TMI Blog2019 (7) TMI 1670X X X X Extracts X X X X X X X X Extracts X X X X ..... now well settled viz., to apply common parlance test and the resort to residual entry only if it is not possible to bring the commodity in question in the specified entry. The Special Entry like the Special Law overrides the General Entry or the General Law. Generalia Specialibus Non Derogant , is a settled maxim for interpretation. By the Dictionary meaning and common parlance test, again there is no iota of doubt that all broken grains or cereals including oats, when cooked with water or milk will result in a food item, which can be described as Porridge . It is on the breakfast table for most of us. So, Porridge may be made of different grains and oats amongst them being one which in the present case, has been sold under the brand name of Quaker and the same cannot be ruled out of the definition of Porridge , so as to fall in the Entry 99 of III Schedule of the taxable at 5% . Again, the contention of the learned counsel for the Revenue that it is to be taxed in the residual entry is devoid of any merit. The items in question viz., Potato Chips, Salted in the brand name of Lays, Salty Kurkure and Cheetos are taxable as 'Savories' at the rate of 2 % in the Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax have to be accepted as self attested, but the authority below failed to accept it. On careful reading of Section 24(2) of PVAT Act, 2007, proviso (a), (b) and (c) clearly shows that the Assessing Authority may select either at his discretion or as directed by the Commissioner any dealer for detailed assessment for a year by scrutiny of accounts and may make best judgment assessment if so required. Further according to Section 30 of the PVAT Act, 2007, the Assessing Authority can determine to the best of its judgment the turnover which has escaped assessment and also the tax payable on such turn over. In the case on hand, according to the respondent, the appellant had wrongly classified and thereby the authority below had re-assessed the tax according to law. Therefore the said case laws will not be applicable to the present facts of the case and the contention of the appellant to that regard is not acceptable. 12. As far as the savories is concerned, the G.O. has been issued for all the cooked food items including sweets and savories. Therefore, the intention is that savories and sweets served along with the cooked foods in hotels, restaurants and other eatable places only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said G.O., he is estopped from denying its applicability. Simply we can say that as per the appellant's contention the Potato Chips i.e. Lays are the processed vegetable and they are not coming under the residuary clause but the G.O. is applicable to the goods which were already taxed at 14.5% was reduced to 2%. If it is so, the said Lays, Cheetos, Kurkure have to be taxed at earlier as 14.5% but as per the III Schedule, the processed vegetables are taxable at 4%. In the case on hand, it is not the case of the appellant that the processed vegetable taxable at 4% and they relied the G.O.Ms.No.24/F2/2013, dated 31.07.2013 and thereby the said case laws will not be applicable to the present facts of the case. The appellant has taxed the said goods at 2% by relying the said G.O.Ms.No.24/F2/2013, dated 31.07.2013. Even the potato chips are taxable at 4% as per the III Schedule, the appellant themselves admitted that the G.O.Ms.No.24/F2/2013, dated 31.07.2013 is applicable to him thereby he is not entitled to the benefits as per the III Schedule of PVAT ACT, 2007. Therefore, the Authorities submitted the appellant that Lays, Cheetos, Kurkure are savories will not be applicable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come in III Schedule. The appellant also agreed that the said G.O. will be applicable to this case. Therefore, the said Chips, Cheetos, Kurkure and Quaker Oats were earlier taxed at 14.5% as per the said G.O. If so, the G.O. certainly would contain the word all savories and sweets. Per contra, the word used as all cooked foods including savories and sweets . On careful reading of the said G.O., it reveals that cooked food includes savories and sweets and it does not include the packed branded items. 14. Therefore, as discussed above, this court is of the opinion that the grounds stated in both the memorandum of appeals are not valid grounds and the Authority below has passed the Common Order according to law and therefore, this court has no warrant to interfere with the order passed by the Authority below and accordingly, both the appeals are devoid of merits and liable to be dismissed. The Point is answered accordingly. 3. The relevant Notification issued on 31.07.2013 viz., G.O.Ms.No.25/F2/2013 by the Government of Puducherry and which is applicable to the assessment period in question before us, is also quoted below for ready reference to its relevant extent: G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the other hand intends to impose tax on these items in the residual entry at the rate of 14.5% tax, although these commodities were well covered by the aforesaid entry in the question in the Notification dated 31.07.2013. She relied upon the decisions of the Madras High Court in the case of Pepsico India Holdings Pvt. Ltd. Vs. Commissioner of Commercial Taxes in W.A.No.551 of 2009 decided on 10.11.2009, in which, the Coordinate Bench of this Court held that the Potato Chips in the brand names of Lays and Uncle Chips were taxable at the rate of 4% as processed vegetables but not in the residual entry. 6. Therefore, she submitted that as an alternate contention, the Assessee in the present case also seeks to raise such a contention that in case, the court comes to the conclusion that the items in question are not taxable as savories in the Notification dated 31.07.2013, the same should be held to be taxable at 4% as processed vegetables . 7. As far as Quaker Oats are concerned, she urged the contention that the same are taxable as Porridge at the rate of 5% in Entry 99 of III Schedule of the said Act. 8. The said decision of the Coordinate Bench of this Court Pepsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t A of IV Schedule (residual entry) of Pondicherry VAT Act, 2007. 11.Therefore, the learned counsel for the Revenue urged that even going by the common parlance test, the Potato Chips sold in Restaurants or Shops, will have a limited shelf life as against the branded Potato Chips like Lays in question sold by the Petitioner/Assessee, which themselves claim to have a long shelf life of about six months and therefore, they cannot be included in the category of items taxable at concessional rate of 2% in the Notification dated 31.07.2013 and the Revenue Authorities are also bound by the Advance Ruling of the Authority of the Department, as far as Quaker Oats are concerned, they were taxable at 14.5% in the residual category. 12.We have heard the learned counsels at length and perused the materials available on record. 13.It is undoubted and as rightly referred and relied upon by the Coordinate Bench of Madras High Court in the case of Pepsico (supra) that in order to decide the questions like the one involved in the present case, the rule of interpretation is to adopt the common parlance test and the resort to residual entry cannot be made, unless by no conceivable process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand. 17. What a common man will understand as a salty food item would be a savory and therefore, in the absence of the legislature make any such distinction about their Brand, Shelf life or additions of preservative or not, the Court cannot read in between the lines and uphold such a contention on behalf of the Revenue. We are not inclined to view these items away from the realm and coverage of the Notification dated 31.07.2013 and hold them to be taxable even as processed vegetables . Merely because the potato is a vegetable and takes a different shape by roasting or frying in the form of Chips or Salty Balls and it may, by some reasoning, can be held to be even preserved vegetable also, but nonetheless if it can be construed as an item of 'savory' in a more beneficial Notification to the Assessee like the one in hand before us of 31.07.2013, the same need not be taxed at the higher rate of 5% as processed vegetables . 18. It is again another well settled principle of interpretation that if there are two views possible, then the one which favours the subject or the Assessee deserves to be taken in preference. Since we are of the considered opinion that the item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken as Porridge or as any other item like cooked food or Savories. Nothing has been decided. It appears that the said order was passed exparte without hearing the contentions on behalf of the Assessee at all. Such Advance Ruling by the responsible officials of the Department, do not inspire any confidence and therefore, it cannot be allowed to be followed by the lower Revenue Authorities throughout the State. We deprecate the tendency of passing such cryptic orders without any discussions and reasons. Such order deserves to be quashed out of hand and therefore, we quash the said order. 21. As far as the item of Oats sold under the branded name Quakers Oats are concerned, we are also inclined to uphold and accept the contention of the learned counsel for the Assessee that the said items also deserve to be taxed item as Porridge . 22. Again, We refer the meaning of Porridge, as given in the Oxford Dictionary, which is quoted below: Porridge - a soft, thick white food that is made from a type of grain (oats) boiled with milk or water and eaten hot. 23. By the above Dictionary meaning and common parlance test, again there is no iota of doubt that all broken gra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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