TMI Blog2016 (12) TMI 1740X X X X Extracts X X X X X X X X Extracts X X X X ..... that it lasts longer, but adding preservatives and nitrogen is sufficient to hold that it may fall within category of entry 150 of “preserved food article”. Common parlance understanding - Held that:- The Apex court time and again has observed that in cases like this, test of “common parlance” is to be applied and taking into consideration, if we apply the common parlance test, if a consumer goes to market and asks for namkin, normally the shopkeeper who may be selling both locally made namkin bikaneri bhujia, chana dal, chewra etc. as also the product of assessee, will immediately provide “bikaneri bhujia, chana dal, chewra” etc. and only if one specifically asks for “potato chips, kurkure and cheetos” etc., then the shopkeeper may give such items otherwise the product of namkin like sev, bikaneri bhujia, mogar etc. would immediately be given by the shopkeeper. Even normal ordinary meaning of namkin in my view is bikaneri bhujia, chana dal, chewra or a similar product. Thus, potato chips, kurkure and cheetos can clearly be said to be “food articles” and though may be that it may taste like a namkin, but cannot really be said to be pure and simple namkin, it can only be class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the three years and this court vide judgment and order dt 28.4.2006 while disposing the three writ petitions, however, permitted the petitioner to file appeals directly to the Rajasthan Tax Board within a period of 15 days. Accordingly, three appeals were filed before the Tax Board and the Tax Board vide impugned order held that the items in which the assessee is dealing, namely potato chips, kurkure and cheetos masala balls and other flavours known as namkins, were falling in the entry no.85 of the Notification No.F4(12)FD/Tax-Div/2001-12 dt 29.3.2001, and since the contents of all the three are same, it does not fall within the category of namkin, and would fall in the category of Preserved food articles and liable to be taxed @ 12% and accordingly upheld the finding of AO, which is assailed herein. 4. Learned counsel for the petitioner by drawing attention to the two entries, namely entry 78 which reads - Deshi sweetmeats, kulfi, ice-cream and namkins irrespective of the type of packing and use of preservative , and distinguished the residuary entry bearing no.50 to be as Preserved food articles , contended that merely because the said three items are properly packe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the very foundation falls. 4.2 Learned counsel also contended that these products have been classified as namkin under Excise law by judgments of various courts including the Supreme Court, and relied upon Commissioner of Central Excise, Calcutta v. Sharma Chemical Works, (2003) 5 SCC 60, Hindustan Ferodo Ltd. v. Collector of Central excise, Bombay (1997) 2 SCC 677, Commissioner of Central Excise, Nagpur v. Vicco Laboratories (2005) 4 SCC 17, Commissioner of Central Excise, Chennai-IV v. Hindustan Lever Limited (2015) 10 SCC 742, Damodar J. Malpani v. Collector of Central Excise 2002 (146) E.L.T. 483 (S.C.), Commissioner of Income Tax, Shillong v. Tarajan Tea Co. (P) Ltd. (1999) 2 SCC 455, CTO, Special Circle 'A , Jodhpur v. M/s Prithvi Singh 2014 (38) Pt.7 TUD 269, M/s. Bhilwara Synthetics Ltd., Bhilwara v. State of Rajasthan Another, 2015 (42) Pt.8 TUD 227, Assistant Commissioner, Works Contract Leasing v. M/s R.S. Electricals [STR 73/2011, decided on 13.12.2013]. 5. Per contra, learned counsel for the Revenue contended that once the goods are packed using a special packing and filled with nitrogen gas to retain the freshness of the products contained in the packe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Entry 150 of the said Notification. 8. Though learned counsel for the petitioner has argued that in the instant petitions there was no justification for issuing notice u/s 30 and in reopening the assessment, particularly in view of the fact that the original assessment was completed taking into consideration all facts and material including the issue raised in the instant assessment year on the basis of reassessment and when all facts and material were available with the AO originally assessing, there was no question of reopening of the assessment. 9. Be that as it may, the question of law framed and admitted by this court, as quoted in para 7 hereinbefore, is only restricted to the merits of the case and this court was not even prima facie satisfied about the question of law raised by the petitioner itself, insofar as reopening of the assessment is concerned. This being a revision petition, the court has a limited jurisdiction to answer only those questions of law which emerge on the facts found. 10. The petitions of the assessee were admitted on 11.3.2010 and over the years no attempt was made by the learned counsel for the petitioner to raise question relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006 has introduced entry 131 included dried potato chips, would essentially mean that even the State Government felt that unbranded potato chips or unbranded namkin can be taken into a different category as that of the product which is being produced by the assessee. 15. The reliance placed by the learned counsel for the petitioner about some certificates referred to earlier of similar situated producers/association, in my view cannot be taken into consideration or support the claim of the assessee as specific entry is required to be considered and such certificates are merely selfserving statements/certificates. 16. The apex court in the case of M/s. Pappu Sweets and Biscuits (supra) has held that the word used in the provision, imposing taxes or granting exemption should be understood in the same way for which they are understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. The question which had arisen before the apex court for consideration was whether nonalcoholic beverage are food products or food preparations in terms of Central Excise Notification No. 55/75 dt 1.3.75, apex court observed that nonalcoholi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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