TaxTMI 
TaxTMI 
TaxTMI 
2023 (10) TMI 158
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....Tribunal has wrongly dismissed the appeal of the Revenue. He further submits that the opposite party is a registered dealer and is engaged in the business of manufacture of edible oil, vanaspati ghee, including bakery shortening, coconut oil, refined oil, mustered oil, etc. and the manufacturing unit of the opposite party is at Mundra (Gujarat), Haldia (West Bengal), Andhra Pradesh, Rajasthan and Jaipur and have its branches in the State of Uttar Pradesh at various places. The main place of business in the State of U.P. is at Ghaziabad. The opposite party receives goods by way of stock transfer in the State of U.P. and made sales thereafter. He further submits that the opposite party has admitted its tax liability @ 8% on the sale of bakery shortening treating the same as covered under Entry 130 of Part - A of Schedule - II, which specifies "Vanaspati (hydrogenated vegetable oil)". He further submits that the Assessing Authority, while framing the assessment order, rejected the said claim and levied higher rate of tax @ 12.5% treating the bakery shortening as unclassified item. Aggrieved against the said order, an appeal was preferred by the opposite party - dealer, which was allow....
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....the judgement of the Apex Court in Mauri Yeast India Private Limited Vs. State of U.P. & Others [(2008) 5 SCC 680] and judgement of this Court in Commissioner of Sales Tax Vs. Adarsh Paper & Board Manufacturing Company [1987 65 STC 243 (All)]. She further submits that the judgement of Kerala High Court is not applicable in the present case as two entries are different. UP VAT Act refers spcific word "Vanaspati (hydrogenated vegetable oil)". She further relies upon two Government Orders of the Government of India dated 16.12.1998 and 30.04.2003. 6. After hearing the learned counsel for the parties, the Court has perused the records. 7. Admittedly, the issue is of a narrow compass about the tax liability of the item, i.e., as to whether bakery shortening should be covered under Entry 130, Part - A, Schedule II of UP GST Act or to be taxed as unclassified goods at a higher rate of tax, i.e., 12.5%. 8. The record reveals that the Assessing Authority has rejected the claim of 4% tax on the ground that the items are different from vegetable oil (Vanaspati Ghee) and therefore, not covered by specific entry. The record further reveals that the certificate of expert from Institute of Sci....
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....uthority as well as produced before the First Appellate Authority which have been considered in the First Appeal Order. 10. It was mentioned as a matter of fact that Vanaspati is being treated as 'Partially Hydrogenated Oil as evident from the Website of Directorate of Vanaspati, Vegetable Oil & Fats, Department of Food & Public Distribution, Government of India. The term to denote the Vanaspati has been used as 'Partially Hydrogenated Edible Oil Mixture'. It was contended by the opposite party that in the grounds of State Appeal, it has admitted that the Bakery Shortening is nothing, but 'Partially Hydrogenated Vegetable Oil' having trans-fat, which is also similar to Vanaspati, while on the other hand the 'Bakery Shortening' has been treated as different from "Vanaspati by the Assessing Authority. It is important to note that there is nothing like 'Partially Hydrogenated Oil' as wrongly assumed by the Assessing Authority to distinguish bakery shortening from Vanaspati. 11. The Court attention was drawn to the word 'Bakery Shortening' which has been defined by Government of India vide clause 2 (b) of Regulating Notification No. G.S.R. ....
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....rent commodities under the Sales Tax Law of the State is not correct. 15. It was further demonstrated before the authorities below that bakery shortening is covered under the same tariff. On the test of 'Common Parlance' the Notification No. 37/2003 dated 30.4.2003 issued by the Government of India is very important and relevant as in the said Notification the Union Government has very categorically and specifically mentioned as under:- Bakery Shortening, or partially or wholly hydrogenated vegetable fats and oils refracting thereof, commonly known as "Vanaspati" ..... The Union Government has used the word commonly known which means known and understood in the common parlance and therefore, Government of India is treating both the goods in question in common parlance as one and same commodity in the eyes of Law. 16. Further it was submitted that in spite of the fact that addition of inert gases is permitted under the Provisions of the Prevention of Food Adulteration Rules, but the inert gases are not added by the respondent company in the products during the manufacturing process as supported by certificate submitted before the lower Appellate Authorities, by the respond....
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.... upon by the Revenue of the Kerala High Court in the case of M/s Parisons Food Private Limited (supra) is distinguishable and not applicable in the present case, since the entries in both the Kerala VAT Act/UP VAT Act are different. Under the aforesaid case, entry of "others", including 'vanaspati' was interpreted by the Kerala High Court by holding that the general word "other" is followed by the specific word "including vanaspati". Hence, the definition is exhaustive, coupled with the fact that 8 digit HSN Code is provided against the said entry under the Kerala VAT Act, while under the UP VAT Act, entry is 'Vanaspati (hydrogenated vegetable oil)', which is specific word being followed by general words. Hence, it is very wide and not exhaustive. It would, thus, cover both vanaspati and vegetable oil and also, their admixtures, since the scope of entry under the UPVAT Act is not confined to 8 digit HSN code, presented under the Kerala VAT entry. 19. Further, the notifications dated 16.12.1998 and 30.04.2003 issued by the Government of India were not placed for consideration before the Kerala High Court, wherein, it has been acknowledged by the Government of India ....