TMI Blog2022 (8) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... versely, if the customer was to ask for Robinson Barley or Purity Barley, then he would not be supplied with plain barley. The distinct commercial product Robinson Barley cannot, as pointed out in Satyanarayan Bhandar be classified as cereal which is taxable @4% and has to be brought under the residual entry taxable @ 12%. The question framed is answered in favour of the Department and against the Assessee by holding that Robinson Barley and Purity Barley manufactured by the Petitioner should be taxed under the residual Entry 189 of List C of the Rate Chart appended to the OST Act and not Entry 25 relating to cereals - revision petition dismissed. - TREV No.176 of 2001 AND STREV No. 75 of 2003, STREV 30 of 2012 - - - Dated:- 12-8-2022 - S. MURALIDHAR CHIEF JUSTICE AND R.K. PATTANAIK JUDGE Advocates, appeared in these cases: For Petitioner(s) : Mr. B.K. Mahanti, Senior Advocate Mr. R.K. Patra, Advocate For Opposite Parties : Mr. Sunil Mishra Additional Standing Counsel JUDGMENT Dr. S. Muralidhar, CJ. Introduction 1. These three tax revision petitions by Reckitt Benckiser (India) Ltd. raise an identical question of law viz., whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erce . It declares certain goods to be of special importance in inter-state trade and commerce ( declared goods ). Clause (i) of Section 14 of the CST Act reads as under: 14. Certain goods to be of special importance in inter-State trade or commerce. It is hereby declared that the following goods are of special importance in inter-state trade or commerce: (i) cereals, that is to say,- (x) barley (Hordeum vulgare L.) 7. Section 15 of the CST Act imposes certain restrictions upon, and conditions regarding imposition of tax on sale or purchase of declared goods by State Legislatures. Section 15 of the CST Act includes a condition that the tax on declared goods shall not exceed 4% and the tax shall not be levied at more than one stage. 8. The Petitioner argues that Robinson Barley is to be properly classified under Entry 25 of List-C in Chapter III of the Rate chart pertaining to cereals which would apply and not the residual Entry 189. The product 9. Mr. B.K. Mahanti, learned Senior Counsel appearing for the Petitioner has filed elaborate written submissions dated 16th May, 2022, 20th June, 2022 and 4th July, 2022. In all these notes of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is a registered dealer. The assessment of the petitioner-firm was made under Section 12(4) of the Orissa Sales Tax Act, 1947 (hereinafter, referred to as the OST Act ) for the years 1990-91 and 1991-92. After completion of assessments and on the basis of information that the turnover of the petitioner for the aforesaid years has escaped assessment in view of the wrongful grant of exemption, orders for reopening of assessments were passed by the concerned Sales Tax Officer under Section 12(8) of the OST Act. 11. It was claimed by the Assessee in that case that the purchase of Robinson Barley was made inside the State of Odisha on payment of tax @ 4%. While in the original assessment, the exemption was allowed, on reassessment, the STO held that Robinson Barley is not a medicine nor it is a cereal and is exigible to tax at last point of sale at the rate of 12%. The appeal filed by the Assessee in that case was allowed accepting the Assessee s contention that Robinson Barley was barley which was a cereal taxed at first point of sale @ 4%. However, the Tribunal allowed the appeal of the State holding that Robinson Barley was not the same as barley in the form of cereal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Modi Industries Ltd. v. State of Odisha (2005) 141 STC 155 (SC); State of Karnataka v. Sri Lakshmi Coconut Industries (1997) 107 STC 566 were all held to be inapplicable. While discussing all of the above decisions, this Court in Satyanarayan Bhandar (supra) reiterated that barley and Robinson barley are not items of the same nature though the basic ingredients of Robinson barley may be barley but when barley is transformed to Robinson barley, it goes through various technical process and various other ingredients like iron and calcium are added. 15. This Court in Satyanarayan Bhandar (supra) also referred to the decision of the Supreme Court in Rajasthan Roller Flour Mills v. State of Rajasthan (1994) Supp 1 SCC 413 which had been cited by the Department. There the Supreme Court held that flour, maida and suji even though derived from wheat are not wheat, and therefore, they cannot be treated as declared goods under the CST Act. 16. Faced with the above decision of the co-ordinate Bench of this Court in Satyanarayan Bhandar (supra), the attempt of Mr. Mahanti, learned Senior Counsel for the Petitioner, was to first distinguish the applicability of the said judgment by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Barley or Purity Barley. Conversely, if the customer was to ask for Robinson Barley or Purity Barley, then he would not be supplied with plain barley. The distinct commercial product Robinson Barley cannot, as pointed out in Satyanarayan Bhandar (supra) be classified as cereal which is taxable @4% and has to be brought under the residual entry taxable @ 12%. Consequently, this Court is not impressed with the submission based on the decision of the Supreme Court in Dunlop India Ltd. v. Union of India (1976) 2 SCC 241 that Robinson Barley has to be classified under Entry 25 of the rate notification pertaining to cereal and not be confined to orphanage of the residuary clause as contended by Mr. Mahanti. 20. Relying on the decisions in Union of India v. Garware Nylons Ltd. (1996) 10 SCC 413; HPL Chemicals v. Commissioner of Central Excise (2006) 5 SCC 208; Voltas Limited v. State of Gujarat (2015) 7 SCC 527, Mr. Mahanti contended that the burden of proof was on the taxing authority to demonstrate that a particular class of goods or item is taxable in the manner claimed by the Revenue and that a mere assertion in this regard is of no avail. In the considered view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in Telengana Steels Industries Ltd. v. State of Andhra Pradesh AIR 1994 SC 1831 a two Judge Bench of the Supreme Court had doubted the correctness of the decision in Rajasthan Roller Flour Mills (supra). However, the fact remains that in Telengana Steels (supra), no reference was made to a larger Bench to decide the correctness of Rajasthan Roller Flour Mills. It is not within the purview of this Court to doubt the correctness of Rajasthan Roller Flour Mills (supra) which in its considered view applies to the case at hand. In any event, in view of the Coordinate Bench decision in Satyanarayan Bhandar (supra) which is binding on this Court and which in this Court s view does not require reconsideration, there is no occasion to answer the question framed by this Court in the present case in favour of the Assessee. 23. Accordingly, the question framed is answered in favour of the Department and against the Assessee by holding that Robinson Barley and Purity Barley manufactured by the Petitioner should be taxed under the residual Entry 189 of List C of the Rate Chart appended to the OST Act and not Entry 25 relating to cereals . The revision petitions are hereby dismissed. ..... 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