TMI Blog2013 (10) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... ms being sold under the brand name, the products viz., Peppy, Cheese Balls, Senon Papito, Tortilla Chips and Peppy Eatos, as branded food products, attract tax at 12.5%, falling under the residuary clause under Sl.No.69, Part C of First Schedule to the Act - Decided against assessee. - Tax Case (Revision) No.380 of 2011 - - - Dated:- 22-8-2013 - Chitra Venkataraman And K. B. K. Vasuki,JJ. For the Petitioner : Mr. V. Sundareswaran For the Respondent : Mr. A. R. Jayaprathap Government Advocate ORDER (The Order of the Court was made by Chitra Venkataraman, J.) The assessee is on revision as against the order of the Sales Tax Appellate Tribunal relating to the assessment year 2007-08 raising the following questions of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Appellate Deputy Commissioner, questioning the rate of tax contending that these products are wholly made of corn or maize. The assessee contented that Appalam, Papad, Vadam and Vathal which falls under item Sl.No.4 of Part B under IV Schedule, is totally exempt from tax; that the maize products sold under the brand name of PEPPY, Cheese Balls, Senon Papito, Tortilla Chips, Peppy Eatos etc., all are maize products, assessable under Sl.No. 80, Part B First Schedule to the Act at 4%; that the Entry does not say anything that frying or flavouring would make the maize product different by reason of which it may not fall under Serial No.80 of Part B of First Schedule to the Act. It further contended that just because the maize product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal further pointed out that the assessee had pasted the label 'maize product' manually on the packing material to establish that the products sold are maize products only. It was further pointed out that in one sample, the cheese balls are sold under the brand name "Peppy" and another under the brand name "Tortilla Chips". Thus being ready to eat snack items and being branded items, they are liable to be assessed at 12.5% tax. Aggrieved by this, the present Tax Case (Revision) is preferred by the assessee. 7. Learned counsel appearing for the assessee placed before us the decision of the Supreme Court in the case of Collector of Central Excise Vs. Protein Products of India reported in 1988 (38) E.L.T.749 (S.C.) to emphasise on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the brand names is nothing but maize products, liable to be assessed under Sl.No.80 Part B of the First Schedule to the Act. He also took us through the manufacturing process of Tortilla Chips and Cheese Balls. In the case of Cheese Balls, after grinding the whole maize, the same is round shaped as corn balls and to this, cheese flavour and the vegetable oil are added; in the case of Tortilla Chips, after grinding the whole maize, the same is made into a thick paste, they are cut into required shape and baked in oven, thereafter flash frying in vegetable oil and seasoning, the product is packed. 9. As pointed out rightly by the Sales Tax Appellate Tribunal, the item in question, even though are maize based, that, by itself, does not make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the First Schedule to the Act. 12. The judgment of the Apex Court in the case of Collector of Central Excise Vs. Protein Products of India reported in 1988 (38) E.L.T. 749 (S.C), will not be of any assistance to the case on hand. The judgment reported in 1988 (38) E.L.T. 749 (S.C) (cited supra) relates to ossein and gelatine manufacture out of bones. The exemption entry in the Notification dealt with crushed bones and bone products. The Apex Court held that the "Bone Products" does not mean that the products must contain visible pieces of bones and that the expression will include all the derivatives from bone. The Apex Court pointed out that there was no logic or principle in holding that only products obtained by a physical treatment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em like what has been dealt with by the assessee could no longer be treated as maize product and that the hand pasted label further went against the very veracity of the contention of the assesee. 15. In the circumstances, we do not find any justifiable ground in the plea of the assessee that the item would fall under Sl.No.80, Part B of the First Schedule to the Act. On the admitted fact that the items in question are sold under the brand name, in the absence of any Entry in the Schedule to cover such items, residuary item will have relevance for the purpose of fixing the rate of tax. Even though in normal circumstances, the item in question would fall under Sl.No.51, Part-B, First Schedule to the Act, yet, on the admitted case, the item ..... X X X X Extracts X X X X X X X X Extracts X X X X
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