TMI Blog2022 (4) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... ue Added Tax Appeal No.5 of 2022 - - - Dated:- 21-4-2022 - Justice Vivek Rusia And Justice Anil Verma For the Appellant : Shri Vashistha Narayan Dubey, learned counsel For the Respondent/State. : Shri Manish Nair, learned Deputy Advocate General ORDER AS PER VIVEK RUSIA, J: Regard being had to the similitude in the controversy involved in the present cases, with the joint request of the parties, matters are analogously heard and being decided by this common order. Facts are being taken from VATA No.43/2020. The appellant has filed this Value Added Tax Appeal under Section 13 of the Madhya Pradesh Entry Tax Act, 1976 read with Section 53 of the Madhya Pradesh Value Added Tax Act, 2002 against (i) assessment order dated 29.10.2015 passed by the Assessing Officer in Proceeding No.52/2014/Entry tax pertaining to assessment year 2013 14 (ii) order dated 02.11.2016 passed by the Additional Commissioner Appellate Authority, Commercial Tax, Indore in First Appeal No.293/Entry tax/2015 and (iii) order dated 25.06.2020 passed by the Madhya Pradesh Commercial Tax Appellate Board, Indore in Second Appeal No.A/442/CTAB/IND/16 disallowing the claim of exemption o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Part III-A of Schedule II of the VAT Act and the same is as under:- (i) ------ (ii) liquor sold by a dealer other than a dealer who holds C.S.-2/C.S.-2B/F.L.-1/F.L.-1AAAA license under the Madhay Pradesh Excise Act, 1915. (6) ------ 2.5. The relevant part of the order dated 26.08.2016 passed in Nos.10256/2016, 10258/2016, 10260/2016 10261/2016 is reproduced below:- 2. In all the cases the petitioners are either manufacturer of IMFL or Rectified Spirit and the question involved in the writ petitions are as to whether by virtue of Entry No.18 to Schedule-I of the M.P. Commercial Tax Act, 1994 or Entry No.47 to Schedule-I of the M.P. VAT Act, 2002, the manufactured product i.e. IMFL or Rectified Spirit being an excisable article is liable to be taxed under the Commercial Tax Act, 1994 or the VAT Act, 2002 as the case may be. According to the petitioners the product in question i.e. Indian Made Foreign Liquor and Rectified Spirit being an excisable article under the M.P. Excise Act, it is exempted from payment of duty or tax under the Commercial Tax Act and VAT Act. This question has been answered against the Revenue and in favour of petitioners by us in a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both of the above splited entries under VAT are totally covered under entry 1 2 of the Schedule I of Entry Tax Act, are exempted from entry tax and hence the spirit in all cases continues to be exempted even post 01/04/2013 ? (iii) Whether on the facts and in the circumstances of the case Ld. MPCTAB was justified by not appreciating the well settled legal position of law that where in statute any word is not define the same can be understand taking recourse of different aids of interpretation, and the definition of Liquor in MP Excise Act should be read pari meteria in MP Entry Tax Act ? (iv) Whether on the facts and in the circumstances of the case Ld. MPCTAB was justified in wrong application of common parlance test, when legislature has already provided express definition of the term Liquor under Section 2(13) of the Excise Act and includes spirit in it ? 04. Learned counsel for the appellant submits that the MPCTAB was not justified in classifying the spirit either under Entry 47 of Schedule I or Entry 6 Part III-A of Schedule II of the VAT Act because the liquor is not defined in the VAT Act, therefore, the definition of liquor can be borrowed from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied spirit which is not manufactured for consumption as liquor. Hence, after 01.04.2013 it is out of the purview of Entry 47 of Schedule I or Entry 6 Part III-A of Schedule II of the VAT Act, hence, the VAT has rightly been imposed. 11. It is not in dispute that in W.P. No.2367/2016, this Court has considered the validity of Entry 18 to Schedule I of the M.P. Commercial Tax Act and Entry 47 of Schedule I of the VAT Act. As to whether the manufactured product i.e. Indian Made Foreign Liquor (IMFL) or rectified spirit being an excisable article is liable to be taxed under Commercial Tax Act or VAT Act as the case may be. The question has been answered against the revenue and in favour of the petitioners who the manufacturers of IMFL and rectified spirit are. This Court has held that after 01.04.2013, the question of imposition of duty/tax concerning the rectified spirit may be different and all the writ petitions were allowed only in respect of the assessment year before 01.04.2013. After 01.04.2013, the issue came up for consideration before this Court in W.P. No.2170/2016 (M/s Pernod Ricard India Private Limited v/s The State of Madhya Pradesh Others) decided on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Neutral Alcohol which is silent spirit of an optimum quality which complies with the standard for neutral spirit prescribed by the Bureau of Indian Standards for the purpose. That Rule 2(21) of Rules 1995 defines Rectified Spirit which means plain un- enatured spirit of strength of 66 degrees or more over proof and includes Extra Neutral Alcohol and Absolute Alcohol . [29] Thus when the sale or purchase is of ENA/ Rectified Spirit the State will be within its competence to charge levy at the rate under residual entry. [30] When the liquor is sold by a dealer who holds F.L.2/F.L.3/F.L.3A/F.L.4/F.L.4A licence under M.P. Foreign Liquor Rules 1996, the tax is 5 %. Similarly when it is sold by a dealer other than dealer holding these licences, the tax is 5 %. [31] These licences under Rules 1996 are: F.L.2 (Restaurant Bar licence)- F.L.2 licence holder may sell foreign liquor to the customer of the restaurant for consumption on the licensed premises with meals or snacks. This licence may be granted to restaurants having facilities of such scale and standard, as may be determined by the State Government. F.L.3 (Hotel Bar Licence). - F.L.3 licence holder may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry entry. [34] In view whereof, we do not perceive any ultra vires or an arbitrary act on the part of the State in charging tax at the rate 13% on ENA/Rectified Spirit. The challenge accordingly fails. 12. In view of the above, the issue is no res integra . The rectified spirit's manufacture and sale by the present appellant is not a liquor to claim an exemption under Entry 47 of Schedule I or Entry 6 Part III-A of Schedule II of the VAT Act. The MPCTAB has also held that in common parlance meaning of Indian Made Foreign Liquor means the liquor which is being sold from the shop has a licence for human consumption which does not include the rectified spirit, therefore, it is not exempted from Entry 47 of Schedule I or Entry 6 Part III-A of Schedule II of the VAT Act. We do not find any substantial questions of law involved in the present appeal. Accordingly, the present Value Added Tax Appeal stands dismissed. The order passed in the present appeal shall govern the connected appeal also, therefore, the connected appeal i.e. Value Added Tax Appeal No.5/2022 also stands dismissed. Let a copy of this order be kept in the connected appeal also. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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