TMI Blog2023 (10) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon by the Revenue of the Kerala High Court in the case of M/s Parisons Food Private Limited [ 2018 (1) TMI 1195 - KERALA HIGH COURT] 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. 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 that bakery shortening means and is commonly known as 'vanaspati'. The revision fails and is hereby dismissed. - Hon'ble Piyush Agrawal, J. For the Revisionist : Ravi Shanker Pand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the Revenue. 4. Learned ACSC further submits that the two authorities below have wrongly accepted the claim of the opposite party as the item is not covered under hydrogenated vegetable oil, but is unclassified item and attracts higher rate of tax. He prays for allowing the revision. 5. Per contra, learned counsel for the opposite party dealer supports the order and submits that concurrent finding of fact has been recorded by the authorities below, which cannot be interfered with in the present revision. She further submits that the opposite party has brought on record various certificates of the competent authorities literature, user certificate, detail of its manufacturing product, etc., which are not in dispute at any stage and not even before this Court in the present revision. She further submits that under section 35 of the VAT Act, a decision has been given by the Commissioner in the case of Jain Suddh and Krishna , where bakery shortening has been treated as vanaspati ghee and duly covered under Entry 130 of Part A of Schedule II. The said judgement has not been challenged or reversed by the competent authority to the best of the knowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shortening and vanaspati ghee are manufactured, which are duly certified by the Institute of Science Technology for Advance Studies Research, Gujarat, which clearly establishes that bakery shortening and vanaspati are being manufactured from the one and the same raw material, i.e., crude vegetable oil, which pass through the same process. Further certificate was also brought on record from M/s Techno Chem International, Inc. 967 Quartzave. Boone IA 50036. USA, who is one of the largest and most accredited manufacturer of machines for Vegetable Oil Oil Refineries since 1972. Their web site at 'Glossary of Field-Specific Terms' specifies the definition Hydrogenated Oils as Hydrogenates converts liquid oil into shortening (Vanaspati). It further defines shortening' as Shortening is made by Hydrogenation of Vegetable Oils. Hydrogenation makes the oil more saturated and thus more stable. Shortening is used in cooking, frying and baking preparations . This 'Glossary of Field-Specific Terms' further defines 'Vanaspati' as Shortening is known as Vanaspati Ghee' in South Asian Countries mainly India, Pakistan and Bangladesh. Vanaspati Ghee is repla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti meant for use as a shortening or Leavening Agent in the manufacturer of Bakery Products that is for promoting and the development of the desired Cellular Structure in the Bakery product with an accompanying increase its tenderness and volume . 12. In view of the above it was submitted that any goods, which is not in conformity with the Vanaspati , cannot be treated as 'Bakery Shortening'. In other words, it is essential that 'Bakery Shortening' should be in conformity with the 'Vanaspati . It is clearly evident that the chemical and physical properties of Vanaspati' and 'Bakery Shortening' are one and same, hence by any stretch of imagination they cannot be treated as two different items. 13. The Court attention is further drawn towards the definition of Bakery Shortening' as per Section 2(b), the definition of 'Hydrogenation' as per Section 2(e), the definition of Vanaspati in Section 2 (m) as per the Vegetable Oil Products (Regulation) Order, 1998 issued by the Government of India under the Provisions of Essential Commodities Act 1955. It has been strongly contended that these definitions cannot be ignored to adopt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Grounds of State Appeal, treating them as two different commodities on the basis of this logic is absolutely wrong on facts. In common and commercial parlance, both the goods, namely, Bakery Shortening' and 'Vanaspati' are being treated as same, since the person dealing with the goods in question are treating both the goods in question are treating both the goods similarly as well as both the goods are available on the same shop dealing with the vegetable ghee and therefore, the allegations as made are not correct. Therefore, the goods sold by the opposite party, namely, bakery shortening and vegetable oil are absolutely one and the same and the same cannot be treated as two different items. 17. After considering various materials brought on record from the stage of Assessing Authority to the stage of Tribunal, the Assessing Authority brushed aside the evidence brought on record and levied higher rate of tax, which has been turned down by the appellate authority after due consideration of materials on record, holding that bakery shortening is one and the same thing as vanaspati. The Apex Court in Mauri Yeast India Private Limited (supra) has specifically h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, falls under the unclassified item, but no material has been brought on record upto the stage of Tribunal or before this Court. The Apex Court in Garware Nylons Limited Others (supra) has held as under:- 15. In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. Especially in a case a this, where the claim of the assessee is borne out by the trade inquiries received by them and also the affidavits filed by persons dealing with the subject matter, a heavy burden lay upon the revenue to disprove the said materials by adducing proper evidence. Unfortunately, no such attempt was made. As stated, the evidence led in this case conclusively goe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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