TaxTMI 
TaxTMI 
2023 (8) TMI 533
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....er Section 46(1) of the said Act, was upheld. Background facts 2) The background facts are that the assessee is a registered dealer under the said statute and is engaged in trading of milk products, milk, edible oils etc. 3) One of the products, the assessee is dealing with is "milk cream". 4) The Assessing Authority of the Excise Department had completed the assessment relating to the assessee qua VAT for the Assessment Years 2005-06 to 2008-09 on 16.02.2009 & 27.01.2010, respectively. 5) Thereafter, the Excise and Taxation Commissioner wrote a letter dt. 02.07.2011 to the Additional Excise and Taxation Commissioner-cum- Revisional Authority, that the assessee was liable to pay VAT on its sales of milk cream, but is not being assessed for the previous five years. The suo-motu Revision proceedings initiated by respondent no. 1 6) Thereafter, Suo Moto Revision was entertained by the Additional Excise and Taxation Commissioner-cum-Revisional Authority (respondent no. 1) (Suo Moto Revision No.03/2011-12) on 17.09.2011, after calling for the orders passed by the Assessing Authority (2nd respondent) on 16.02.2009 & 27.01.2010 and noticing that the assessee had not d....
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....w fat milk cream sold by the assessee cannot anyway be covered under the entry of fresh milk, as cream is essentially a different form of milk, and low fat fresh cream is taxable @ 12.5%/13.75%. He held that low fat fresh cream is not covered by Entries 16 & 23 and is not exempt from payment of tax, and tax should have been levied on the sale of this item @ 12.5%/13.75%. He, therefore, revised the orders of the 2nd respondent- Assessing Authority, set them aside and remanded the matter to the Assessing Authority to pass a fresh order in view of his findings therein. The order of the HP Tax Tribunal 11) Challenging the same, the assessee filed a Revision under Section 46(3) of the Act before the Himachal Pradesh Tax Tribunal. 12) Before the Tribunal, the assessee contended that the intention of Entry 23 making fresh milk and pasteurized milk, tax free, is that milk sold in natural form should be a tax free product because nothing had been done to make the product commercially a different product. 13) It was contended that HSN Classification Entry no. 16 for the purpose of Central Excise also contains the category of fresh milk and pasteurized milk and includes within it ....
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....(1) of the Act. 21) The Revision was admitted on 24.11.2016. 22) Counsel for the assessee/petitioner firstly contended that the 1st respondent could not have exercised the suo moto revisional powers since he was exercising the same under a direction from the Excise and Taxation Commissioner and such exercise of power by the 1st respondent is, therefore, not suo moto and the said proceedings are, thus, without jurisdiction. 23) We do not agree with the said contention. 24) As per Section 46(1) of the Act, the 1st respondent may, of his own motion, call for the record of any proceedings which are pending before, or have been disposed of by, any Authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein, and on finding the proceedings or the orders prejudicial to the interest of revenue, he may pass such order in relation thereto as he may think fit. 25) Similar provision is contained in the Punjab General Sales Tax Act, 1948. 26) A Division Bench of the Punjab and Haryana High Court in Hotel Oberoi Mountview versus Assessing Authority, Union Territory, Chandigarh 1996(102) STC 0433 (P&....
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....he petitioner, did not deal with this situation and is, therefore, inapplicable. 31) So we find no merit in this contention and the same is rejected. 32) The other contention raised by the counsel for the petitioner was that there being no entry in the Act dealing with milk cream, the Central Excise HSN Classification Entry no. 16 should be taken into account and in that entry, which relates to fresh milk and pasteurized milk, the product cream is also included and, therefore, it should be taken into account, and since milk is not taxable, milk cream also ought not to be taxed. 33) Counsel for the petitioner placed reliance on the judgment of the Supreme Court in Commissioner of Central Excise, Delhi-III versus Uni Products India Ltd. (2020) SCC Online SC 429 to contend that "Harmonized Commodity Description and Coding System", Explanatory Notes issued by the World Customs Organization, have strong persuasive value and Courts can rely on them. He contended that there is a general trend of taking assistance of these Explanatory Notes to resolve entry related disputes and the Tribunal erred in refusing to place reliance on them. 34) Counsel for the respondents, however, r....