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TMI Blog2018 (9) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and affirmed by the revisional authority following and complying the determination order dated 30.9.2005 passed by the Commissioner of Commercial Tax under Section 68 of the Commercial Tax Act, 1994 (hereinafter called as 'the Act of 1994') read with the provisions of the Act of 1976 is unsustainable and bad in law. He would further submit that "frooti" being a fruit juice based ready to serve drink, the same in view of the treatment under the laws regulating manufacture and sale of fruit products as also treatment given to such products by the legislature, cannot be classified in the category of 'non-alcoholic beverages and drinks'. He would also submit that there is no specific entry for classification of fruit products/fruit juice based ready to serve drinks, the commodity frooti is outside Schedule II of the Entry Tax Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme 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 the onus of proof lies on the Revenue. Their Lordships of the Supreme Court succinctly held as under: - "12. We have heard the parties and considered the submissions made by them. We have also read the opinion of the majority Bench and the minority opinion of the Technical Member. It is a settled law that the onus or burden to show that a product fall within a particular Tariff Item is always on the revenue. Mere fact that a product is sold across the counters and not under a Doctors prescription does not by itself lead to the conclusion that it is not a medicament. We are also in agreement with the submission of Mr. Lakshmikumaran that merely because the percentage of medicament in a product is less does not ipso facto mean that the product is not a medicament. Generally the percentage or dosage of the medicament will be such as can be absorbed by the human body. The me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cover only those category of goods which clearly fall outside the ambit of the main entry. The opinion proceeds further to state that unless the Revenue can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort cannot be made to the residuary entry." 12. It is not in dispute and very well-settled principle of law that when two views are possible, one which favours the assessee should be adopted. (See Bihar SEB v. Usha Martin Industries (1997) 5 SCC 289 and Mauri Yeast India Private Limited (supra).) 13. In Mauri Yeast India Private Limited (supra), the Supreme Court has finally concluded that if there is a conflict between two entries, the course adopted to be followed would be as follows: - "56. We, therefore, are of the opinion that if there is a conflict between two entries one leading to an opinion that it comes within the purview of the tari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities 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 authorities are justified in holding so. 19. Learned counsel for the petitioners placing reliance in Parle Agro Private Limited (supra) would submit that "frooti" would be outside of the said entry and would fall within residuary entry of schedule as common parlance meaning would be applied rather technical meaning would apply. 20. In the said judgment (supra) Their Lordships however laid-down the principles in that regard by holding as under:- "37. The principle of statutory with regard to a word of taxing statutes are well established. This Court in Porritts & Spencer (Asia) Ltd v. State of Haryana (1979) 1 SCC 82 has laid down following in para 6: "6.......Where a word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the legislature." Their Lordships further held that entries which con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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