TMI Blog2023 (5) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... in the residual entry as against the specific entry. In the instant case, the revenue has utterly failed to adduce any evidence, technical or otherwise, to substantiate its claim that pizza and sandwich are not cooked food . The revenue has not brought on record any expert opinion, any scientific study or survey to prove that pizza and sandwich are in-fact not cooked food - 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. A bare perusal of the Notification No. S.O. 263 dated 09.03.2015 would reveal that the State Government had itself considered items like pizz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 from tax payable by a dealer, to the extent the rate of tax exceeds 5 percent, on the sale of food cooked by him and served in the restaurants and hotels below three star category. 4. Learned counsels for the petitioner-assessee submits that the learned Tax Board has erred in law and in fact by holding that pizza and sandwich are baked branded products and not food . Learned counsels for the petitioner-assessee submits that there is no dispute with regard to the fact that the restaurants run by the petitioner-assessee are below 3 star cate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific 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, be brought under any of the tariff items. Since the goods in question, namely pizza and sandwich , are covered by notification dated 09.03.2010 being cooked food , therefore the petitioner-assessee has rightly collected and paid tax @ 5%. c.) The third contention of petitioner-assessee is that both the lower authorities have relied upon judgments delivered by different Courts prior to the introduction of pizza and sandwich in the Indian food market. It is stated that both the authorities have relied upon the traditional/conservat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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)], T.T.K. Pharma Ltd. vs. Commissioner of Commercial Tax reported in [(2001) 121 STC 595 (M.P.)], and C.T.O., A.E., Pali vs. M/s Maharaja Shree Ummaid Ltd. reported in [(2012) 34 TUD 287 (RTB)]. 6. Per contra, supporting the concurrent findings of the authorities below, learned counsels for the revenue submits that no question of law worth consideration arises in the present STRs. Learned counsels for the revenue contends that the goods sold by the petitioner-assessee does not fall within the ambit of cooked foods and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee. 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) Preparation of cooked food takes time whereas pizza can be prepared in considerably less time; (iv) Since topping and bread base are preheated and precooked, pizza would fall under the category of fast food and not cooked food ; (v) Cooked food is necessarily served with traditional cutlery, whereas the same is not required with pizza and sandwich ; (vi) Pizza is not distinguishable from pizza base, which is a baked product covered under Serial No. 154 of Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tating 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 not be covered under the category of cooked food because these products are not food as per the common parlance theory because the general public do not see these items as a substitution to regular meals which include vegetables, chapatti/roti, rice etc. However, this conclusion of the Tax Board is also erroneous for the reasons that the same was reached without appreciation of any evidence whatsoever. The Tax Board merely relied upon judgments t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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