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TMI Blog2016 (2) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... mended would go to show that aerated water and soda water are the aerated products included in the entry. Sub entries 2 to 4 refer to soft drinks which are not aerated or branded and to health drinks. This is clearly because aerated branded soft drinks have already been included in the tax net with a higher rate of tax. The product answers to the description of aerated branded soft drink which would fall specifically within the confines of Section 6(1)(a) - Decided against the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and it was only a revision from an order of the Tribunal decided on the basis of the materials produced and the only consideration was whether the Tribunal had decided erroneously or failed to decide any question of law. The scope of the clarification under Section 94 being much wider and having far reaching consequences, the committee should have applied its mind to the questions raised before it, especially in view of the binding judgment of a Division Bench of this Court in W.A.No.2418/2015, wherein the question of clarification was directed to be decided on its merits. It is further urged that the product had been classified as a 'Fruit Juice Based Drink' with HSN Code No.2202.90.20 under the Excise Tariff Act. It is contended that the classification of the product as a 'Fruit Juice Based Drink' had been upheld by the Customs, Excise and Service Tax Appellate Tribunal and the Civil Appeal filed against the said finding by the Revenue had been dismissed. It is also contended that till the amendment of the KVAT Act in 2007, the product was being subjected to tax as a 'Fruit Juice Based Drink' by the authorities in Kerala as well and no change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CESTAT, is labelled by the appellant as containing 12.7% fruit juice content in the instant case. 6. It is true that the committee constituted for the purpose of Section 94 of the Act had relied almost entirely on the findings of a Division Bench of this Court in OTR No.114 of 2013 to hold that the product was an aerated branded soft drink and could not be classified as a 'Fruit Juice Based Drink'. However, what is before us is a first appeal under Section 62(1) of the KVAT Act. On agreement of the counsel appearing on either side, we deem it appropriate at this stage to consider the question of classification rather than remanding the matter to the committee to be decided afresh. 7. It is not in dispute before us that the product in question is a soft drink. It is alleged that it had been earlier subjected to tax at 12.5% (later 13.5% and 14.5%) on the basis of its classification as a Fruit Juice Based Drink. Before the amendment of the list, going by the provisions contained in SRO 82/2006, the Entry 71 originally reads as follows:- "Non-alcoholic beverages and their powders, concentrates and tablets including (i) aerated water, soda water, mineral water, water sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des in respect of all the relevant entires also stood obliterated by the amendments. In the above circumstances, the authority was called upon to decide on the classification of the product on the basis of common parlance or commercial parlance. 10. No HSN codes are mentioned in respect of any of the entries in the KVAT Act. Therefore, the nature of the product is to be decided on common parlance or commercial parlance. The learned Senior Counsel for the appellant contends that a wealth of material, including orders of the authority under the Excise regime, which was affirmed by the Apex Court as well as certifications issued by competent technical authorities, had been placed before the authority to show that the product was a 'Fruit Juice Based Drink'. Therefore, the only conclusion which the authority could legally have reached was that the product was liable to be included in the residuary appendix 5 in Entry 71 of the list of goods taxable at concessional rates. No material was produced by the Revenue to warrant an inclusion of the product as an aerated branded soft drink and therefore the finding of the authority, which was based solely on the findings of a Division ..... X X X X Extracts X X X X X X X X Extracts X X X X
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