TMI Blog2015 (4) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... vegetables' can be accepted as an alternative to 'fresh vegetables'. The 'processed vegetables' generally available in the market are in different forms viz., canned, frozen, dried, juiced. The benefits of these processed vegetables and fruits is for convenience, longer shelf life and availability around the year. - The commodities (a) to (e) referred to above are classified as, 'commodities falling under residuary entry to the Act and exigible to the appropriate rate of tax applicable thereon' and do not fall under Entry 3 of Third Schedule to the Act - Decided in favour of Revenue. - WRIT APPEAL NO. 4627 OF 2011 (T-RES) - - - Dated:- 20-3-2015 - VINEET SARAN AND MRS. S. SUJATHA, JJ. For The Appellant : K.M. Shivayogiswamy, AGA For The Respondent : K.P. Kumar, Sr. counsel and Ms. Ashwini Patil, Adv. JUDGMENT 1. This writ appeal is filed by the State challenging the correctness of the judgment and order passed by the learned Single Judge in Writ Petition No.40521/2010 dated 10.02.2011. 2. The brief facts of the case are: - The respondent is a registered dealer under the provisions of the Karnataka Value Added Tax Act (hereinafter referred to as ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by the Commissioner of Commercial Taxes in W.P.No.40521/2010 before this Court. The learned Single Judge, by order dated 10.02.2011, allowed the writ petition filed by the respondent, setting aside the clarification issued by the Commissioner of Commercial Taxes. Against the said order passed by the learned Single Judge, wherein it is held that the commodities in question falls under Entry 3 of the III Schedule to the Act and as such exigible to levy of tax @ 4%, the State is in appeal before this Court. 4. Heard the learned counsel appearing for the parties. 5. Learned counsel Sri K M Shivayogiswamy appearing for the revenue argued that Entry No.3 of the III Schedule to the Act enumerates the goods liable to tax at 4% and the said Entry covers only the processed fruits and vegetables including fruit jams, jelly. pickle, fruits squash, paste, food drink and fruit juice as described therein and the commodities in question being snack mixes do not fall under the said Entry. It was contended that the learned Single Judge, applying the law laid down by the Hon'ble High Courts of Guwahati and Madras which is not applicable to the facts of the present case, has wrongly arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egit aloo jatpat tikki, are covered by Entry 3 to the third Schedule of the Act attracting levy of tax @ 4% or falls under the residuary entry, liable to be taxed at a higher rate? 9. Entry 3 of the third schedule to the Act reads thus: All processed fruit and vegetables including fruit jams, jelly, pickle, fruit squash, paste, fruit drink and fruit juice (whether in sealed container or otherwise) . 10. The clarification sought by the assessee is with regard to the applicability of rate of tax on the following commodities : (a) Vegit-Aloo Hara Bara Kebab (b) Vegit-Aloo Veg Cutlet (c) Vegit-Aloo Yummy Cheese Balls (d) Vegit-Aloo Mazedar Bonda (e) Vegit Aloo Jatpat Tikki which are generally known as Vegit Snack Mix. 11. The process involved in the preparation of vegit snack mix is as under: a. The potatoes are peeled trimmed and sliced to about 5/8 inches thickness. The potatoes are then cooked at a temperature between 150 degree Fahrenheit and 165 degree Fahrenheit. This is done to ensure that the starch in the potato is gelatinized. The potatoes are then cooled to stop the cooking process. After a while they are cooked again. Certain additives are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S CO. VS. STATE OF ANDHRA PRADESH reported in STC V.37 PAGE 378 has held as under : It will be noticed that the entry we have to interpret includes parts as well as accessories which are required for use in projectors or other cinematographic equipment. We think that the Andhra Pradesh High Court correctly held that the main use of the arc carbons under consideration was duly proved to be that of production of powerful light used in projectors in cinemas. The fact that they can also be used for search lights, signaling, stage lighting, or powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong. That is determined by their ordinary or commonly known purpose or user. This, as already observed by us, is evident from the fact that they are known as cinema arc carbons in the market. 15. The Hon'ble Supreme Court in the case of STATE OF U.P. AND ANOTHER VS. KORES (INDIA) LTD. reported in STC V.39 PAGE 8 has held as under: It is well settled that a word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the view that the said Judgments cited at the bar on the issue of potato chips are not applicable to the facts of the present case. 19. The learned Senior Counsel appearing for the assessee has placed much emphasis on the word including appearing in Entry 3 of the third Schedule to the Act to put forth his contention, of inclusive definition of the expression 'Processed Vegetables' being enlarged. To substantiate this contention, that the word 'including' enlarges the meaning of the words 'processed vegetables', reliance is placed on the Judgment of the Apex Court in the case of Rajasthan Taxchem Ltd. reported in (2007) 5 VST 529 (SC) and our attention was drawn to paragraph 23 of the said Judgment which reads thus : We have already extracted the definition of raw material under section 2(34) which specifically includes fuel required for the purpose of manufacture as raw material. The word includes gives a wider meaning to the words or phrases in the statute. The word includes is usually used in the interpretation clause in order to enlarge the meaning of the words in the statute. When the word include is used in the words or phrases, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for the revenue placed reliance on the judgment of this Court in the case of Raman Boards Ltd. M/S. RAMAN BOARDS LTD., VS. THE STATE OF KARNATAKA (STRP Nos.389-435/2012, D.D.20.8.2014) wherein it is held at para 38 as under :- 38. There are a number of factors which have to be taken into consideration for determining the classification of a product. For the purposes of classification, the relevant factors, inter alia are, statutory fiscal entry, the basic character, function and use of the goods. When a commodity falls within a tariff entry by virtue of the purpose for which it is put to, the end use to which the product is put to, cannot determine the classification of that product. It is well-established that in a taxing statute, there is no room for any intendment and regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the enactment. If the tax-payer is within the plain terms of the exemption, he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the construction of the words of the enactment or by necessary implication there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read as it is. Nothing could be added to enlarge the meaning of the entry. Processed vegetables denotes the ordinarily understanding of the phrase by a common man. Normally, 'processed vegetables' can be accepted as an alternative to 'fresh vegetables'. The 'processed vegetables' generally available in the market are in different forms viz., canned, frozen, dried, juiced. The benefits of these processed vegetables and fruits is for convenience, longer shelf life and availability around the year. This is the general perception of the common man as regards 'processed vegetables and fruits'. As the name of the commodity itself suggests Cutlet, kabab, bonda, cheese balls, japat tikki are all snacks and no ordinary person treats the snack mix as 'processed vegetables'. The composition of any ingredient is not determinant in classifying the commodity. It is true that in all these commodities, the processed potato is mixed with other ingredients in definite proportion and the product is known in the market as 'ready snack mix'. Mixing of potato flakes with other ingredients in a certain proportion has to be definitely construed as a manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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