JUDGMENT Oral: Hon’ble Prafulla C.Pant, J. This appeal is directed against the order dated 23.03.2010, passed by learned Single Judge, of this Court in writ petition (M/S) No. 1581 of 2009, whereby said Court has allowed the writ petition and the Circular dated 30.05.2009, issued by the Commissioner of Taxes, Uttarakhand, has been quashed. By said Circular Letter the departmental authorities were directed not to treat sauces like tomato sauce etc. under entry 6 of Schedule II B of Uttarakhand Value Added Tax Act, 2005. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that the present respondent/assessee was served with a show cause notice dated 19.06.2009, by the Assessing Authority in the light of the Circular Letter dated 30.05.2009, issued by Commissioner of Taxes, Uttarakhand, as to why, commercial tax at the rate of 12.5% be not charged on the tomato sauce sold in the Assessment year 2005-06. In response to said notice petitioner submitted its reply on 29.06.2009, claiming that the item was not taxable at the rate of 12.5%. It was also pleaded by the assessee that the tomato sauce is the item covered under entry No. 6 of Schedule- II B of Uttarakhand Value Added Tax Act, 2005 (for short VAT Act). The said entry coveres all processed and preserved vegetables, besides vegetable mushrooms and fruits including fruit jams, jellies, fruit squash, paste, fruit drinks and fruit juices and achar (whether in sealed container or otherwise). However, the Assessing Authority did not accept the contention of the assessee and charged the tax under the category of unclassified items. The basis of charging the tax at the rate of 12.5% was the Circular Letter dated 30.05.2009. It appears that aggrieved by said order dated 08.07.2009, passed by Assessing Authority (Deputy Commissioner, Assessment Commercial Taxes, Rishikesh), the assessee filed writ petition No. 1581 of (M/S) of 2009, challenging the Circular Letter dated 30.05.2009, alongwith the order passed by the Assessing Authority. 4. Learned Single Judge, after hearing the parties, allowed the writ petition vide impugned order dated 23.03.2010, and the quashed the Circular Letter. It is further directed that VAT at the rate of 12.5% shall not be realised from the petitioner. Hence this appeal by the revenue. 5. 4. Learned Single Judge, after hearing the parties, allowed the writ petition vide impugned order dated 23.03.2010, and the quashed the Circular Letter. It is further directed that VAT at the rate of 12.5% shall not be realised from the petitioner. Hence this appeal by the revenue. 5. The only question involved in this appeal is:- Whether the learned Single Judge, has rightly held that the tomato sauce is a processed vegetable ? 6. Before further discussion we think it just and proper to mention that under entry No. 24 of the Schedule I “fresh fruits and vegetables including garlic and ginger, fresh fruit juices and fruits shakes like mango shake” are covered. Under clause (a) of Sub-Section (2) of Section 4 of Uttarakhand VAT Act, it is provided that no tax under the Act shall be payable on the sale or purchase of the goods specified in Schedule 1. In other words, on the sale of fresh fruits and vegetables including garlic and ginger, fresh fruits juice and fruit shakes like mango shake, no tax is payable under the Act. It is not disputed that tomato is the vegetable. It is nobody’s case that tomato sauce is tomato vegetable. There is no tax on sale of fresh vegetables. 7. Under entry No. 6 of Schedule II B of the Act, tax is payable on sale of all processed and preserved vegetables, vegetable mushrooms and fruits including fruit jams, jellies, fruit squash, paste, fruit drinks and fruit juices and achar (whether in sealed container or otherwise). The rate of tax for such items is 4 %. 8. Learned counsel for the State argued that tomato sauce is not mentioned in entry No. 6, and as such not covered under said entry. In this connection, it is further argued that the tomato sauce is the unclassified item on which tax is payable at the rate of 12.5%. 9. On the other hand, on behalf of the assessee it is contended that tomato sauce is nothing but the processed tomato, as such, the impugned Circular on the basis of which, tomato sauce was to be treated as unclassified item was liable to be quashed as the same was against what is mentioned under entry No. 6 of Schedule IIB of the Uttarakhand VAT Act. It is further contended that learned Single Judge has rightly quashed same. 10. It is further contended that learned Single Judge has rightly quashed same. 10. Learned Single Judge has discussed at length as to why the tomato sauce is nothing but the processed vegetable. It is relevant to mention here that in respect of the fresh vegetables, no tax is payable at all. It is nobody’s case that sauce be treated as fresh vegetable. In the circumstances, merely for the reason, that word “Tomato Sauce” is not mentioned in entry 6, it cannot be said that the same is not included, particularly when word “All” is affixed with the expression ‘ processed and preserved vegetables ‘ in the entry. 11. Botanically, the tomato is the fruit but for purposes for trade it is classified as a vegetable. It is common that tomatoes are widely used as canned vegetable in the form of juice, sauces, pastes and ketchup. Tomato sauce refers to tomato concentrate with salt, pepper, onion/garlic, sugar, spices and preservatives. It is a processed item, normally marketed in bottles and cannes, before served as a dish. 12. In Bharat Forge and Press Industries (Pvt.) Ltd. Vs. Collector of Central Excise, (1990) 1 S.C.C. Page 532, the Apex Court has observed in Para 4 as under:- “ The question before us is whether the department is right in claiming that the item in question are dutiable under tariff entry 68. This, as mentioned already, is the residuary entry and only such goods as cannot be brought under the various specific entries in the tariff should be attempted to be brought under the residuary entry. In other words, unless the department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort cannot be had to the residuary item. ” 13. Also, in Mauri Yeast India Pvt. Ltd. Vs. State of U.P. and Another, 2008 U.P.T.C Page 729, the Apex Court has opined that where two logical opinions are possible in respect of an item whether the same is covered under specific entry or the residuary entry, the former is to be preferred. As such the trial court has rightly held that tomato sauce being a processed and preserved vegetable is covered under entry No.6, and Circular Letter dated 30.05.2009, being against the spirit of the entry No.6 of Schedule IIB of the VAT Act, is liable to be quashed. 14. As such the trial court has rightly held that tomato sauce being a processed and preserved vegetable is covered under entry No.6, and Circular Letter dated 30.05.2009, being against the spirit of the entry No.6 of Schedule IIB of the VAT Act, is liable to be quashed. 14. For the reasons as discussed above, in our opinion, the impugned order passed by learned Single Judge, does not require any interference. 15. Therefore, the appeal is liable to be dismissed. The same is dismissed. No order as to costs.