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TMI Blog2016 (5) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... ands, would the drinks made from the said powders be any less of “beverages” because they are “health drinks”? We think not! Merely because a drink has more nutritive value in the form of proteins and meant for a certain class of consumers, it would not cease to be a “beverage”. even if the potable drink made from the said powders are perceived as health drink, it does not fall out of the purview of the Entry. It has been held by the Supreme Court in State of Maharashtra v/s. Bradma of India Ltd. (2005) 2 SCC 669 that the residuary entry could be resorted to only when by a liberal construction the specific entry cannot cover the goods in question. In the present case, in view of the specific Entry 107-C (11)(g) to the Statute, it would override the general Entry. Even otherwise, we do not think that the drink prepared from the said powders can be excluded from the term `beverages', even assuming that the principle of common parlance were to apply. Therefore, the Tribunal has rightly concluded that the `powders' of the Respondent is covered under Schedule Entry C-107 11(g) and no interference is warranted with the impugned order of the Tribunal. - Decided against the revenue - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame period and sought the rates of tax for the following products: (1) 100% Whey Gold (Straw 2.07 Lbs, Cookie Cream 2.073 Lbs, Choco Mint 2.073 LBs, Straw 5.174 Lbs and Vanilla Ice Cream 5 Lbs) (2) Syntha 6 (Chocolate 5 Lbs) (3) Serious Mass (Choc 6 Lbs) (4) Platinum Hydrowhey (Chocolate 3.5 Lbs) (5) True Mass (Chocolate 5.75 Lbs and Strawberry 5.75 Lbs) The aforesaid products of the Respondent-Dealers are hereinafter referred to as `the said products'. 4 It was the case of the Respondent-Dealers before the Commissioner of Sales Tax that they were dealers in non-alcoholic beverage concentrate in powder form and the said products are general purpose protein powders from which non-alcoholic beverages are prepared. These powders are manufactured in USA and the proteins are obtained from whey products which are remnants of cheese making process and are sold in flavours and the said products are therefore covered under Schedule Entry No.C-107 (11)(g) of MVAT Act which are exigible to tax @ 5%, which Entry reads as follows: Powders, Tablets, Cubes, Crystals and other solids or liquids from which non-alcoholic beverages and soups are prepar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho seek to be muscular or gain weight or become lean. He submitted that the said products carry a warning that they are not to be consumed by persons under 18 years of age and pregnant feeding women. The said products are food supplements and/or health drinks and cannot be termed as `beverages'. Learned Counsel for the Appellant submitted that the Commissioner of Sales Tax had rightly classified the said product and had rightly held that the said products are not powders from which non-alcoholic beverages are prepared and they would be covered by Schedule Entry E-1 of MVAT Act and that the Tribunal had erred in classifying the product under Schedule Entry C-107 (11)(g) of the MVAT Act which was liable for the VAT for the relevant period at the rate of 5%. Learned Counsel for the Appellant, in support of his submission of principle of common parlance, has placed reliance upon the judgment of the Supreme Court in the case of Commissioner of Central Excise, New Delhi vs. Connaught Plaze Restaurant Private Limited, New Delhi (2012) 13 SCC 639, and inter alia invited our attention to paragraph 20 of the judgment, which reads as under: 20. Time and again, the principle of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oups are prepared. 5% The Schedule Entry E-1 reads as follows: Name of commodity Rate of tax (%) All goods not covered in any of the other schedules 12.5% 14. It is well settled that the Entry in the Schedule is to be construed as it stands and when the Entry is clear and equivocal, it does not demand any outside interpretation. There can no dispute that the said products of the Respondent-Dealers are `powders' from which nonalcoholic drinks are prepared for the purpose of consumption by mixing the said powders with liquids like water, milk, juice, etc. In our view, there is no warrant for restricting the meaning of term beverages in the Schedule Entry C-107 (11)(g) as sought to be contended by the learned Counsel for the Appellant. The Entry in our view is clear and unambiguous. The Entry is couched with the non-technical word beverages , which has to be understood in its ordinary meaning. The meaning of beverage as stated in the Concise Oxford English Dictionary is drink other than water . The question is, while construing the Entry as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) Powder, tablets Soft drink powders, tablets and crystals for which nonalcoholic beverages are prepared by adding any potable liquid 12% 1-4-1989 to 30-4-1992 C-II-47 i) Aerated, mineral, medicinal tonics, distilled or demineralised water and water sold in sealed, capsuled or carked container but excluding water for injection 12% 1-5-1992 to 8-9-1992 ii) Non-alcoholic beverages including vegetable or fruit juices, squashes, syrups and cardials when sold in sealed, capsuled or carked bottle, jar, tins drums 2% 1-5-1992 to 8-9-1992 iii) Powders, tablets, cubes, crystals, and other solids from which nonalcoholic beverages and soups are prepared 12% 1-5-1992 to 8-9-1992 C-II-47 i) Aerated waters and non-alcoholic beverages (including fruit juices, squashes, syrups, and cardials) when sold in sealed, capsuled or carked bottles, jars, tins, drums or other containers 12% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e covered by E-I schedule liable for 12.5% of tax. The Tribunal inter alia has observed as follows: Therefore, now it is clear that impugned powders even if made with reference of achieving some goal they are nothing but beverages for which the above schedule entry is available in statute book from 1-2- 2006 to 31-3-2013 hence the relevant schedule rate will be 4% upto 31- 3-2010 and 5% w.e.f. 1-4-2010. We want to make it clear that during the period 1-4-2005 to 30-4-2005 and from 1-4-2005 to 31-1-2006 such products were no place in schedules A,B,C,D therefore, during that period they will be covered under schedule Entry E-1 and from 1-4-2013 onwards, that schedule entry is deleted hence that will be covered under E-1 only. As we have decided the classification as above, we don't think, any prospective effect be given from 01-04-2013 onwards when for a period of 01-04-2005 to 31-01-2006, there was no place to those products in Schedule Entry C. 16. In our view the Tribunal has analyzed the issue in depth and by a well reasoned order rightly held that the said products of the Respondent-Dealers are classifiable under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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