TMI Blog2019 (3) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... Determination Orders under section 80 of the Gujarat Value Added Tax Act, 2003 were not pertaining to classification under First Schedule to the Customs Tariff Act, 1975 and therefore are not applicable in the present case - the Un-fried Fryums are not classifiable as Papad under Tariff Item 1905 90 40. Appropriate classification of Unfried Fryums - Held that:- Heading 2106 is an omnibus heading covering all kind of edible preparations, not elsewhere specified or included. Chapter Note 5 provides an inclusive definition of this heading and covers preparations for use either directly or after processing, for human consumption. Chapter Note 6 pertaining to Tariff Item 2106 90 99 also provides inclusive definition and products mentioned therein are illustrative only - the product Un-fried Fryums is appropriately classifiable under Tariff Item 2106 90 99. Goods and Service Tax rate of 18% (CGST 9% + GGST 9% or IGST 18%) is applicable to the product Un-fried Fryums as per Sl. No. 23 of Schedule III of Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017, as amended, issued under the CGST Act, 2017 and Notification No. 1/2017-State Tax (Rate) dated 30.06.2017, as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The applicant submitted that as per their belief, Papad and papad pipes of different shapes, sizes and of all varieties (commonly known as un-fried Fryums) would be classified as under : Chapter 19 Heading No. 1905 - Bread, pastry, cakes, biscuits and other bakers wares, whether or not containing cocoa; communion wafers, empty cachets of kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products Sub-heading No. 1905 90 40 Papad Sub-heading No. 1905 90 90 Others 2.3 The applicant submitted that they manufacture papad and papad pipes (commonly known as un-fried Fryums) of different shapes, sizes and varieties like Papad basket, Papad Button, Papad Smile, Papad Sudarshan Chakra, Papad Suryamukhi, Papad Snake and Ladder, Papad Chips, Papad Samosa, Papad Coin, Papad Deer, Papad Animal, Papad Moon, Papad 1-2-3-4, Papad Jali, Papad Wheel, Papad Phabets, Papad Aeroplane, Papad Polo Ring Button, Papad Katori, Papad Bamboo, Papad Badi Sev, Papad Refil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry Papad and exempted from tax. 2.7 The applicant further submitted that the Hon ble Commissioner of Commercial Tax, Gujarat State, Ahmedabad, in the Determination Order under Section 80 of the VAT Act, 2003 in the case of Jay Khodiyar Agency (2007-D-98-103 dated 11.09.2007) and in the case of Kansara Trading Co. (2011-D-356-357 dated 11.02.2011) held that papad and papad pipes (Fryms) are covered under Entry 9(2) of Schedule-1 appended to the VAT Act, 2003 and exempted from tax. 2.8 The applicant submitted that referring to sub heading No. 1905 90 40 or 1905 90 90 and Hon ble Supreme Court decision, Karnataka High Court decision and Determination Order under section 80 of the VAT Act, 2003, it is apparently clear that papad, papad pipes (commonly known as un-fried fryms) of all kinds, shapes, sizes and varieties by whatever name called would be classifiable and covered under heading No. 1905 90 40 or 1905 90 90 and exempted from CGST and SGST. 3. It has been informed by the Central Goods Services Tax and Central Excise Commissionerate, Bhavnagar that no record pertaining to M/s. Sonal Products (applicant) is available with their office as the unit was not regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 981 (3) TMI 77 - SUPREME COURT OF INDIA , Hon ble Supreme Court has held as follows : 4. It is well settled that in interpreting Items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. . 8.3 This view was upheld by Hon ble Supreme Court in the case of Oswal Agro Mills Ltd. Vs. Collector of Central Excise [1993 (66) E.L.T. 37 (S.C.)] = 1993 (4) TMI 73 - SUPREME COURT OF INDIA . While reiterating the principle that in absence of statutory definitions, they have to be construed according to their common parlance understanding, Hon ble Supreme Court, in the case of Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame. 7. 8. The Sl. No. 8 reproduced above mentions about various goods coming within sub-heading 2107.91. It has given illustration to the items Namkeens such as Bhujiya, Chabena. Now the question is as to whether these namkeens given in the notification is a general one including all types of namkeens or only to the type given therein like Bhujiya, Chabena by illustration. The learned Collector has interpreted the word such as to mean namkeen should be of a kind of Bhujiya and Chabena. Although it is not in dispute that the item in question is a namkeen. As can be seen from the various items given in Sl. No. 8 namely Papad, Idli-mix, Vada-mix, Dosa-mix, Jalebi-mix, Gulabjamun-mix are all of a type which cannot be eaten straightaway but it requires to be fried. Chabena also comes in a type of item which requires to be chewed like Potato chips or fried Channa Masala or various types of fried masala dals. There can be any number of examples of namkeens in the form of Chabena which are mostly taken as a side dish. It can also be preferred to be eaten after sweetmeat. The item in question being like a Chabena is also a namkeen. The learned Collector s placin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be applied before fryums become consumable. In these circumstances the item fryums in the present case will not fall within the term cooked food under Item 2 Part I of Schedule II to the 1994 Act. It will fall under the residuary item all other goods not included in any part of Schedule I . [underlining supplied] 10.2 In this case, Hon ble Supreme Court was of the view that fryums were like seviyan . 11.1 The applicant in their application has submitted that such Un-fried Fryums are not a cooked foods, not used as ready to eat food, not an instant food article or eatable for human consumption. It is further submitted that to make the Un-fried Fryums eatable, deep frying process (in edible oil) is required; that only fried fryums are eatable and used as food articles or eatables. It is also submitted by the applicant that fried, salted or spiced fryums (referred as papad and papad pipes by the applicant) are commonly known and used as Namkin . 11.2 Thus, the applicant themselves have submitted that fried, salted or spiced fryums are commonly known and used as Namkin . On the other hand, Papad even after roasting or frying are known and used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit. 14. The Determination Orders under section 80 of the Gujarat Value Added Tax Act, 2003 were not pertaining to classification under First Schedule to the Customs Tariff Act, 1975 and therefore are not applicable in the present case. 15. Therefore, the Un-fried Fryums are not classifiable as Papad under Tariff Item 1905 90 40. 16.1 The next issue which arises for consideration is appropriate classification of Unfried Fryums . 16.2 Chapter Heading 2106 of the First Schedule to the Customs Tariff Act, 1975 is as follows :- HS Code Description of goods Unit (1) (2) (3) 2106 Food preparations not elsewhere specified or included 2106 10 00 - Protein concentrates and textured protein substances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4 Thus, Heading 2106 is an omnibus heading covering all kind of edible preparations, not elsewhere specified or included. Chapter Note 5 provides an inclusive definition of this heading and covers preparations for use either directly or after processing, for human consumption. Chapter Note 6 pertaining to Tariff Item 2106 90 99 also provides inclusive definition and products mentioned therein are illustrative only. 16.5 Taking all these aspects into consideration, we hold that the product Un-fried Fryums is appropriately classifiable under Tariff Item 2106 90 99. 17. Sl. No. 23 of Schedule III of Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017, as amended vide Notification No. 41/2017-Central Tax (Rate) dated 14.11.2017 issued under the CGST Act, 2017 and corresponding Notification No. 1/2017-State Tax (Rate) dated 30.06.2017, as amended, issued under the GGST Act, 2017 covers Food preparations not elsewhere specified or included [other than roasted gram, sweetmeats, batters including idli/dosa batter, namkeens, bhujia, mixture, chabena and similar edible preparations in ready for consumption form, khakhra, chutney powder, diabetic foods] falling under Headin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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