TMI Blog2012 (6) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... te of U.P. [2008 (4) TMI 101 - SUPREME COURT] the apex court has opined that where two logical opinions are possible in respect of an item whether the same is covered under a specific entry or a residuary entry, the former is to be preferred. As such the trial court has rightly held that tomato sauce being a processed and preserved vegetable is covered under entry 6, and circular letter dated May 30, 2009, being against the spirit of entry 6 of Schedule IIB to the Value Added Tax Act, is liable to be quashed. The impugned order passed by the learned single judge, does not require any interference. Appeal dismissed. - Special Appeal No. 27 of 2012 - - - Dated:- 5-6-2012 - PRAFULLA C. PANT AND SERVESH KUMAR GUPTA, JJ. For the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of Schedule IIB to the Uttarakhand Value Added Tax Act, 2005 (for short, the VAT Act ). The said entry covers all processed and preserved vegetables, besides vegetable mushrooms and fruits including fruit jams, jellies, fruit squash, paste, fruit drinks and fruit juices and achar (whether in sealed container or otherwise). However, the assessing authority did not accept the contention of the assessee and charged the tax under the category of unclassified items. The basis of charging the tax at the rate of 12.5 per cent was the circular letter dated May 30, 2009. It appears that the aggrieved by the said order dated July 8, 2009, passed by the assessing authority (Deputy Commissioner, Assessment Commercial Taxes, Rishikesh), the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and preserved vegetables, vegetable mushrooms and fruits including fruit jams, jellies, fruit squash, paste, fruit drinks and fruit juices and achar (whether in sealed container or otherwise). The rate of tax for such items is four per cent. 8. The learned counsel for the State argued that tomato sauce is not mentioned in entry 6, and as such is not covered under the said entry. In this connection, it is further argued that tomato sauce is an unclassified item on which tax is payable at the rate of 12.5 per cent. 9. On the other hand, on behalf of the assessee it is contended that tomato sauce is nothing but processed tomato, as such, the impugned circular on the basis of which tomato sauce was to be treated as unclassified item wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riff entry 68. This, as mentioned already, is the residuary entry and only such goods as cannot be brought under the various specific entries in the tariff should be attempted to be brought under the residuary entry. In other words, unless the Department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort cannot be had to the residuary item. . . 13. Also, in Mauri Yeast India Pvt. Ltd. v. State of U.P. [2008] 14 VST 259 (SC); [2008] UPTC 729, the apex court has opined that where two logical opinions are possible in respect of an item whether the same is covered under a specific entry or a residuary entry, the former is to be preferred. As such the trial cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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