coding system by World Customs Organization specifies that Chapter 19 covers preparation, generally used for food, which are made either directly from the cereals of Chapter 10, from the products of Chapter 11 or from food flour, meal and powder of vegetable origin of other Chapters. 28. The applicant submitted that considering the ingredients used and the process followed for manufacture of product read with Chapter Headings and Tariff entries, the products manufactured by applicant should merit classification under tariff heading 1905 90 40 as 'papad'. 29. The applicant further submitted that apart from above, they would humbly like to bring to kind noti....
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....estion before Honourable CEGAT and entry in question in present application of the applicant are completely different and more specifically when Honourable CEGAT had no occasion to consider two entries separately as PAPAD and NAMKEEN were covered under same entry. 30.2 The applicant further submitted that if the judgment of Honourable Supreme Court in the case of Commissioner of Commercial Tax, Indore Vs. M/s. T.T.K. Healthcare Ltd. -2007 (211) ELT 197 (SC) = 2007 (4) TMI 354 - SUPREME COURT which is referred in M/s. Sonal Products is examined, it can be noticed that at no point of time there was any question before Honourable Supreme Court as to whether the product FRYUMS could be considered as PAPAD or not. The issue for consideration before Honourable Court was whether FRYUMS would be classified under the entry of "COOKED FOOD" or "RESIDUARY ENTRY". Thus, there was no occasion for Honourable Supreme Court to consider the issue of classification of FRYUMS under entry of PAPAD. Hence, Honourable AAR has completely erred in placing reliance upon the said judgment in the case of Sonal Products. 31. The applicant submitted that in the case of Sonal Products, the applicant therein h....
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....-First Appeal No.1/2015 read with Rectification Application No.31/2015 in First Appeal No.1/2015 Dt;-03/07/2015 reported in 2015 GSTB -II -405 and in the case of M/s. Swethin Food Products Vs. State of Gujarat -2016 GSTB -I 296, Honourable Karnataka High Court in the case of State of Karnataka Vs. Vasavamba Stores -[2013] 60 VST 19 (Karn.) = 2012 (10) TMI 977 - KARNATAKA HIGH COURT and Honourable Supreme Court in the case of Shiv Shakti Gold Finger Vs. Assisstant Commissioner, Commercial Tax, Jaipur -(1996) 9 SCC 514 = 1996 (5) TMI 419 - SUPREME COURT deal with an entry identical to the entry under GST Act i.e. PAPAD and classify the similar product like of applicant as PAPAD. So, according to understanding of the applicant, more reliance should be placed and more weightage should be given to the decisions wherein identical or similar entries were involved and with due respect, not to the decisions where entries for consideration were completely different. 33. The applicant submitted that in the case of Sonal Products, the products have been held to be classifiable under Chapter Heading 2106 90 99 i.e. under the residuary entry. 33.1 The applicant submitted that the ruling has re....
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....auri Yeast India Pvt.Ltd. Vs. State of UP -2008 (225) ELT 321 (SC) = 2008 (4) TMI 101 - SUPREME COURT is that -If there is conflict between two entries one leading to an opinion that it comes within the purview of the tariff entry and another the residuary entry, the former should be preferred. 35. The applicant further submitted that yet another principle of rule of interpretation and classification is noscitur a sociis which means that meaning of a word is to be judged by the company it keeps. Applying the said principle while classifying the product of the present applicant, by no means it can be said that it is eligible to be classified under heading 2106 because by no stretch of imagination the product of the applicant can be equated with either "Misthan" or "Mithai"or "Namkeen" or "Chabena" or "Bhujia". At the cost of repetition the applicant would like to submit that product of the applicant can neither be consumed by human in the form it is sold which means that is not ready to eat product for human consumption. Thus, heading 2106 90 99 even as general entry is not capable of including the product of the applicant and 1905 90 40 is the only entry and most specific entry wh....
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....Act, 1975, the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the 'CGST Act, 2017), the Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to as the 'GGST Act, 2017'), Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as the IGST Act, 2017 or the Notifications issued under the CGST Act, 2017/GGST Act, 2017/IGST Act, 2017. 41.1 It is now well settled principle of interpretation of statute that the word not defined in the statute must be construed in its popular sense, meaning 'that sense which people conversant with the subject matter with which the statute is dealing would attribute to it'. It is to be construed as understood in common language. In the case of Indo International Industries v. Commissioner of Sales Tax, U.P. [1981 (8) E.L.T. 325 (S.C.)] = 1981 (3) TMI 77 - SUPREME COURT, Hon'ble Supreme Court has held as follows : "4. It is well settled that in interpreting Items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms....
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....was examined by the Hon'ble Customs, Excise and Gold Appellate Tribunal (CEGAT, as it was known then) in the case of T.T.K. Pharma Ltd. v. Collector of Central Excise [1993 (63) E.L.T. 446 (Tribunal)] = 1992 (8) TMI 183 - CEGAT, NEW DELHI. In this case, the Hon'ble Tribunal, inter alia, observed as follows:- 6. A reading of these sub-headings makes it clear that the product is not a Prasad or Prasadam, Sterilised or pasteurised miltone. Therefore, it will not come within the sub-headings 2107.10 or 2107.20. As the item is not put in a unit container and ordinarily intended for sale, it will not come within the Heading 2107.91. Therefore, the product has to be brought under the residuary sub-heading 2107.99 as 'Other' carrying nil rate of duty. As we have classified the product under the residuary product under the heading "Edible preparations not elsewhere specified or included which carries nil rate of duty, the question of raising any demand or of Excise duty may not arise. However, as arguments have been adduced with regard to the Notification No. 12/90, dated 20-3-1990, it would be proper for us to give finding in regard to the same. 7. ...... 8 ......... The Sl. No. 8 ....
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....r and differentiate between PAPAD and NAMKEEN. Subsequently, the entries were changed and then came into existence two different entries for PAPAD and NAMKEEN. The applicant said argument is not tenable as such applicant is interpreting the aforesaid judgement as per their convenience because in the said case Hon'ble CEGAT was to decide whether the said Product i.e. "Fryums" can be equate with Namkeen or not so that assessee can get benefit the exemption from payment of duty. The assessee (M/s. TTK Pharma) in the case had claimed that their product "Fryums" is a Namkeen and not claimed as "Papad" where as in the exemption entry "Papad, Idli-Mix, Vada-Mix, Dosa-Mix, Jalebi-Mix, Gulabjamun-Mix or Namkeens such as Bhujia, Chabena" both the product i.e. "Papad" and "Namkeen" were exempted. The assessee (M/s. TTK Pharma) emphasis that his product is Namkeen. It is amply clear that M/s. TTK Pharma was well aware about the nature of the product that their product 'Fryums" cannot be defined as "Papad" instead of it is correctly called as "Namkeen". The assessee (M/s. TTK Pharma) in this case knows that if they claimed their product Fryums as Papad they will not get covered under the said s....
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....tem 'fryums' in the present case will not fall within the term 'cooked food' under Item 2 Part I of Schedule II to the 1994 Act. It will fall under the residuary item "all other goods not included in any part of Schedule I". [underlining supplied] 44.4 In this case, Hon'ble Supreme Court was of the view that 'fryums' were like 'seviyan'. 45. The applicant in their application has submitted that such 'different shapes and sizes un-fried Papad is not a cooked food and actually it is ready to cook food. This is a fact that when a person goes in the shop for purchase of Papad, shopkeeper shows him different types of Papad like 'Moong dal Papad' 'Udad dal Papad', 'Chaval ke Papad' etc. but shopkeeper never shows different shapes and sizes like round, square, semi-circle, hollow circle with bars in between or square with bars in between intersecting each other or shape of any instrument, equipment, vehicle, aircraft, animal type Papad. But, when customer asks the Fryums from the shopkeeper, then he shows all such type of different shape and size of Fryums as mentioned above. The applicant has not mentioned this fact because it is crystal clear that Papad is a distinct commodity and it....
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.... decided the classification of "Papad" made from "Maida" i.e. fine wheat flour and not the classification of "Fryums". Accordingly, the facts of the said Ruling of the Advance Authority are totally different. Therefore, the said Ruling of Advance Authority is not applicable in the applicant case. Further, as per Section 103 of the CGST Act, 2017 any Advance Ruling is binding on the Applicant who has sought it and on the concerned officer or the jurisdictional officer in respect of the Applicant. Accordingly, AARs Ruling as cited above can't be relied upon in the present case of the Appellant. 47. The applicant has claimed that the main ingredient of their product i.e. so called Papad of different shapes and sizes is wheat flour, superfine wheat flour, rice flour, starch, corn flour, cereal flour, potato starch, chana, potato lentils, papad khar, bicarb, vegetables like and same ingredient is of Papad. This is not correct because main ingredient of Papad is batter of Pulses i.e. Moong dal, Udad Dal, black pepper and not of wheat Flour and Maida. In the market most popular papad are of "Moong dal Papad" and "Udad dal papad". Therefore, main ingredients of both the Product i.e. "Fryu....
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.... Schedule to the KVAT Act. 50.1 The State of Karnataka has filed Special Leave Petitions (C) No. 29023-29083/2013 in the Hon'ble Supreme Court against the said judgment of Hon'ble High Court of Karnataka. The Hon'ble Supreme Court has granted leave to the said Special Leave Petitions. Therefore, the aforesaid judgment of the Hon'ble Karnataka High Court is in jeopardy, in view of the judgment of Hon'ble Supreme Court in the case of Union of India v. West Coast Paper Mills Ltd. [2004 (164) E.L.T. 375 (S.C.)] = 2004 (2) TMI 344 - SUPREME COURT, wherein it has been held as under - "14. Article 136 of the Constitution of India confers a special power upon this Court in terms whereof an appeal shall lie against any order passed by a Court or Tribunal. Once a Special Leave is granted and the appeal is admitted the correctness or otherwise of the judgment of the Tribunal becomes wide open. In such an appeal, the court is entitled to go into both questions of fact as well as law. In such an event the correctness of the judgment is in jeopardy. .......... .......... 38. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before thi....
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....106 90 40 ---Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrin syrup kg. 2106 90 50 ---Compound preparations for making non-alcoholic beverages kg. 2106 90 60 ---Food flavouring material kg. 2106 90 70 ---Churna for pan kg. 2106 90 80 ---Custard powder kg. ---Other 2106 90 91 ----Diabetic foods kg. 2106 90 92 ----Sterilized or pasteurized millstone kg. 2106 90 99 ----Other kg. 52.3 Chapter Note 5 and 6 of Chapter 21 provides, as follows - "5. Heading 2106 (except tariff items 2106 90 20 and 2106 90 30), inter alia includes : (a) ...... (b) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption; (c) ...... (d) ...... (e) ...... (f) ...... (g) ...... (h) ...... (i) ...... 6. Tariff item 2106 90 99 includes sweet meats commonly known as "Misthans" or "Mithai" or called by any other name. They also include products commonly known as "Namkeens", "Mixtures", "Bhujia", "Chabena" or called by any other name. Such products remain classif....
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.... apply on all squares. Therefore, in the instant Case the goods "Papad" cannot be termed as "Fryums" hence applicant goods is to be classified under CTH No. 2106 and not under CTH No. 1905 of Custom tariff Act, 1975. 52.8 Taking all these aspects into consideration, we hold that the product 'different shapes and sizes un-fried Fryums' is appropriately classifiable under Tariff Item 2106 90 99. 53. Sl. No. 23 of Schedule III of Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017, as amended vide Notification No. 41/2017-Central Tax (Rate), dated 14-11-2017 issued under the CGST Act, 2017 and corresponding Notification No. 1/2017-State Tax (Rate), dated 30-6-2017, as amended, issued under the GGST Act, 2017 covers "Food preparations not elsewhere specified or included [other than roasted gram, sweetmeats, batters including idli/dosa batter, namkeens, bhujia, mixture, chabena and similar edible preparations in ready for consumption form, khakhra, chutney powder, diabetic foods]" falling under Heading 2106. Therefore, Goods and Services Tax rate of 18% (CGST 9% + GGST 9% or IGST 18%) is applicable to the product 'Un-fried Fryums' as per Sl. No. 23 of Schedule III of Notificat....