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2016 (12) TMI 1740 - HC - VAT and Sales TaxClassification of goods - potato chips, kurkure and cheetos masala balls and other flavours known as namkins - claim of assessee is that it falls within a specific heading “Deshi sweetmeats, kulfi, ice-cream and namkins” irrespective of use of preservative, and was liable for a rate of 6%, whereas the claim of Revenue has been that it falls under a generic entry “preserved food articles”, and was liable to be taxed @ 12%. Whether product of the appellant-company viz. 'kurkure', 'potato chips' and 'cheetos' fall in the category of Entry 78 of Notification dated 25.10.2000 and does not come within the ambit of Entry 150 of the said Notification? Held that:- I do concur with the arguments of the learned counsel for the Revenue that the product in which the assessee is dealing, though technically can be said to be namkin but taking into consideration the specific entry under the Act, it can only be placed in the category of “preserved food article” because the assessee for whatever reasons adds number of preservatives and nitrogen gas may be for purposes that it lasts longer, but adding preservatives and nitrogen is sufficient to hold that it may fall within category of entry 150 of “preserved food article”. Common parlance understanding - Held that:- The Apex court time and again has observed that in cases like this, test of “common parlance” is to be applied and taking into consideration, if we apply the common parlance test, if a consumer goes to market and asks for namkin, normally the shopkeeper who may be selling both locally made namkin bikaneri bhujia, chana dal, chewra etc. as also the product of assessee, will immediately provide “bikaneri bhujia, chana dal, chewra” etc. and only if one specifically asks for “potato chips, kurkure and cheetos” etc., then the shopkeeper may give such items otherwise the product of namkin like sev, bikaneri bhujia, mogar etc. would immediately be given by the shopkeeper. Even normal ordinary meaning of namkin in my view is bikaneri bhujia, chana dal, chewra or a similar product. Thus, potato chips, kurkure and cheetos can clearly be said to be “food articles” and though may be that it may taste like a namkin, but cannot really be said to be pure and simple namkin, it can only be classified to be falling in the category of “food articles” - the question of law is required to be answered against the assessee and in favour of the Revenue - petition dismissed - decided against petitioner.
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