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TMI Blog2001 (11) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... x. The Deputy Commissioner concurred with the claim of the revisionist and allowed the appeal. The tax liability was reduced accordingly. The department felt aggrieved and filed Second Appeal before the Trade Tax Tribunal, Ghaziabad. 2. The Trade Tax Tribunal by the impugned judgment and order dated 14th May, 2001 partly allowed the appeal. The Tribunal agreed with the finding of the First Appellate Authority that Painjon was medicine of the schedule and was taxable at the rate of 7.5 per cent (with additional tax). 3. So far as taxability of Swad tablets and Bubble Gum is concerned, the Tribunal held that Swad tablet was not confectionery item and it was unclassified item and was liable to tax at the rate of 10 per cent (with additional tax). Bubble Gum was also held not to be sweet meat or confectionery item. The Tribunal, therefore, held that the sale of Bubble Gum was taxable as unclassified item and was to be taxed at the rate of 10 per cent. 4. Aggrieved by the order of the Tribunal, the assessee has filed the present revision. 5. Sri Ashok Kumar, learned Counsel for the revisionist and Sri B. K. Pandey, learned Standing Counsel for the respondent have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to this effect was made. Therefore, it was wrongly stated before the Tribunal that the true copy of the judgment of the First Appellate Authority was received by the office of the respondent authority on 25th August, 1998. Though Sri B. K. Pandey, learned Standing Counsel has stated that he is not aware of the correct facts but it is argued that there is no affidavit in support of such allegation and besides this the copy of the judgment filed with the memo of revision shows that Second Appeal No. 357 of 1999 was decided by the Tribunal. This clearly shows that even if defective Appeal No. 31 of 1998 was registered the defect was subsequently removed and regular Appeal No. 357 of 1999 was registered. There is substance in the submission of Sri B. K. Pandey, learned Standing Counsel. What the Tribunal has decided is not the defective Appeal No. 31 of 1998 but the regular Appeal No. 357 of 1999. Even if the appeal was filed beyond the period of limitation and it was registered as time barred appeal, delay must have been condoned and only thereafter a regular appeal could be registered. Therefore, the judgment and order of the Tribunal cannot be challenged on first ground taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that sub-section (9) of Section 10 of the Act provides that the members of the Tribunal shall sit in such benches of one, two or more members, as may be constituted from time to time, and do such work of the Tribunal as may, subject to sub-section (10) and the rules, be allotted to them, by order or in accordance with the directions of the President of the Tribunal. Sub-clause (d) (i) of sub-section (10) of Section 10 of the Act provides that the President may, if he so thinks fit direct an appeal to be heard and decided by a larger bench. In view of these provisions of law if the Trade Tax Tribunal in question did not agree with the view taken by another bench of the Tribunal as already pointed out above it would have been proper for the Tribunal in question to have referred the matter to the President for constituting a larger bench so that there may not be conflicting judgments of different benches of the Tribunal. In any case one bench cannot sit in appeal or revision against the judgment and order of the another bench of the Tribunal. It is pointed out by the learned Counsel for the revisionist that in M/s. Gum India Limited, Kanpur v. Commissioner of Trade Tax, reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffee is 'sweetmeat' as contemplated by the exemption Notification, what is required to be considered is the object of the notification and the context in which that word is used in the notification. 13. A close reading of the Notification discloses that the State intended to give benefit of exemption or reduction in rate to those new industrial units and existing units undertaking expansion, diversification or modernization which were to make substantial capital investment.....................Entry 18 of Annexure II is also suggestive of the same intention. The items mentioned therein viz., 'sweetmeat', 'namkin', 'reori' and 'gazak' are usually prepared by shopkeepers and restaurants for selling them to their consumer-customers. They are not manufactured in factories having plants and machinery. 14. A correct reading of the notification further discloses that the words 'commodities of like nature' in Entry 18 were meant to include commodities other than those specifically mentioned. What they indicate is that other commodities of like nature also were not to get benefit of the exemption. To that extent they did widen the scope o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taxed as such. Undisputedly the rate of tax on confectionery is 7.5 per cent (with additional tax). 18. Another ground on which the Tribunal took the view that Bubble Gum or Chewing Gum is not Sweetmeat or confectionery is that the Commissioner of Sales Tax in a decision given under Section 35 in the case of M/s. Newtrin Chewing Gum Products Company Pvt. Limited, S.T.I. 1985 page 21 held that in chewing gum sugar is an almost insignificant.............over it is not eatable. Its use is entirely different. Children use it just for a fun and athletes for controlling the breath. In common parlance also nobody treats it as an item of confectionery. I, therefore, hold that chewing gum is an unclassified item. This decision of the Commissioner, U. P. Trade Tax Act under Section 35 could not hold good in view of the decision of the Tribunal in M/s. Gum India Limited referred to above. The Tribunal has committed error in relying upon this decision. 19. Now remains the question about the taxability of Swad Candy. As already pointed out above, the assessee claimed that Swad Candies were Ayurvedic medicines and were taxable as such, though the first Appellate Authority h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the authoritative text books or as per formulae given in it. The petitioner has not pointed out the formula of Bhav Prakash which has been adopted for manufacturing Swad . It is not manufactured strictly in accordance with the formulae given in it ........................................... 10. The true character of a preparation cannot be ascertained from the description of the product in the advertisement or label as an ayurvedic medicinal preparation. To decide this, one shall have to look to the character of the constituents and the use of product [Dendwala v. State of Gujarat, (1993) 88 S.T.C. 459 (Guj)]. It is usual for a manufacturer who sells his products to exaggerate the virtues of his product but it is not safe to rely on all these claims. Mere obtaining licence under certain Acts and getting clearance under certain other Acts cannot entitle a person to obtain benefits under an Act which has nothing to do with these Acts. 21. Thus, the Rajasthan Tribunal came to the conclusion that Swad tablets were not ayurvedic medicines but were confectionery items and it should be taxed as such. Relying upon this decision of the Rajasthan Taxation Tribunal learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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