JUDGMENT : 1. Heard finally. 2. The instant petitions are directed against order dt 16.5.2008 whereby appeals filed by the petitioner assessee have been dismissed. 3. Admit. After hearing learned counsel for the parties, the following questions emerge for consideration :- (i) Whether the Tax Board is justified in holding that ‘Potato Chips’ are not classifiable as ‘Processed Vegetable’ under entry 107 of Schedule IV, just because of the fact that branded namkeen (including dried potato chips), are kept outside the purview of entry 131 of the same Schedule, a general entry dealing with sweetmeats and unbranded namkeen? (ii) Whether the Tax Board erred in ignoring the evidence placed on record of the various government bodies and institutions concerned in fruits & vegetable processing sector and deciding the issue merely on the basis of opinion formed by it? 4. The brief facts noticed are that a survey was carried out at the business premises of the assessee on 4.12.2006, wherein the AO noticed certain incriminating material and after carrying investigation, proceeded to assess the assessee for the assessment years 2006-07 & 2007-08. 5. The assessee is a Limited Company, and is a dealer registered under the provisions of RVAT Act, and is engaged in the sale of 'Processed Vegetables' such as “Potato Chips” and other food products in the State of Rajasthan. The petitioner assessee is manufacturing “Potato Chips” in the States of Punjab, Maharashtra and West Bengal. On the sale of “Potato Chips” the claim of assessee was that it falls in entry 107 of Schedule IV with a rate of 4% VAT classifying the same as 'Processed Vegetables', however, the claim of Assessing Officer on the other hand was that “Potato Chips” does not fall within the scope and ambit of entry 107 and intended to classify the same under the Residuary Schedule V of the Act, thereby intended to levy tax @ 12.5%. Accordingly, a show cause notice was given, whereupon a detailed explanation was offered by the assessee stating therein that “Potato Chips” fall within the category of 'Processed or Preserved Vegetables' and in the earlier assessment year it was held so by the AO himself, however, the claim of the assessee was not accepted and accordingly the AO charged tax @ 12.5% and since tax @ 4% was already paid, therefore, differential tax along with interest u/s 55 so also penalty u/s 61 of the Act was levied. 6. An appeal was preferred before the Dy. Commissioner (Appeals) who also, however, did not interfere in the findings reached by the AO and upheld the order as it is. On a further appeal by the assessee before the Tax Board, also resulted into dismissal of the appeal and upheld the order as it is. 7. Learned counsel for the assessee vehemently contended that a bare perusal of entry 107 of Schedule IV, would clearly bring out the case within the ambit of entry 107 as “Potato Chips” are produced/manufactured from Potato, and Potato is a vegetable and chips being produced, become a 'Processed Vegetable'. For making “Potato Chips” initially Potato is sliced, fried and sprinkled with spices and flavouring substances, however, the resultant product retains all the characteristics of Potato, and Potato in a processed form becomes 'Processed Vegetable' and by no stretch of imagination it can be carried to the Residuary entry. Learned counsel contended that entries as they stand should be read and taken into consideration, rather than carried to any other entry and if the claim of respondent Revenue was that it is not a 'Processed Vegetable' then the burden lay on the AO in the instant case, which has not been discharged. The finding reached by all the three authorities, he contended, is contrary to the provisions of law and is perverse. Learned counsel also contended that even as per the Ministry of Food Processing Industries, Govt. of India website, “Potato Chips” have been said to fall in Vegetables Sector. The finding reached by all the three authorities, he contended, is contrary to the provisions of law and is perverse. Learned counsel also contended that even as per the Ministry of Food Processing Industries, Govt. of India website, “Potato Chips” have been said to fall in Vegetables Sector. Learned counsel also contended that majority of the High Courts in the country, considering the same product, have held this product to be falling within the category of 'Processed Vegetables' and in this regard relied on the judgments of the Gauhati High Court in assessee's own case in Pepsico India Holding Pvt. Ltd. v. The State of Assam & Others, [OT.Appl 1/2007, decided on 28.4.2009, wherein the court was considering a case of “Potato Chips” under the brand name of “Lays” and “Uncle Chips” and the entry which was relevant for consideration before the Gauhati High Court was Entry 80 of Part A of the Second Schedule which reads - “Processed or preserved vegetables & fruits including fruit jam, jelly, pickle, fruit squash, paste, fruit drink and fruit juice”, and after analysing the entry and the process, the court by a detailed reasoning, allowed the revision of assessee holding that the said item will not fall under the Residuary Items. 8. Learned counsel also contended that the Madras High Court also, in assessee's own case in PepsiCo India Holdings Pvt. Ltd. v. Commissioner of Commercial Taxes & Others [Writ Appeal No.551/2009, decided on 10.11.2009], had an occasion to consider the same products “Lays” and “Uncle Chips”, and held that the case of assessee does not fall in the Residuary Category. Learned counsel further contended that the Punjab & Haryana High Court has also considered the case of “Potato Chips” under the Punjab VAT Act, 2005 in M/s. Pepsico India Holdings Pvt. Ltd. v. The State of Punjab & Others [VAT Appeal No.32/2009, decided on 18.5.2010] and after detailed analysis, allowed the claim of assessee, holding that “Potato Chips” manufactured and sold by the appellant-petitioner company would fall under entry 88 of Schedule-B of the Punjab VAT Act and not under the Residuary Item. Learned counsel also relied upon M/s Shriya Enterprises v. Commissioner Commercial Taxes, Uttarakhand [CTR 55/2011, decided by Uttarakhand High Court on 20.10.2011] and judgment of this court in Pepsico India Holding Pvt Ltd. v. CTO, Special Circle Rajasthan & Another [STR 196/2009, decided on 22.12.2016]. 9. Learned counsel also relied upon M/s Shriya Enterprises v. Commissioner Commercial Taxes, Uttarakhand [CTR 55/2011, decided by Uttarakhand High Court on 20.10.2011] and judgment of this court in Pepsico India Holding Pvt Ltd. v. CTO, Special Circle Rajasthan & Another [STR 196/2009, decided on 22.12.2016]. 9. Learned counsel thus contended that though the entry may be slightly differently worded in other States, but by & large in all other States the courts have held it to be under the heading of 'Processed Foods & Vegetables' etc. and thus contended that the claim of assessee being just and proper, deserves to be allowed and simultaneously, interest and penalty should also be waived/deleted. 10. Per contra, learned counsel for the Revenue vehemently contended that all the three authorities in unison and by concurrent finding of fact, have held that the case of assessee does not fall in entry 107 and would clearly fall within the Residuary Schedule and the assessee has not been able to prove or satisfy as to how it falls squarely within entry 107 of Schedule IV. Learned counsel further contended that though unbranded “namkin” including “Dried Potato Chips” fall in entry 131 of Schedule IV, but even the case of assessee would not fall in it because the case of assessee is of branded “Potato Chips” and not unbranded, and further contended that the intention of the Legislature was very clear to grant/extend benefit to small processors/manufacturers of “Potato Chips”, who prepare the same in every nook & corner, and for those the benefit was granted rather than the assessee who is producing branded “Potato Chips”. Learned counsel further contended that intention of the Legislature has been very clear in specifying the entry and supported the order of the lower authorities and contended that well reasoned orders have been passed in unison by the lower authorities. Learned counsel also contended that the Karnataka High Court in State of Karnataka & Another v. Merino Industries Limited [2015] 83 VST 409 (Karn), has in assessee's own case (same product), considered the judgments relied upon by the learned counsel for the petitioner and has also held against the assessee, which is squarely applicable. 11. I have heard the learned counsel for the parties, scanned the material on record and have gone through the judgments relied upon by the learned counsel for the parties. 12. 11. I have heard the learned counsel for the parties, scanned the material on record and have gone through the judgments relied upon by the learned counsel for the parties. 12. Before proceeding ahead, it would be appropriate to quote the relevant entry 107, as it stands, which has been claimed by the assessee in its favour, as also entry 131 which has been relied upon by the Revenue, which read as under :- S.No. Description of Goods Rate of Tax 107 Processed or preserved vegetables and fruits including fruit jam, jelly, pickle, fruit squash, paste, fruit drink and fruit juice, sharbat and thandai 4 131 Sweetmeat Deshi including Gazak & Revri, banded bhujiya made of pulses, and unbranded namkeens (including dried potato chips] 4 13. It would also be appropriate to refer to some of the judgments which have taken into consideration this very product by other States and various High Courts. As has been referred earlier, the Gauhati High Court had before it entry 80 of Part-A of the II Schedule of the Assam VAT Act, 2003, which is quoted hereunder :- “3. Entry 80 of Part A of the Second Schedule at the relevant time was in the following terms : “80. Processed or preserved vegetables & fruits including fruit jam, jelly, pickle, fruit squash, paste, fruit drink and fruit juice.” 14. If we analyse the said entry of Assam vis-a-vis the entry as existing in the State of Rajasthan and being considered in the present case, it is almost identical except that in Rajasthan “sharbat and thandai” have also been added. It would also be appropriate to quote the relevant paras of the said judgment passed by the Gauhati High Court in Pepsico India Holding Pvt. Ltd. v. The State of Assam & Others (supra) :- “18. The law laid down by the apex court in Collector of Central Excise, Kanpur v. Krishna Carbon Paper Co. Ltd. 1989 (72) STC 280 SC, therefore, has to be understood to mean that in the normal course the ordinary meaning according to the common parlance has to be ascribed but in a given case, if the situation so demands, a technical, scientific or special meaning that may be discernible may have to be ascribed to the words used in the statute. 19. 19. In the present case, the specific inclusion of items like jam, jelly, pickles, etc., which in common parlance are not understood to be items of processed vegetable or fruit, gives sufficient indication that processed vegetable or fruit appearing in entry 80 has been given a special or technical meaning as distinguished from the ordinary meaning. If a processed vegetable or fruit is to be understood in the ordinary way, none of the items specifically included in entry 80 could have been so included. That apart, the Government of India has understood "potato chips" to be a vegetable product for the purpose of classification under the Central Excise Tariff Act. Such understanding has also been reiterated by the Ministry of Food Processing. As held by the apex court in State of Tamil Nadu v. Mahi Traders [1989] 73 STC 228, at page 229, "Contemporaneous exposition by the administrative authorities is a very useful and relevant guide to the interpretation of the expressions used in a statute". Considering the above, we are of the view that the words "processed vegetables or fruits" appearing in entry 80 must be ascribed a fictional meaning to include items which in everyday use may not be vegetable or fruit items. 20. The net result of the above discussions leaves no doubt in our mind that "potato chips" manufactured and sold by the petitioner-company would fall under entry 80 of Part A of Schedule II to the Assam Value Added Tax Act, 2003, as contended by the petitioner and that the said item will not fall under the residuary item contained in serial No. 1 of the Fifth Schedule to the Act as claimed by the Revenue. Our above finding, naturally, has to be understood in the context of the provisions of the Act as it stood prior to the amendment to the Schedule to the Act made w.e.f. 16.10.2008. 15. Under the Tamil Nadu VAT Act, 2006, the entry 107 as it stood, reads as under :- “Entry 107 of Part-B of Schedule-I 107. Processed fruits and vegetables including fruit jam, jelly, fruit squash, paste, fruit drink and fruit juice (whether in sealed containers or otherwise), other than those specified in the Fourth Schedule.” 16. 15. Under the Tamil Nadu VAT Act, 2006, the entry 107 as it stood, reads as under :- “Entry 107 of Part-B of Schedule-I 107. Processed fruits and vegetables including fruit jam, jelly, fruit squash, paste, fruit drink and fruit juice (whether in sealed containers or otherwise), other than those specified in the Fourth Schedule.” 16. If we peruse the said entry of Tamil Nadu vis-a-vis the entry as being considered in the present petition, is almost identical and it would be appropriate to quote the relevant para of the judgment rendered by Madras High Court in PepsiCo India Holdings Pvt. Ltd. v. Commissioner of Commercial Taxes & Others (supra), which reads as under :- “8. In our view, as far as the present case is concerned, once a clarification is given by the Commissioner of Commercial Taxes, that will bind the subordinate assessing authorities and one cannot expect a different order from the assessing officers. In these circumstances, no fruitful purpose would be served by directing the appellant to go for an assessment and for that reason, not to entertain the writ petition. That apart, in the present case, for the very branded products, there is a well reasoned Division Bench judgment of another High Court. It is a settled proposition that in tax matters, when there is a Division Bench judgment of another High Court on a similar provision, it has to be treated with due respect and in the instant case, since the Guwahati High Court has taken a view, which is according to us also otherwise correct, there is no reason for us to take a different view.” 17. The relevant entry 88 of Schedule B of the Punjab VAT Act, 2005, reads as under :- “..processed fruits, vegetables including fruit jams, jelly, pickle, fruit squash, paste, fruit drink and fruit juice (whether in sealed container or otherwise)” 18. On perusal of the above of Punjab vis-a-vis entry 107 referred to hereinbefore of the RVAT Act, is almost identical and after analysing the entry, the Punjab & Haryana High Court in M/s. Pepsico India Holdings Pvt. Ltd. v. The State of Punjab & Others (supra) referred hereinbefore, has held as under :- “In the instant case it is admitted position that Potato which is a vegetable is processed in order to manufacture potato chips. It is also the admitted position that there is a specific entry for processed vegetables. In order to manufacture Potato chips, the potato is sliced, fried, sprinkled with spicy and flavouring substances and the resultant product includes all the essential characteristics of potato and, thus, chips are potatoes in a processed form i.e. a processed vegetable. Therefore, the potato chips has to be classified under Entry 88 of Schedule ‘B’ of the Punjab VAT Act, 2005 and would not fall under the residuary entry. The judgment of the Guwahati High Court in Pepsico India Holding Pvt. Ltd (supra) and the judgment of the Madras High Court referred to above, squarely cover the case of the appellant, as similar questions were involved in those cases also.” 19. After analysing the judgments referred to hereinbefore, in my view, it cannot be disputed that Potato is a vegetable, and after going through the process of slicing, frying and spicing, “Potato Chips” does not cease to be a vegetable. It is irrelevant as to whether it becomes a snack item or not, but then it does not take a snack item outside the entry of 'Processed Vegetables'. The characteristics of Potato does not change and merely because by processing Potato, “Potato Chips” are produced/manufactured, in my view, it will certainly remain as Potato and would be a 'Processed Vegetable'. 20. Material is available on record that the Ministry of Food Processing Industry has understood processing of Potato Wafers or Chips as Vegetable Processing Industry and even the Govt. of India has understood “Potato Chips” to be a Vegetable Product for the purposes of classification under the Central Excise Tariff Act. 21. I have also gone through the judgment of Karnataka High Court which is in favour of the Revenue, however, I am more inclined to go with the reasonings propounded by the Gauhati High Court, Madras High Court, Punjab & Haryana High Court, which appear to be just and proper. 22. Analysing the above, “Potato Chips” can certainly be taken within the definition of entry 107 taking within its compass all other species including “Potato Chips” belonging to the common genus of the 'Processed Vegetables', and if any particular item is classifiable under a specific entry in a Schedule, such item or commodity must not be relegated to the Residuary entry. Analysing the above, “Potato Chips” can certainly be taken within the definition of entry 107 taking within its compass all other species including “Potato Chips” belonging to the common genus of the 'Processed Vegetables', and if any particular item is classifiable under a specific entry in a Schedule, such item or commodity must not be relegated to the Residuary entry. Even if common parlance test is applied, it can always be noticed that it would certainly fall within the category of 'Processed Vegetables' and in this regard it would be appropriate to quote the observations of Apex Court in the case of Collector of Central Excise, Kanpur v. Krishna Carbon Paper Co. (1989) 1 SCC 150 , which reads as under :- “..But there is a word of caution that has to be borne in mind in this connection, the words must be understood in popular sense, that is to say, these must be confined to the words used in a particular Statute and then if in respect of that particular items, an artificial definition is given in the sense that a special meaning is attached to particular words in the Statute then the ordinary sense or dictionary meaning would not be applicable but the meaning of that type of goods dealt with by that type of goods in that type of market, should be searched...” 23. It would also be appropriate to refer to the judgment of Apex Court in the case of Dunlop India Ltd. v. UOI & Others (1976) 2 SCC 241 , which reads as under :- “..When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause..” 24. In assessees own case, this court for the assessment years 2001-02 to 2003-04, had considered the same product in S.B. STR 196/2009, and vide judgment dt 22.12.2016, where while the claim of assessee was that it was within a specific heading ‘Deshi sweetmeats, kulfi, ice-cream and namkins’, however, the Revenue in the earlier years took it under a generic entry ‘Preserved Food Articles’ and this court after taking into consideration that the same is mixed with preservatives, salt, spices, edible oil, nitrogen, being put in a packet to retain the freshness, held in favour of the Revenue by holding that it would fall in the category of “Preserved Food Articles”. After taking into consideration material, this court finally concluded as under :- “11. I have considered the arguments advanced by the learned counsel for the parties, and in my view, the view of the Tax Board appears to be just and proper and is not required to be interfered with. I do concur with the arguments of the learned counsel for the Revenue that the product in which the assessee is dealing, though technically can be said to be namkin but taking into consideration the specific entry under the Act, it can only be placed in the category of “preserved food article” because the assessee for whatever reasons adds number of preservatives and nitrogen gas may be for purposes that it lasts longer, but adding preservatives and nitrogen is sufficient to hold that it may fall within category of entry 150 of “preserved food article”. The Apex court time and again has observed that in cases like this, test of “common parlance” is to be applied and taking into consideration, if we apply the common parlance test, if a consumer goes to market and asks for namkin, normally the shopkeeper who may be selling both locally made namkin bikaneri bhujia, chana dal, chewra etc. as also the product of assessee, will immediately provide “bikaneri bhujia, chana dal, chewra” etc. and only if one specifically asks for “potato chips, kurkure and cheetos” etc., then the shopkeeper may give such items otherwise the product of namkin like sev, bikaneri bhujia, mogar etc. would immediately be given by the shopkeeper. Even normal ordinary meaning of namkin in my view is bikaneri bhujia, chana dal, chewra or a similar product . 12. and only if one specifically asks for “potato chips, kurkure and cheetos” etc., then the shopkeeper may give such items otherwise the product of namkin like sev, bikaneri bhujia, mogar etc. would immediately be given by the shopkeeper. Even normal ordinary meaning of namkin in my view is bikaneri bhujia, chana dal, chewra or a similar product . 12. In my view, potato chips, kurkure and cheetos can clearly be said to be “food articles” and though may be that it may taste like a namkin, but cannot really be said to be pure and simple namkin, it can only be classified to be falling in the category of “food articles”. 20. The judgments relied upon by the learned counsel for the petitioner are primarily decided on the basis of Excise Laws and taking into consideration the above findings, in my view, can be said to be distinguishable and not applicable on facts. One has to take into consideration the plain and simple meaning of “Namkin” and when taken into consideration the products manufactured, can be held to be classifiable only under “preserved food articles”.” 25. In the light of this fact that in the earlier assessment years for the same product the claim of Revenue was accepted by this court to fall ‘Potato Chips’ in the category of ‘Preserved Food Articles’, and now when the assessee claims to be falling in the category of ‘Processed Vegetables’, which in my opinion, is identical, different view cannot be taken and even the Revenue ought not to have taken divergent view on the same product in the different assessment years. The judgment, in my view, of this court apart from the judgments of Gauhati High Court, Madras High Court and Punjab & Haryana High Court, is in line and squarely covers the case of assessee. 25.1 In my view, the reasoning of this court as well as the above High Courts, appear to be plausible and in view of these facts, the judgment of Karnataka High Court can be said to be inapplicable. 26. Though the question as posed by the assessee does not challenge the sustenance of penalty u/s 61 of the Act, and that may be a case of ignorance and for the sake of completeness this court is satisfied that it is not a case of imposition of penalty. 26. Though the question as posed by the assessee does not challenge the sustenance of penalty u/s 61 of the Act, and that may be a case of ignorance and for the sake of completeness this court is satisfied that it is not a case of imposition of penalty. Once tax has been paid reasonably and justified paid by the assessee, then question of evasion of tax does not arise. 27. Taking into consideration the aforesaid, in my view, the claim of the petitioner is justified and I am inclined to allow the same by holding that “Potato Chips” would fall in the category of entry 107 to be charged with tax @ 4%, and once rate of 4% has been held to be well reasoned and justified, which was claimed by the petitioner, then question of levy of interest does not arise, so also once the claim of the assessee is well reasoned and justified, question of imposition of penalty u/s 61 automatically goes. Even otherwise it is a case of classification of entries and no case can be made out of evasion of tax. 28. In the result, the petitions are allowed, the questions admitted are answered in favour of assessee and against the Revenue, with no order as to costs.