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TMI Blog2003 (6) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the contents of the bags were cornflakes of inferior quality coming under the entry No. 50 of Schedule IV to the Act, 1994. The case was heard on July 30, 1999 and penalty amounting to Rs. 64,680 was imposed for carrying the taxable goods without proper and valid waybills. 3.. Revision was preferred against the said order of penalty passed by the Commercial Taxes Officer, before the Assistant Commissioner and thereafter before the Deputy Commissioner. Both the revisional authorities confirmed the order of the learned Commercial Taxes Officer holding the goods as cornflakes of inferior quality. According to the petitioner, the goods were the product of maize and are sold in the market as "makka poha" (parched maize) which in fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 9 of the Trade Circular No. 2 of 2000 dated March 31, 2000 issued by the Directorate of Commercial Taxes, Government of West Bengal, where maize of all varieties were shown to be exempted from sales tax and subsequently was included in serial No. 235 of Schedule IV at the rate of 4 per cent tax. According to the learned lawyer, the impugned orders passed by the authorities therefore are illegal, unjustified and without proper application of mind, hence are liable to be set aside. 6.. The learned State Representative submits that "makka poha" cannot be cereals under the entry No. 14 of Schedule I. The Legislature has already specified the products for exemption made from maize. The entry No. 35 of Schedule I clearly puts exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case also, there is no separate entry for maize and the maize reduced into edible form by heating or parching without any addition of different ingredients. Whereas the trade circular No. 2 of 2000 dated March 31, 2000 shows that prior to the date of publication maize products of all varieties were exempted from sales tax. Since maize was exempted from sales tax such exemption obviously used to be given as we find, accepting as cereals under item No. 14 of Schedule I. 9.. The question, therefore, arises if "makka poha" is the product totally different commercial commodity to be excluded from the maize or maize products. The principle laid down in a case of Pyare Lal Malhotra [1976] 37 STC 319 (SC) at page 325 may be taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be taxed again. In the instant case, the respondent accepted "makka poha" as inferior quality of cornflakes without denying the fact that such goods are the products of boiled maize without any further chemical changes like that of cornflakes. It was for the respondent to prove that the product had become a different commercial commodity after parching losing its identity of maize. The responsibility of proving such fact that "makka poha" is totally a different commodity lies upon the respondent. In a case of State of Kerala v. Namputhiris Pickle [2000] 117 STC 312 (SC) it was held that the chilli powder though produced from chilli is the result of process of manufacture still, if at all, it is a commodity of commercially distinct fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent Nos. 1, 2 and 3 therefore, in our opinion, are not in accordance with the settled principles of law and are liable to be set aside. 13.. The orders dated August 4, 2000, October 7, 1999 and July 4, 2000 passed by the respondent Nos. 1, 2 and 3 are accordingly set aside. "Makka poha" is declared to be a cereal and exempt from tax under item No. 14 of Schedule I in the Act, 1994. The order of the seizure therefore, is invalid and accordingly set aside. The application is allowed without costs. Let a plain copy of this order be given to both parties. 14.. After delivery of the order, the learned State Representative prays for time to move before the higher forum against the order passed and accordingly prays for stay of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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