TMI Blog2011 (10) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... returns filed under the M.P. Commercial Tax Act, 1994 (for short, the Act ), the petitioner had treated chewing gums and bubblegums as covered by entry 5 of Part VII of the Second Schedule taxable at eight per cent. The assessing officer completed the assessment by order dated October 29, 2002, treating these items covered by entry 21 of Part IV of the Second Schedule of the Act for the period May 11, 1998 to December 31, 1999, under entry 23, Part III of the Second Schedule for the period January 1, 2000 to March 14, 2000 and under entry 14 of Part III of the Second Schedule for the period March 15, 2000 to March 31, 2000 and levying tax at 12 per cent. The petitioner had challenged the assessment order in revision before the Additional C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included in Schedule I or any other part of this Schedule 8% Entries covering lozenges during relevant period Entry No. 21, Part IV, Schedule II (April 1, 1999 to December 31, 1999) (I) Cakes and pastries, (i) Biscuites, chocolates, toffees, lozenges and peppermint drops whether sold loose or in sealed containers (ii) Bakery goods other than bread and the goods mentioned in (i) and (ii) above. . . 12% Entry No. 23, Part III, Schedule II (January 1, 2000 to March 14, 2000) (i) Cakes and pastries (ii) Biscuites, chocolates, toffees, lozenges and peppermint/drops whether sold loose or in sealed containers (iii) Bakery goods other than unbranded bread and the goods mentioned in (i) and (ii) above. . . 12% Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yana reported in [1973] 32 STC 623 (SC); [1974] 3 SCC 620, Filterco v. Commissioner of Sales Tax, Madhya Pradesh reported in [1986] 61 STC 318 (SC); [1986] 2 SCC 103 and Pappu Sweets and Biscuits v. Commissioner of Trade Tax, U.P., Lucknow reported in [1998] 111 STC425 (SC); [1998] 7 SCC 228). Keeping in view the aforesaid, it is to be seen, if in the common parlance chewing gum and bubblegum are treated as lozenges . Chewing gum and bubblegum not only have different ingredients, taste features and characteristics, but they are also items different from lozenges in common parlance inasmuch as a customer asking for chewing gums or bubblegums would not be given lozenges by a shop keeper. The Supreme Court in the matter of Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, hold that chewing gum is an unclassified item'. The same issue had come up before the Full Bench of the M.P. Commercial Tax Appellate Board in the case of this very petitioner for another assessment period where the Full Bench of the Board, after examining the matter in detail, by order dated January 31, 2004 found that the lozenges and chewing gums/bubblegums are identified differently in common parlance. The Full Bench of the Board has held as under: 14. One can say that toffee is a kind of firm or hard sweet softnery, which when sucked or chewed dissolves in the mouth. Lozenges a rhombus or diamond shaped figure, a small sweet or medicinal tablet orange also dissolves in the mouth. Chewing gum and bubblegum is not ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other. One application of the above general principle is the doctrine of 'ejusdem generis' which say that wherever the general words are followed by particular or specific words of same nature, the general words would take its meaning from the later specific word, however this is not the case in present appeal. Here the goods or items 'bubblegums' and 'chewing gums' neither find place at all in the entry nor the entry is head by 'all kinds of confectionery'. Therefore the above principle does not apply here. 18. In view of the above factual analysis, the rulings and principles propounded by the honourable Supreme Court of India in its various judgments, the Appellate Board has come to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate order and by holding that chewing gums and bubblegums are covered under the residuary entry. It will not be out of place to mention here that the revisional authority in the present case is the same person who had passed the orders as first appellate authority for the period 1997-98 and 1998-99 which have ultimately been set aside by the Appellate Board. In view of the aforesaid analysis, we hold that chewing gums and bubblegums are not covered within the meaning of lozenges on account of their distinct popular sense meaning. The impugned assessment order dated October 29, 2002 and the revisional order dated March 17, 2003 are set aside to that extent and the assessing authority is directed to reassess the tax treating chewin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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