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TMI Blog2023 (5) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... nded bakery product and the provisions of law, the Ld. Rajasthan tax Board is justified in holding that the sale of sandwich as a branded bakery product? (iii) Whether the subsequent legislature amending the notification and the rate schedule can be used for interpretation of the earlier provisions of law?" 2. The lis in question pertains to classification of 'pizza' and 'sandwich' under the Rajasthan Value Added Tax Act, 2003 (for short "RVAT"). The common issue for consideration of this Court is whether 'pizza' and 'sandwich' fall within the ambit of "cooked food" to claim benefit of exemption notification dated 09.03.2010? Since the issue involved is identical, STR No. 58/2013 is taken as lead file. 3. Learned counsels for the petitioner-assessee, at the outset, has drawn attention of this Court to the Notification No. F.12(22)FD/Tax/10-87 dated 09.03.2010 issued by Finance Department (Tax Division), which reads as under: "S.O.391- In exercise of the powers conferred by subsection (3) of section 8 of the Rajasthan Value Added Tax Act, 2003 (Act No. 4 of 2003), the State Government being of the opinion that it is expedient in the public interest so to do, hereby exempts fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Sharma Chemical Works reported in [(2003) 132 STC 251 (SC)] and judgment of Division Bench of this Court in the case of State of Rajasthan and Ors. vs. Deys Medical Stores Ltd. and Ors. (DBCWP No. 2139/1999 decided on 27.07.2007). b) The second contention of the petitioner-assessee is that notification dated 09.03.2010 has used the term "food cooked by him" and the 'pizza'/'sandwich' sold by the petitioner-assessee is covered within the four corners of the said notification. It is an established cannon of classification that a specific entry would override a general entry. Reliance in this regard is placed on Apex Court judgments of State of Maharashtra vs. Bradma of India Ltd. reported in [(2005) 140 STC 17 (SC)], Hindustan Poles Corporation vs. Commissioner of Central Excise, Calcutta reported in [(2006) 145 STC 625 (SC)], and Commissioner of Central Excise Versus M/s Wockhardt Life Sciences Ltd. (sic) reported in [2012 (277) ELT 299 (SC)]. It is stated that a special entry must prevail over the general entry and that the residuary clause can be invoked only if the department can establish that the goods in question can, by no conceivable process of reasoning, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of Pappu Sweets and Biscuits vs. Commissioner of Trade Tax U.P Lucknow reported in [(1998) 111 STC 425 (SC)], and V.M. Salgaocar and Bros. Pvt. Ltd. vs. Commissioner of Income Tax reported in (2000) 5 SCC 373. e.) In support of their contention that 'pizza' and 'sandwich' are cooked food, learned counsels for the petitioner-assessee have relied upon the judgments of S. Samuel and Ors. vs. Union of India (UOI) and Ors. reported in (2004) 1 SCC 256, Sat Pal Gupta and Ors. vs. State of Haryana and Ors. reported in (1982) 1 SCC 610, Nanjundeshwara Mart vs. State of Karnataka reported in [(1992) 84 STC 534 (Karnataka)], Santosh Kumar Ghosh vs. The Commercial Tax Officer and Ors reported in [(1965) 16 STC 931 (Calcutta)], Commissioner of Sales Tax, M.P. vs. Regal Dairy reported in [(1981) 47 STC 374 (M.P.)], Commissioner of Sales Tax, M.P. vs. Indore Coffee House reported in [(1981) 47 STC 375 (M.P.)], Commissioner of Sales Tax, U.P. vs. Sunhari Lal Jain reported in [(1975) 33 STC 425 (All)], Commissioner of Sales Tax, M.P. vs. Indian Coffee Workers Co-Op Society Ltd. reported in [(1970) 25 STC 43(M.P)], S. Giridhar Shenoy vs. State of Kerela reported in [(1997) 104 STC 562 (Ker)], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made on the base of pizza according to the taste of the consumer. The topping of pizza does not alter the basic character of pizza base which is bakery product. In India, Pizza is not treated as wholesome food, however, it is generally used as fast food likes snacks. 19. I have gone through the record, arguments advanced by the learned Authorized Representatives of the dealer and facts submitted by the Assessing Authority in his comments as well as opinion given by the State Level Departmental Committee. 20. As pizza is a bakery product and Domino's is brand name, hence, being a branded bakery product, it is taxable at the rate of 14%. 21. Therefore, the pizza sold by the applicant is not covered under the said notification." From the aforesaid, it appears that the Additional Commissioner arrived at the conclusion that 'pizza' is not 'cooked food' based on the following observations: (i) Cooked food is prepared by using oil/ghee and spices with application of heat by mainly through chulha or gas burner. (ii) Cooked food only contains fresh ingredients and no preservatives, whereas the toppings used in the preparation of 'pizza' contains preservatives; (iii) Prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court fails to understand as to how any of the factors considered in the order dated 11.05.2011 would lead to the conclusion that 'pizza' or 'sandwich' is not 'cooked food'. The factors, as stated in para 8 above, are entirely irrelevant for determination of the products involved herein. What is shocking is that the Additional Commissioner has placed such strong reliance on factors that were themselves never proved or substantiated. Merely by stating that cooked food is necessarily prepared on gas burner, with aid of oil/ghee and spices, using exclusively fresh ingredients and then served with traditional cutlery, the Additional Commissioner arrived at the conclusion 'pizza' or 'sandwich' are not 'cooked food'. If the revenue wanted to rely on these factors, it was the duty of the revenue to prove/establish that these factors are themselves true and that these factors are essential for determination of what construes as 'cooked food'. Since the same was not done by the revenue, the Assistant Commissioner has wrongly relied upon the factors and wrongly accepted them on their face value. 10.2) The Tax Board has also arrived at the conclusion that 'pizza' or 'sandwich' would n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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