DEPUTY COMMISSIONER OF SALES TAX (LAW) v. FOOD SPECIALITIES LTD.
1990-01-23
K.S.PARIPOORNAN, VARGHESE KALLIATH
body1990
DigiLaw.ai
JUDGMENT VARGHESE KALLIATH, J. - These tax revision cases arise from a common order passed in Appeal Nos. 541, 542, 543 and 544 of 1988. These cases relate to different assessment years, viz., 1983-84, 1984-85, 1985-86 and 1986-87. These assessee is engaged in the sale of three products - Nescafe, Ricory and Sunrise - manufactured by them. Nescafe is a pure instant coffee. Ricory is an instant coffee which is a compound of 70 per cent coffee and 30 per cent chicory blend. Sunrise is also an instant coffee powder with 80 per cent coffee and 20 per cent chicory blend. 2. The assessments for 1983-84, 1984-85 and 1985-86 were originally completed treading these three items as coffee. These assessments were revised under section 19 of the Kerala General Sales Tax Act, 1963, treating these three items as beverages or non-alcoholic drinks falling under entry 33 of the First Schedule to the Act. For the assessment year 1986-87, the taxing officer assessed the turnover of the sale of these items on the same lines under entry 33 of the First Schedule to the Act. 3. The assessee filed appeals before the appellate authority. The appeals were unsuccessful. The assessee filed second appeals before the Kerala Agricultural Income-tax Appellate Tribunal. The Appellate Tribunal allowed the four appeals for the years 1983-84, 1984-85, 1985-86 and 1986-87. The Tribunal found that Nescafe has to be taxed under entry 21 of the First Schedule and Ricory and Sunrise have to be taxed under entry 21A of the First Schedule to the Act. The Tribunal also found that these items can never be treated for the purpose of sales tax as items coming within entry 33. The Deputy Commissioner of Sales Tax (Law), Board of Revenue, has challenged the common order in these tax revision cases. 4. From the narration of the short facts of the case, it is plain and clear that the only question that has to be decided in these tax revision cases is whether the finding of the Tribunal that the three items, viz., Nescafe, Ricory and Sunrise, will come under entries 21 and 21A of the First Schedule to the Act is justified. The Revision petitioner contended that the correct entry applicable to the items is entry 33.
The Revision petitioner contended that the correct entry applicable to the items is entry 33. In order to assess the merit of the arguments advanced by the Government Pleader, appearing for the revision petitioner, and the counsel for the assessee, appearing for the respondent, we feel that it is apposite to extract the relevant entries is full. "Coffee, tea, spices and manufactures thereof : 21. Coffee, that is to say, At the point of first 6% any one of the forms of coffee purchase in the State by such as coffee beans, coffee a dealer who is liable seeds (raw or roasted), coffee to tax under section 5. powder, but not including coffee drink or French coffee. 21A. French coffee (admixture At the point of first 6% of coffee and chicory). sale in the State by a dealer who is liable to tax under section 5. Explanation. - Where a tax has been levied in respect of coffee seeds or coffee powder or chicory, the tax leviable on French coffee produced out of such coffee seeds or powder or chicory shall be reduced by the amount of tax levied on such coffee seeds or powder chicory as the case may be. Beverages : 32. Ice. do. 5% 33. Non-alcoholic drinks, do. 10%" squashes, sauces, aerated waters and beverages, bottled or canned. Explanation. - Powders and tablets used for the preparations of non-alcoholic drinks shall, whether or not they are bottled or canned, be liable to tax under this item. 5. Entry 21 makes it clear that that entry is a specific entry referable to coffee and any one of the forms of coffee. There is no difficulty for us to hold that entry 21 is a particular entry and that when there is a particular or specific entry in a fiscal statute, the general entry has to give way to the specific entry. So, we have to examine whether this particular entry is applicable in the case of the items now sought to be taxed. 6. There is no dispute that Nescafe is pure coffee. There is no point in saying that when Nescafe is pure coffee and when there is a specific entry dealing with coffee that item has to be taxed under the general entry viz., entry 33 - non-alcoholic drinks, squashes, sauces, aerated waters and beverages, bottled or canned.
6. There is no dispute that Nescafe is pure coffee. There is no point in saying that when Nescafe is pure coffee and when there is a specific entry dealing with coffee that item has to be taxed under the general entry viz., entry 33 - non-alcoholic drinks, squashes, sauces, aerated waters and beverages, bottled or canned. When Nescafe is pure coffee, there is absolutely no justification for treating it as a non-alcoholic drink or a beverage. The Tribunal has found rightly that entry 33 has no application in regard to Nescafe and the correct entry applicable is entry 21. We hold that this finding is perfectly legal and correct. The order of the Appellate Tribunal in regard to Nescafe has to be upheld. We do so. 7. Now we turn to the question of the other two items, viz., Ricory and Sunrise. Admittedly, Ricory and Sunrise are coffee which is a blend of coffee and chicory. In the case of Ricory, the blending is done with 70 per cent coffee and 30 per cent chicory and in the case of Sunrise, the blend is 80 per cent coffee and 20 per cent chicory. The Tribunal found the entry that is applicable in the case of these two items is entry 21A. Entry 21A, as we said earlier, is also a specific entry. It is stated very specifically that this entry is an admixture of coffee and chicory. So long as there is no dispute that Ricory and Sunrise are admixtures of coffee and chicory, these items will squarely come under entry 21A of the First Schedule to the Act. When the items are squarely and plainly includible in a specific item, there is absolutely no justification for the taxing authorities to put those items in a general entry dealing with beverages and drinks. The Tribunal has rightly found that these items, viz., Ricory and Sunrise will come under entry 21A. We hold that the order of the Tribunal is perfectly legal and valid. In these circumstances, we do not see any reason to interfere with the order of the Tribunal. The tax revision cases are dismissed. Petitions dismissed.