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2017 (1) TMI 784 - MADHYA PRADESH HIGH COURT

2017 (1) TMI 784 - MADHYA PRADESH HIGH COURT - TMI - Classification of deoiled cake - tax free commodity specified in Entry No.3, Schedule I of the MP VAT Act, 2002 or not? - is it correct to hold that the product is superior quality of deoiled cake is sold in the name and style of defatted soya products or hypro soya products - Held that: - goods specified in Entry-3 are 'Deoiled Cake including soya meal' and the expression 'Deoiled cake' is a generic expression which would include different ty .....

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Sharma And Mr. Rajeev Kumar Dubey, JJ. ORDER Per S. C. Sharma, J. The petitioner No.1 before this Court is an Association of Soyabean Processors and it is incorporated and registered u/S. 25 of the Companies Act. Petitioner No.2 is again a Company incorporated and registered under the Companies Act 1956 and the present petition has been filed, as stated in the Writ Petition, for protecting the interest of its Members who are manufacturing Soya Oil and Deoiled Cake including Defatted Soya Flakes .....

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terms of higher protein percentage with some modification in the manufacturing process ie., dehulling of seeds. It has been further stated that superior quality of deoiled cake is sold in the name and style of defatted soya products or hypro soya products. It has been further stated that under the M.P. VAT Act, so far as classification of deoiled cake for the purpose of taxation is concerned, the same is a tax free commodity specified in Entry No.3, Schedule I of the MP VAT Act, 2002. Entry No. .....

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x rebate in respect of input tax required to be paid to the purchasing dealer in view of the special provision contained in Sec. 14 (1B) of the Act. A notification has also been issued by the State Government on 1/4/2011 whereby Soya DOC has been notified for the purpose of Sec. 14(1B) and the manufactures of Soya DOC are entitled to claim full ITR in respect of input taxes paid by them for purchase of raw-material ie. Soya Seeds. Further contention of the petitioners is that as per Sec. 26A of .....

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h deduction of tax, the purchasing dealer of such notified goods is required to deposit such amount deducted which is over and above the input tax rebate notionally admissible u/S. 14 on such purchases and is entitled to retain as refund the amount deducted by him ie., equal to notional ITR admissible u/S. 14 on such purchases. Soyabean has been notified for the purpose of said provisions of Sec. 26A by Notification dt. 4/1/2008, meaning thereby, the cumulative effect of the provision of Sec. 14 .....

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have claimed such benefits in the past, however, to the utter surprise, the Commissioner of Commercial Tax has issued notice u/S. 70 to the petitioner and after hearing the petitioners, he has passed the impugned order. The learned Commissioner by the impugned order dt. 26/6/2014 has arrived at a conclusion that the Defatted Soyabean products which are superior in quality and sold in market under different names cannot be said to be DOC or Soyabean Meal according to common parlance and classifi .....

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e test applied by the Commissioner is bad in law. The respondents have also filed a reply and their contention is that since different manufacturing process has been adopted for the production of defatted soya products or hypro soya products, the same cannot be termed as higher quality soyabean DOC. Respondents have further stated that the Commissioner has rightly held that while producing Soya DOC, there is no such process of de-hulling of soyabean, whereas, while manufacturing of defatted soya .....

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seeds and has established soya extraction plants in Madhya Pradesh. During the course of extraction of oil from oil seeds, a product called De-oiled Cake (DOC) is also generated. Certain processors, for getting a superior quality of soya DOC, in terms of higher protein percentage, make slight modification in manufacturing process, viz., dehulling which enhances protein percentage in the DOC, without adding any other material. Such DOC with higher protein percentage is sold in the market as defat .....

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petitioner is that the products in question are nothing but superior varieties of DOC and continue to fell in the category 'De-oiled Cake including soya meal'. Submission of the petitioner that merely on the basis of commercial name of the product and the price of the product, the same cannot be treated different from normal DOC. The term 'DOC' is itself a wider term and would cover all its forms. Learned counsel for the petitioner has placed reliance upon the judgment delivered .....

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mposition. The term 'rice' is wide enough to include rice in its various forms whether edible or inedible. Rice in the form of grain is not edible. Parched rice and puffed rice are edible but rice in Entry 66 of the Andhra Pradesh Act is wide enough to cover both forms of rice. The term rice as ordinarily understood in English language would include both parched and puffed rice. In the present case, the defatted hypro soya products which are merely superior qualities of DOC itself obtain .....

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ntry pertaining to Bitumen. The apex Court opined that Bitumen is a generic expression which would include different types of bitumen. The nature and composition of product and the item specified in the entry is important. Matching of the goods with the entry in the schedules is tested on the basis of identity of the goods in question in the entry and by applying common parlance. Where such similarity with popular sense meaning exists, the generic entry would be construed as including the goods .....

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