TMI Blog2016 (8) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... ed power form. Unless a strict meaning is given to the expression "all processed fruit and vegetables" in the form of liquid, semi-liquid paste or squash form, they would not get included in Entry No.3 of Second Schedule . In any case, concentrated powder form, by applying the common parlance test would stand on an altogether different position than any fruit or vegetable found in liquid or semi liquid, paste or squash form. Under circumstances, the contention raised that "all types of processed fruits and vegetables" would also include concentrated form of powder cannot be accepted. In so far as liquid form of Mango Juc Fit is concerned, the revisional authority has committed an error in excluding the same from Entry 3 of Third Schedule, since it is a concentrated form of mango fruit juice which is in liquid form. In view of the discussion and observation made by us hereinabove the said item would be included in the entry. However, insofar as Mango Fruit Booster, Rasna Utsav, Orange Juc-up in powder forms are concerned, since all such items are in concentrated powder form, as per the observation and discussion made by us hereinabove, such would not get included in Entry No.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts from the said entry. 5. The additional contention raised on behalf of the appellant, which can rather be said to be a preliminary contention is that the position and status of the Advance Ruling Authority is higher than Commissioner of Commercial Taxes. When the Advance Ruling Authority comprises of more than one Commissioner, which is comprising of three Commissioners, the Commissioner of Commercial Tax cannot exercise the revisional power. He submitted that the impugned order can also be said to be without jurisdiction. 6. In furtherance of this contention, learned counsel relied upon certain decisions which shall be referred to by us hereinafter at the appropriate stage to the extent found relevant. But the principal contention on interpretation of the Entry is the same as mentioned by us hereinabove. Learned counsel appearing for the respondent, supported the order by contending that the exercise of power by the Advance Ruling Authority under Section 60 of the KVAT Act is subject to the revisional power under Section 64 of the KVAT Act and therefore, it cannot be said that the Revisional Authority or the Commissioner, who has exercised revisional power, has no jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or Appellate Tribunal or any Court; (ii) relates to a transaction or issue which is designed apparently for the avoidance of tax: Provided further that no application shall be rejected under this sub-section unless an opportunity has been given to the applicant of being heard and where the application is rejected, reasons for such rejections shall be recorded in the order. (2-C) A copy of every order made under sub- section (2-B) shall be sent to the applicant and the officer concerned. (2-D) Where an application is admitted under sub-section (2-B), the Authority shall after examining such further material as may be placed before it by the applicant or obtained by the authority, pass such order as deemed fit on the questions specified in the application, after giving an opportunity to the applicant of being heard, if he so desires and also to the Assessing Authority or Registering Authority concerned. The Authority shall pass an order within ninety days of the receipt of any application and a copy of such order shall be sent to the applicant and to the officer concerned. (3) No officer or any other authority of the Department or the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is made in this section. Sub-section (4) provides that the order of the authority shall be binding on the applicant who seeks clarification. Sub-section (5) provides that the order of the authority will be binding as aforesaid unless there is a change in law or facts on the basis of which the order was passed. Sub- section (6) provides that where the authority finds that there was any fraud or misrepresentation, it may declare such order void ab initio and thereupon all the provisions of this Act shall apply to the applicant as if such order had never been passed. Sub-section (7) of the Act provides that subject to the provisions of Section 64(2) and Section 66, every order passed under this section shall be final. However, the aforesaid is by amendment of 2013, which is not applicable to the present case. Additionally it has been provided that the finality of the order shall also be subject to Section 59(4) of the KVAT Act. Since sub-section(8) is based on the amendment brought about for inclusion of Section 59(4) and sub-section (7) of Section 60, it would be relevant for the purpose of the present case. The aforesaid makes one aspect clear that the finality attached to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding anything contained in sub-section (3), the Additional Commissioner or the Commissioner may pass an order under sub-section (1) or (2), as the case may be, on any point which has not been raised and decided in an appeal or revision referred to in clause (b) of sub-section (3), before the expiry of a period of one year from the date of the order in such appeal or revision or before the expiry of a period of four years referred to in clause (c) of that sub-section, whichever is later. (5) Every order passed in revision under sub- section (1) shall, subject to the provisions of sub-section (2) of this Section and Sections 66 and 67, be final. (6) Every order passed in revision under sub- section (2) shall, subject to the provisions of Sections 65 and 66, be final. (7) If the order passed or proceedings recorded by the appropriate authority referred to in sub-section (1) or (2), involves an issue on which the High Court has given its decision adverse to the revenue in some other proceedings and an appeal to the Supreme Court against such decision of the High Court is pending, the period spent between the date of the decision of the High Court and the date of the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ism whereby finality can be attached to the order of the said Authority subject to the revisional power with the Commissioner under sub-section (2) of Section 64 of the Act. The statute expressly confers the revisional power upon the Commissioner under sub-section (2) of Section 64 of the Act against the decision of the Advance Ruling Authority under Section 60 of the Act. 12. The fact that the Advance Ruling Authority comprises of three Additional Commissioners or the fact that the power is to be exercised by the Commissioner under sub-section (2) of Section 64 of the Act against the decision of three Addl. Commissioner would hardly be relevant, since finality is attached to the decision of the Advance Ruling Authority under Section 60, subject to the power of the Commissioner under sub-section (2) of Section 64 of the Act. When the statute expressly confers the power upon the Commissioner under sub-section (2) of Section 64 against the decision of the Advance Ruling Authority under Section 60 of the Act, the contention raised by the learned Counsel for the appellant with regard to jurisdiction of the revisional authority cannot be accepted. Hence, the said contention fails. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er form would also get included in the entry. It was also contended in furtherance thereto that the definition is an inclusive definition and an expansive one and hence widest meaning may be given to the entry and if widest meaning is given, then concentrated powder of any fruit or vegetable would also get included in the entry. 17. The contention may prima facie be of substance and attractive but upon further scrutiny, it appears that whenever any entry is to be interpreted, the said entry is to be read as a whole and not by segregating the entry into different parts and by picking up certain words from the entry the meaning cannot be stressed. 18. In our view, if the earlier part of the entry viz., all processed fruits and vegetables is to be considered and given meaning, one has to also keep in mind the other words following the aforesaid expression used by the legislature for inclusion of certain specified items. It is true that the items which are specified in the entry may not be exhaustive but the character and composition of those items included have a commonality. It is on an understanding of the common features of those specified items an appropriate meaning can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paste or squash form. Under circumstances, the contention raised that all types of processed fruits and vegetables would also include concentrated form of powder cannot be accepted. 21. Learned Counsel for the appellant relied upon the decision of this Court in the case of D.A. Sons, Bangalore Vs. The Addl. Commissioner of Commercial Taxes, Zone-I, Bangalore, reported at 2013 (75) Kar.LJ page 101, wherein it was held that mango chutney and curry paste would get included in the entry and the same analogy must be applied to the present case also. 22. In our view, even if the said decision is considered, the distinguishing circumstance is that mango chutney and curry paste of different varieties are in paste form in contradistinction to the concentrated powder form of any fruits or vegetables. Therefore, the items are not analogous. 23. Another decision relied upon by the learned Counsel for the appellant is the case of G.D.Sunagar Brothers Vs. Commissioner of Commercial Taxes reported at 1991 (1) KAR.LJ page 179, which was a case concerning lime water and the question was that whether it is a chemical or not. The said decision also cannot be applied to the facts of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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