2023 (5) TMI 855

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....s of the case and the proper interpretation of the term branded bakery product and the provisions of law, the Ld. Rajasthan tax Board is justified in holding that the sale of sandwich as a branded bakery product? (iii) Whether the subsequent legislature amending the notification and the rate schedule can be used for interpretation of the earlier provisions of law?" 2. The lis in question pertains to classification of 'pizza' and 'sandwich' under the Rajasthan Value Added Tax Act, 2003 (for short "RVAT"). The common issue for consideration of this Court is whether 'pizza' and 'sandwich' fall within the ambit of "cooked food" to claim benefit of exemption notification dated 09.03.2010? Since the issue involved is identical, STR No. 58/2013 is taken as lead file. 3. Learned counsels for the petitioner-assessee, at the outset, has drawn attention of this Court to the Notification No. F.12(22)FD/Tax/10-87 dated 09.03.2010 issued by Finance Department (Tax Division), which reads as under: "S.O.391- In exercise of the powers conferred by subsection (3) of section 8 of the Rajasthan Value Added Tax Act, 2003 (Act No. 4 of 2003), the State Government being of the opi....

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....ustan Lever Ltd. reported in (2015) 10 SCC 742, Commissioner of Central Excise, Calcutta vs. Sharma Chemical Works reported in [(2003) 132 STC 251 (SC)] and judgment of Division Bench of this Court in the case of State of Rajasthan and Ors. vs. Deys Medical Stores Ltd. and Ors. (DBCWP No. 2139/1999 decided on 27.07.2007). b) The second contention of the petitioner-assessee is that notification dated 09.03.2010 has used the term "food cooked by him" and the 'pizza'/'sandwich' sold by the petitioner-assessee is covered within the four corners of the said notification. It is an established cannon of classification that a specific entry would override a general entry. Reliance in this regard is placed on Apex Court judgments of State of Maharashtra vs. Bradma of India Ltd. reported in [(2005) 140 STC 17 (SC)], Hindustan Poles Corporation vs. Commissioner of Central Excise, Calcutta reported in [(2006) 145 STC 625 (SC)], and Commissioner of Central Excise Versus M/s Wockhardt Life Sciences Ltd. (sic) reported in [2012 (277) ELT 299 (SC)]. It is stated that a special entry must prevail over the general entry and that the residuary clause can be invoked only if the depa....

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....iguous or capable of more than one interpretation. Reliance in this regard is placed on Apex Court judgments of Pappu Sweets and Biscuits vs. Commissioner of Trade Tax U.P Lucknow reported in [(1998) 111 STC 425 (SC)], and V.M. Salgaocar and Bros. Pvt. Ltd. vs. Commissioner of Income Tax reported in (2000) 5 SCC 373. e.) In support of their contention that 'pizza' and 'sandwich' are cooked food, learned counsels for the petitioner-assessee have relied upon the judgments of S. Samuel and Ors. vs. Union of India (UOI) and Ors. reported in (2004) 1 SCC 256, Sat Pal Gupta and Ors. vs. State of Haryana and Ors. reported in (1982) 1 SCC 610, Nanjundeshwara Mart vs. State of Karnataka reported in [(1992) 84 STC 534 (Karnataka)], Santosh Kumar Ghosh vs. The Commercial Tax Officer and Ors reported in [(1965) 16 STC 931 (Calcutta)], Commissioner of Sales Tax, M.P. vs. Regal Dairy reported in [(1981) 47 STC 374 (M.P.)], Commissioner of Sales Tax, M.P. vs. Indore Coffee House reported in [(1981) 47 STC 375 (M.P.)], Commissioner of Sales Tax, U.P. vs. Sunhari Lal Jain reported in [(1975) 33 STC 425 (All)], Commissioner of Sales Tax, M.P. vs. Indian Coffee Workers Co-Op Society Ltd. rep....

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.... wherein, unbranded bakery products are taxable at 5%. 18. To add taste on the pizza base, spreading of different items is made on the base of pizza according to the taste of the consumer. The topping of pizza does not alter the basic character of pizza base which is bakery product. In India, Pizza is not treated as wholesome food, however, it is generally used as fast food likes snacks. 19. I have gone through the record, arguments advanced by the learned Authorized Representatives of the dealer and facts submitted by the Assessing Authority in his comments as well as opinion given by the State Level Departmental Committee. 20. As pizza is a bakery product and Domino's is brand name, hence, being a branded bakery product, it is taxable at the rate of 14%. 21. Therefore, the pizza sold by the applicant is not covered under the said notification." From the aforesaid, it appears that the Additional Commissioner arrived at the conclusion that 'pizza' is not 'cooked food' based on the following observations: (i) Cooked food is prepared by using oil/ghee and spices with application of heat by mainly through chulha or gas burner. (ii)....

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....pedia definitions was also erroneous, as per dictum of Apex Court in the case of Ponds India Ltd. (Merged with H.L. Ltd) Vs. Commissioner of Trade Tax Lucknow reported in [(2008) 15 VST 256(SC)]. Further, this Court fails to understand as to how any of the factors considered in the order dated 11.05.2011 would lead to the conclusion that 'pizza' or 'sandwich' is not 'cooked food'. The factors, as stated in para 8 above, are entirely irrelevant for determination of the products involved herein. What is shocking is that the Additional Commissioner has placed such strong reliance on factors that were themselves never proved or substantiated. Merely by stating that cooked food is necessarily prepared on gas burner, with aid of oil/ghee and spices, using exclusively fresh ingredients and then served with traditional cutlery, the Additional Commissioner arrived at the conclusion 'pizza' or 'sandwich' are not 'cooked food'. If the revenue wanted to rely on these factors, it was the duty of the revenue to prove/establish that these factors are themselves true and that these factors are essential for determination of what construes as 'cooked food'. Since the same was not done by the revenu....

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....ed or sold including home delivery thereof, under a brand name by any branded chain outlet of cooked food." A bare perusal of the above subsequent notification would reveal that the State Government had itself considered items like 'pizza' and 'sandwich' to be 'cooked food'. As rightly submitted by learned counsels for the petitioner-assessee, it is a settled position of law that subsequent legislation can be looked at in order to see what is the proper interpretation to be put upon the earlier legislation when the earlier legislation is found to be obscure or ambiguous. Since the State Government has included 'pizza' and 'sandwich' in the broad category of 'cooked food' in subsequent notifications dated 14.07.2014 and 09.03.2015, therefore the sale of 'pizza' and 'sandwich' would qualify as sale of 'cooked food' under the notification dated 09.03.2010 as well. 12. In view of the above, this Court holds that the question(s) of law framed above are answered in the favour of the petitioner-assessee and against the respondent-revenue. As a result, 'pizza' and 'sandwiches' are held to be 'cooked foods'. The consequential relief be awarded to the petitioner-assessee within a perio....

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