TMI Blog2015 (12) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... y a different name comes up whereas in the case of preparing Asafoetida (Hing), spices are not mixed and only Gum Arabic and Wheat Flours are added which in my view are not spices. When spices are not mixed, it remains Asafoetida (Hing) only and no new product emerges. Even if we take common and commercial parlance meaning of the term "Masala", in my view, spices/Kirana items being sold singly would not come within the meaning of the term "Packed Masala" and in common and commercial parlance, Masala is always treated to be mixing of two and more spices and since Asafoetida (Hing) is not mixture of two and more spices, therefore, it cannot be termed as a Masala. It is also worth mentioning that the claim of counsel for the respondent that in most of the States Asafoetida (Hing) finds place in the list of Kirana goods, also supports contention of the Tax Board and the arguments raised by counsel for the respondents and not disputed by the counsel for the Revenue. - Tax Board has correctly analyzed the Entry No.82 and no contrary view can be taken in the facts and circumstances of the instant petitions. When the very levy of rate of tax @ 4% has been found to be properly levied th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category of Kirana items and not Packed Masala. It was also contended that in many other States namely: Madhya Pradesh, Punjab, Gujarat, Delhi, Jharkhand, Bihar where also Asafoetida (Hing) is treated as Kirana Item and not as Packed Masala. However, the AO, on the basis that on the packet it was mentioned/printed Ram Deo Super Compunded Asafoetida Ingredients; 1-Edible Gum, Wheat Flour 30% Aprox. Best before within 11 months from the date of packaging and that it includes Edible Gum, Wheat Flour, therefore, it falls within the definition of Packed Masala and accordingly levied tax @16% and also directed for levy of interest as also penalty u/Sec.65 of the RST/VAT Act. 3. The matter was assailed in appeal before the Deputy Commissioner (Appeals) (for short, 'DC(A)'), who, however upheld the finding of the AO and rejected the appeal. 4. The matter was further carried in appeal by the respondent-assessee before the Tax Board and the Tax Board, after analyzing the facts, allowed the appeal of the assessee by holding that merely because Gum and Wheat Flour are added, it does not bring any other material, rather it remains as Asafoetida (Hing) and further that Wheat Flou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue about Asafoetida (Hing) in earlier proceedings between the same parties and the revision of the petitioner was dismissed and that order of this Court has attained finality. He relied upon the judgments rendered in the case of Shri Krishna Electricals Vs. State of Tamil Nadu and another: (2009) 23 VST 249 (SC); Commercial Taxes officer Vs. M/s. Shyam Agency: (2014) 40 Tax-Up-Date 47; CTO (A-E), Sriganganagar Vs. M/s. Durgeshwari Food Ltd. : (2012) 32 Tax Up-Date 3; and Commissioner of Central Excise, Mumbai Vs. Laljee Godhoo and company: (2007) 216 ELT 514; Municipal Corporation of City of Thane Vs. Vidyut Metallics Ltd. : (2009) 20 VST 680 (SC); Southern Sea Foods Limited Vs. Joint Commissioner of Income Tax, Chennai :(2010) 13 SCC 70 and Assistant Commissioner, Anti-Evasion, Rajasthan-3, Jaipur Vs. Honda Siel Power Products Ltd.: (2014) 76 VST 125 (Raj.). 7. I have considered the arguments advanced by counsel for the parties and have perused the impugned order as well as the judgments cited at the bar. 8. In my view, the order of the Tax Board is just and proper and is not required to be interfered with. It would be appropriate to quote the relevant Entries which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r mill where it is crushed thoroughly. This powder is then passed through a sieve, which contains magnet balls absorbing any fine iron particles. The compounded asafoetida is powder form is then packed in different grammage bottles. In case of lump form, the gum and wheat flour along with filtered water mixed with Asafoetida is poured into the sigma mixer. This process takes about 40 minutes. After this the mixture, which has by now made into lumps, is extracted and put into the aluminium trays and dried for a day before it is packed in cartons. 11. Therefore, taking into consideration the nature of Asafoetida (Hing), as described herein before, in my view, the nature of Asafoetida (Hing) does not change and only to reduce the pungence in the Asafoetida (Hing), two items are required to be mixed otherwise it is not suitable for use or day to day cooking. In my view, Packed Masala would mean a Masala where two or more ingredients are sold in packed condition, however spices are sold at the lower rate as prescribed for spices/Kirana items under Entry No.82 of the notification dt.29/03/2001. While counsel for the petitioner has relied upon judgment of the Hon'ble Apex Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it remains Asafoetida (Hing) only and no new product emerges. Therefore, the judgment does not support the contention of counsel for the petitioner 13. The Hon'ble Apex Court in the case of Commissioner of Central Excise, Mumbai Vs. Laljee Godhoo and company (supra) had an occasion to consider the issue about Asafoetida (Hing) though under the Central Excise and observed as under:- The short question which arises for determination in this civil appeal filed by the Department is whether the process to which the raw asafoetida (hing) is subjected to, resulting in the formation of compunded asafoetida , constitues manufacture under the Central Excise Act, 1944. We have gone through the process. As rightly held by the Tribunal there is no chemical change brought about by the aforestated process. The product at the starting point of the process and the product at the terminal point of the process remains the same. In the circumstances the Tribunal was right in holding that the essential character is the product remains constant and, therefore, there is no manufacture. The twin tests applicable for making the goods excisable is manufacture and marketability. The first te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the goods imported by the company were ferrous in nature and not non-ferrous and the company was right in paying octroi under item No.71. It was thus a fundamental factor and the nature of the goods imported by the company was directly and substantially in issue, on the basis of which the decision was taken. It would indeed be very difficult to hold that such a decision would not continue to operate in subsequent years unless it is shown that there are changed circumstances or the goods imported by the company in subsequent years were different than the ones which were imported earlier and in respect of which decision had been arrived at by the court. No such contention has been raised by the Corporation nor has any material been placed on record. We are, therefore, of the view that the revisional court as well as the High Court were right in giving benefit of the decision in the earlier litigation to the respondent-company. There is an additional factor also as to why the trial court was wrong and the revisional court and the High Court were right in setting aside the order passed by the trial court in the present proceedings. The revisional court in the present p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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