TMI Blog2017 (9) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... it is an eatable product, as claimed by the Revenue, is not well reasoned. These products as they stand, cannot be taken alone, but mostly mixed with milk or other drinks. By adding these products to milk, the taste of milk which normally the children do not like, enhances the taste and deliciousness of the milk and merely because these products supplies some nourishment or sustenance, it cannot be said to be an eatable product. It is true that these products are not used by common people and by & large taken by people other than common people - the claim of assessees that the above products do not fall in entry 184/186, is well reasoned - appeal dismissed - decided against Revenue. - S.B. Sales Tax Revision / Reference No. 204 / 2014, S.B. Sales Tax Revision / Reference No. 447 / 2008, S.B. Sales Tax Revision / Reference No. 450 / 2008, S.B. Sales Tax Revision / Reference No. 21, 22, 23/ 2014 - - - Dated:- 7-4-2017 - Hon'ble Mr. Justice Jainendra Kumar Ranka For the Petitioner : Mr. R.B. Mathur with Ms. Meenal Ghiya For the Respondent : Mr. Vivek Singhal Mr. Sarvesh Jain ORDER 1. In both the batch of cases, the issue being identical, is being decided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egorised as eatables non-alcoholic potable liquids falling in the same category as that of fruit syrups, distilled juices, jams (chatani, murabbas), fruit juices, drink concentrates etc. 7. A show cause notice was given by the Assessing Officer as to why the above products be not taken into entry 184/186 of notification dt 22.3.2002 and be not taxed @ 16%. A detailed explanation was furnished by the assessee, inter alia, claiming that the products are not covered under entry 184/186 and these are dietary supplements only and are basically prescribed by doctors and specially Mileage Drinking Powder is only for women (females), that too, to be taken at the time of pregnancy, lactation, malnutrition and post-operative condition. However, the AO was not satisfied and categorised the same to be falling in entry 184/186 with the rate chargeable @ 16%, and accordingly levied tax @ 16% and simultaneously also charged interest as well as penalty u/s 61 of the RST Act, 1994. 8. The matter was assailed by the respective assessees before the Dy. Commissioner (Appeals), who however, was satisfied that the products do not fall in entry 184/186 and accordingly held in favour of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments in State of Gujarat v. Gokaldas Trading Co. 1991 (82) STC 248 (Guj), CCE v. Amar Bitumen Allied Products P. Ltd. Others [2007] 9 RC 40, The State of Tamilnadu v. Jayesh Brothers (2012) 50 VST 122 (Mad), Varun Beverages Ltd. v. Commissioner of Value Added Tax 2014 (305) E.L.T. 433 (Del). 12. I have considered the arguments advanced by the learned counsel for the parties and have perused the material on record. It would be appropriate to quote the entries, as they stand :- 184 All kinds of eatables non-alcoholic potable liquids such as fruit syrups, destilled juices, jams (chatani, murabbas), fruit juices, drink concentrates of all types and forms, essences, concentrates, corn flakes and wheat flakes, custard powder, baking powder, ice-cream poder and packed masala. 16% 186 All kind of eatables non-alcoholic potable liquids such fruit syrups, distilled juices, jams (chatani, Murabbas) fruit, juices, drink concentrates of all types and forms essences, concentrates, corn flakes and wheat flakes, custard powder, baking powder, ice cream powder and packed masala. 16% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Apex court in the case of Bharat Sanchar Nigam Ltd. Anr v. UOI Ors (2006) 3 SCC 1, has held that once a claim has been allowed repeatedly, it should not be reversed unless compelling circumstances are brought on record and distinguishing features are brought on record. It would be appropriate to quote the relevant paras of the said judgment, which reads ad infra :- 20. The decisions cited have uniformly held that res judicata does not apply in matters pertaining to tax for different assessment years because res judicata applies to debar Courts from entertaining issues on the same cause of action whereas the cause of action for each assessment year is distinct. The Courts will generally adopt an earlier pronouncement of the law or a conclusion of fact unless there is a new ground urged or a material change in the factual position. The reason why Courts have held parties to the opinion expressed in a decision in one assessment year to the same opinion in a subsequent year is not because of any principle of res judicata but because of the theory of precedent or the precedential value of the earlier pronouncement. Where facts and law in a subsequent assessment year are t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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