TMI Blog2018 (9) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... frooti is a product covered by Entry 14 of Schedule II of the Act of 1976 - petition dismissed. - Writ Petition (T) No.4893 of 2010 - - - Dated:- 11-9-2018 - Shri Sanjay K. Agrawal J. For the Petitioners : Mr. P. M. Choudhary, Senior Advocate with Mr. Anand Prabhawalkar and Mr. Neelabh Dubey, Advocate. For the Respondents : Mr. Anand Dadariya, Deputy Govt. Advocate. C.A.V. ORDER SHRI SANJAY K. AGRAWAL 1. The taxability of drink called as frooti under Entry 14 of Schedule II of the Chhattisgarh Entry Tax Act, 1976 (hereinafter called as 'the Act of 1976') being non-alcoholic beverage at the rate of 2% held concurrently by the assessing authority and the revisional authority has been questioned by the writ petitioners in this writ petition stating that frooti being a product of fruit falls in residual entry of Schedule II of the Act of 1976 and liable to be taxed at the rate of 1%, therefore, the orders passed by the authorities levying and recovering tax at the rate of 2% are liable to be set aside. 2. Mr.P.M. Choudhari, learned Senior Counsel appearing for the petitioners, would submit that the order passed by the assessing authority a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebrated book Principles of Statutory Interpretation (14 th Edition) at page 874 has held that the taxing entries have to be construed with clarity and precision so as to maintain this exclusivity. 7. In the matter of M/s Bharat Forge and Press Industries (P) Ltd. v. Collector of Central Excise, Baroda, Gujarat (1990) 1 SCC 532 , the Supreme Court has held in no uncertain terms that only such goods which cannot be brought under the various specific entries in the tariff schedule should be attempted to be brought under the residuary entry. In other words, unless the Department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort can be had to the residuary item. 8. Likewise, in the matter of Commissioner of Central Excise, Calcutta v. Sharma Chemical Works (2003) 5 SCC 60 , the Supreme Court has held authoritatively that it is the primary and paramount responsibility of the State to first convincingly prove and establish that the item under no circumstances can be brought under any of the tariff items under the schedule of the Act. It has been further held that classification of goods and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law that in interpreting different entries, attempts shall be made to find out as to whether the same answers the description of the contents of the basic entry and only in the event it is not possible to do so, recourse to the residuary entry should be taken by way of last resort. 11. Recently, in Commissioner of Commercial Tax, Uttar Pradesh v. A.R. Thermosets Private Limited (2016) 16 SCC 122 , Their Lordships of the Supreme Court have held that residuary entry is made to cover only those category of goods which clearly fall outside the ambit of the main entry. It has been further held as under: - 20. In State of Maharashtra v. Bradma of India Ltd. (2005) 2 SCC 669 , the Court had observed that the general principle is that specific entry would override a general entry. Referring to the decision in CCE v. Wood Craft Products Ltd . (1995) 3 SCC 454 , it has been ruled that resort can be made to a residuary heading only when by liberal construction the specific entry cannot cover the goods in question. ... 21. A similar opinion has been expressed in Hindustan Poles Corpn. v. CCE (2006) 4 SCC 85 stating that residuary entry is made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Phrases , Vol. 5, beverage has been defined: Beverage in its common meaning signified liquid designed for drinking by human beings. The dictionary meaning of the word is very wide. It extends to drink of any kind except water. 17. Vide notification dated 24.9.2003, the Government of India, Ministry of Food Processing Industries has clarified that Frooti , Maaza and Slice are Ready to serve Fruit Beverage and that company has been allotted a FPO licence No. 11419 and further, the above products do not fall under the classification of either Aerated Waters or Carbonated Waters. 18. Following the principles of law laid down by the Supreme Court in A.R.Thermosets Private Limited's case (supra) noticed hereinabove in which it has been held by Their Lordships that residuary entry is made to cover only those category of goods which clearly fall outside the ambit of the main entry, in the instant case, the determination order as well as two authorities have clearly held that frooti is beverage, which is apparent from dictionary meaning of beverage and is clearly covered within Entry 14 of Schedule II of the Act of 1976 being beverage and the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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