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TMI Blog2005 (3) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... ntain charging provisions. As such the onus to prove that the malted barley does not fall within foodgrains or cereals was on the Revenue. They have failed to discharge the onus. Both the Tribunal and the High Court have concurrently found that malted barley is a foodgrain or cereal for the purposes of the three notifications for reasons that cannot be discarded as perverse. We therefore see no reason to interfere with their conclusion. - RUMA PAL AND ARIJIT PASAYAT AND THAKKER C.K. JJ. Punit Dutt Tyagi, Rajiv Shankar Dwivedi and S.B. Dixit, Advocates, for the appellant. S.K. Bagaria, Senior Advocate (dhruv Agarawal and Praveen Kumar, Advocates, with him), for the respondent. -------------------------------------------------- The judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng cereals and pulses other than cereals and pulses as defined in section 14 of the Central Sales Tax Act, 1956, would be liable to tax at 4 per cent. 5.. Earlier the respondent-assessee had claimed that the malted barley sold by it was covered by the word "cereal" in section 14 of the Central Sales Tax Act, 1956. The High Court had rejected this claim by its judgment dated 16th September, 1993, and held that malted barley was not a cereal within the meaning of section 14 of the 1956 Act. 6.. The respondent-assessee then moved five rectification applications before the High Court alleging that the alternative cases that had been argued by the respondent had not been noted or dealt with by the High Court in the order dated 16th September, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.. The High Court dismissed the revision application of the department by independently considering the definitions given in various dictionaries and other authoritative works and came to the conclusion that malt is merely another form of barley and was a foodgrain within the meaning of the three notifications. 9.. Impugning the decision of the High Court learned counsel for the department submitted that the Tribunal and the High Court had erred in holding that the malt was either a cereal or a foodgrain when the order of remand, which had not been challenged by the respondent-assessee, had already held that the malt was not a cereal. 10.. The submission is misconceived. By the order dated 21st September, 1994, the High Court had merely he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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