TaxTMI 
TaxTMI 
2022 (8) TMI 698
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....t orders passed for the aforementioned periods, the Sales Tax Officer (STO) i.e. Assessing Officer (AO) rejected the plea of the Petitioner that the aforementioned products of the Petitioner were nothing but barley as a cereal as mentioned in Entry 25 of List-C in Chapter III of the rate chart appended to the OST Act. The above orders have been confirmed by the Orissa Sales Tax Tribunal ('Tribunal') by rejecting the Petitioner's appeals. 3. It requires to be noted at the outset that there was a batch of six revision petitions filed by the Petitioner including the present three revision petitions. STREV No.75 of 2011 for the period 2001-02; STREV No.56 of 2010 for the period 2002-03; STREV No.55 of 2011 for the period 2004-05 were all disposed of on 20th June, 2022 itself. Relevant provisions 4. At the outset, it must be observed that the Entry number in the rate chart has been varied by fresh notifications issued from time to time. As per the Rate notification with effect from 1st April, 2001 issued by the competent authority in exercise of its power under Section 5(1) of the OST Act, the particulars of the serial number and the rate of sales tax on which reliance is placed by t....
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....tion/natural decay. Since during the process of grinding there is depletion of calcium and iron in the micro quantities resulting in nutritional loss, some quantity of calcium and iron are added to the barley powder by replenishment. The sole purpose of such replenishment of iron and calcium in micro quantity is to bring the barley powder in its original form. Thus barley does not undergo any chemical treatment. The net effect is that barley powder remains as barley powder in spite of the fortification with iron and calcium by way of replenishment. This patented as Robinson's Barley and sold in sealed containers in the market. In order to preserve and protect the barley powder from natural decay, the same are packed in sealed container as per statutory requirement. The barley-Robinsons' Barley and Purity Barley sold by the Petitioner are essentially barley derived from cereal barley grain." 10. It must be noted that a Division Bench of this Court in Satyanarayan Bhandar v. State of Orissa (2007) 5 VST 83 (Ori) was dealing with a similar question viz., whether Robinson Barley could be classified under Sl.No.16 (as it was at the relevant time), "Cereals other than wheat, paddy, r....
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....he Petitioner since "Robinson Barely is regarded as a new commodity in the market and the same is different from the original commodity, namely, Barley". 13. This Court in Satyanarayan Bhandar (supra) also distinguished the decision in Alladi Venkateswarlu v. Government of Andhra Pradesh (1978) 41 STC 394 where the question was whether parched and puffed rice were in fact rice within the meaning of Entry 66 (b) of the First Schedule to the Andhra Pradesh General Sales Tax Act, 1957. This Court in Satyanarayan Bhandar (supra) pointed out that in Alladi Venkateswarlu (supra), the Supreme Court held that rice as ordinarily understood in the English language would include both parched and puffed rice , "but in the instant case between the barely as a cereal and Robinson Barley as a commercial entity substantial chemical transformation has taken place and it is not in dispute that Robinson Barley is a distinct commercial entity and before it is tinned and sold as Robinson barely, barley is processed and added with iron and calcium. Therefore, Robinson barley and barley are not the same items." 14. Consequently, even the decision in Alladi Venkateswarlu (supra) was held not to help the....
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.... than wheat, paddy, rice/broken rice, jowar, suan, gurji, kangu, ragi and maize". It is therefore, futile for the Petitioner to contend that the decision in Satyanarayan Bhandar (supra) cannot be relied upon by the Department in the present case. 17. In view of the above discussion, the Court declines the submission of Mr. Mahanti that this Court must refer to a larger Bench the question of the correctness of the decision in Satyanarayan Bhandar (supra). 18. The next attempt by Mr. Mahanti, learned Senior Counsel was to rely on the following five principles relating to classification: "(a) Plain meaning to be given to the taxing provision; (b) Burden to prove classification in a particular entry is always on the Revenue; (c) Any ambiguity has to be resolved in favour of the assessee; (d) Resort to residuary entry is to be taken as a last measure; and (e) Specify entry will override a general entry." 19. In the present case, as correctly noted in the judgment in Satyanarayan Bhandar (supra), the words used by the legislature in the delineation of articles are to be understood in the 'trade sense' i.e. the commercial understanding of the terms used and not in their scien....
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....can be had to a residuary entry only when by liberal construction, the specific entry cannot cover the goods in question. Here the issue does not arise after the decision in Satyanarayan Bhandar (supra). The question of having resort to any specific entry by 'liberal construction' does not arise since the product in question is a distinct commercial product different from the plain cereal 'Barley'. Likewise, the reliance placed in the case of CTO v. Jalani Enterprises (2011) 4 SCC 386 is also to no avail. As far as the decision in Commissioner, Trade Tax, U.P. v. National Cereal Product (2005) 3 SCC 366 is concerned, the question there was whether malt was a food grain for the purposes of Section 14 CST Act. Further the question arose in the context of certain notifications, applicable in that case, which contained a definition of 'food grain' which was wider than in Section 14, CST Act. The Court does not consider the above decision in Commissioner, Trade Tax, U.P. v. National Cereal Product (supra) to be helpful to the Petitioner either. 22. The attempt next by Mr. Mahanti was to persuade this Court that the decision of the Supreme Court in Rajasthan Roller and Flour Mills (supr....