TaxTMI 
TaxTMI 
2023 (10) TMI 1448
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...., just because similar contention was turned down while interpreting different entries under the erstwhile Rajasthan Sales Tax Act, 1994? (ii) Whether the learned Tax Board is right in adopting a restricted meaning for the term "namkeen" in interpreting the scope of Entry 131 of the Schedule IV?" 2. As common issue of classification of 'Kurkure' and 'Cheetos' is involved in all these STRs, with the consent of the parties, they were heard together and are now being decided by way of this common order. STR No. 119/2020 is taken as lead file to peruse the facts. 3. Learned counsel for the petitioner-assessee submits that the petitioner-assessee is a private limited company incorporated under the provisions of the Indian Companies Act 1956 having registered office at Gurugram, Haryana (formerly known as 'Gurgaon') and having its principal place of business in the State of Rajasthan at Jaipur. The petitioner-assessee is also a registered dealer under the RVAT Act and is engaged in the sale of various food products, including the goods in question, i.e. 'Kurkure' and 'Cheetos'. The petitioner-assessee is also engaged in the sale of branded potato chips, which are sold under the brand....
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....ominently displayed and the ingredients used therein also establishes that the goods in question would be considered 'namkeen'. The FSSAI license classifying the goods in question as namkeen is also highlighted by learned counsel for the petitioner-assessee. Learned counsel for the petitioner-assessee further submits that as per Hon'ble Supreme Court judgments of Parle Agro (P) Ltd. and Ors. vs. Commissioner of Commercial Taxes, Trivandrum and Ors. (Neutral Citation: 2017/INSC/458) reported in 2017 (352) ELT 113 (SC), Commissioner of Central Excise vs. Hindustan Lever Ltd. (Neutral Citation: 2015/INSC/606) reported in 2015 (323) ELT 209 (SC), and Muller and Phipps (India) Ltd. vs. The Collector of Central Excise, Bombay-I reported in 2004 (167) ELT 374 (SC), reliance can be placed on relevant food laws to determine the classification of food products. In furtherance of the submission that the goods in question would be considered namkeen, reliance is also placed on judgment of Hon'ble Supreme Court in Commissioner of Central Excise, Pune-II vs. Frito Lays India reported in (2009) 10 SCC 752 and judgment of CESTAT Delhi in Pepsi Foods Ltd. vs. Commr. of Cus. and C. Ex., Chandigarh-I....
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....further highlighted that against the Co-ordinate Bench judgment dated 22.12.2016, the petitioner-assessee has preferred an appeal which is pending adjudication with the Hon'ble Supreme Court in Civil Appeal Nos. 15693-15695 of 2017 arising out of SLP (Civil) No. 19671/2017. 4.3) The third submission of learned counsels for the petitioner-assessee is that 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 Bharat Forge and Press Industries (P) Ltd. vs. Collector of Central Excise, Baroda, Gujarat reported in 1990 (45) ELT 525 (SC), Dunlop India Ltd. vs. Union of India reported in (1976) 2 SCC 241, Mauri Yeast India Pvt. Ltd. vs. State of Uttar Pradesh reported in (2008) 5 SCC 680, Commissioner of Commercial Tax, U.P. vs. A.R. Thermosets (Pvt.) Ltd. reported in (2016) 16 SCC 122, 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 Krishi Utpadan Mandi Samiti and Ors. vs. Ved Ram reported in 2012 (277) ELT 299 (SC). It is stated that a....
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.... the Tax Board has erroneously relied upon information available on the petitioner's global website, which is headquartered in United States of America. As per the impugned order, the petitioner is selling several variants of Cheetos, which is factually incorrect as the products manufactured by the petitioner's global counterparts significantly vary in their manufacturing process and are specified to varied geographies. The said variants of Cheetos are not available or sold in India and any information gathered from the international website regarding said products sold abroad cannot be relied upon in the instant case. 4.7) The seventh submission of learned counsel for the petitioner-assessee, without prejudice to his other submissions, is that as per settled position of law, in case there are two competing entries in which the product can be classified, the one that is more beneficial to the assessee should be given preference. Reliance in this regard is placed on Apex Court judgment of Commnr. of Central Excise, Bhopal vs. Minwool Rock Fibers Ltd. reported in 2012 (3) SCALE 37. 5. Per contra, supporting the concurrent findings of the authorities below, learned counsels for the ....
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.... and unbranded namkeens." On the contrary, the respondent-revenue contends that the good in questions are snacks and because snacks are not covered under any specific entry, the same would necessarily fall under the residual/orphan entry in Schedule V to the RVAT Act. As per settled position of law, a specific entry would always trump a general entry and the burden would always be on the Revenue to prove that the goods in question would have to fall in general entry as opposed to the specific entry. 8. From the perusal of the order of the Tax Board, it appears that the decision of the learned Tax Board holding the goods in question as 'snacks' and not 'namkeen' was based on the following factors: (a) Because the same contention of petitioner-assessee, classifying the goods as 'namkeen', was rejected by Co-ordinate Bench of this Court under the erstwhile RST regime in the case of Pepsico India Holding (S.B. STR No. 194/2009; decided on 22.12.2016) (supra). (b) Because as per the information available on the petitioner's own website, Kurkure and Cheetos are snacks having various iterations/flavours. (c) Because of the ingredient mentioned on the packaging of the goods in quest....
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.... next issue which falls for consideration of this Court is whether the Revenue has successfully discharged its onus to establish that the goods in question cannot be placed in any specific entry and had to be placed in the residual entry. The Tax Board held that since the goods in questions are snacks, which do not find its place in any specific entry, the same had to be placed in residual entry. However, this conclusion of the Tax Board, in the opinion of this Court, is not supported by any cogent reason or evidence for the following reasons: 10.1. It is noted that the Revenue neither sought any technical / expert opinion, nor brought any evidence on record to prove their point. It appears that the Tax Board merely relied on a basic Google search result wherein the goods in question were described as namkeen snacks. 10.2. Reliance was also placed by the Tax Board on the description of Cheetos as snacks by the global website of petitioner-assessee. However, this Court is satisfied with the explanation put fourth by learned counsel for the petitioner-assessee that as the petitioner-assessee is a part of a global conglomerate having international presence, the description of Cheeto....