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TMI Blog2016 (12) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... the purified water under the brand name “Shital” in a capsule jar i.e. in the jars / water jugs having the capacity of 5 or 10 liters and having a top which is closed, it can be said that the assessee is selling the “purified water” under the brand name in a capsuled jar and therefore, Entry 154 of Schedule IIA of the Sales Tax Act shall be attracted and the “purified water’ sold by the assessee fall under Entry 154 of Schedule IIA of the Sales Tax Act. Appeal disposed off - decided in favor of Revenue. - Tax Appeal No. 2325, 2326 of 2009 - - - Dated:- 23-11-2016 - M. R. Shah And B. N. Karia, JJ. Mr N C Shukla, Advocate for the Appellant Mr Hardik Vora, for the Opponent JUDGMENT ( PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] As common question of law and facts arise in both these appeals, both these appeals are decided and disposed of together by this common judgment and order. [1.1] In both these appeals the following substantial questions of law arise for the determination of this Court. (I) Whether on the facts and in the circumstances of the case, the Gujarat Value Added Tax Tribunal is justified in law in holding that purified water when so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the same is sold under a brand name in sealed, capsuled or corked bottle, jar or pouch, the same shall fall under Entry 154 in Schedule IIA of the Sales Tax Act and therefore, the assessee is liable to pay the sales tax as per Entry 154. That the Assessing Officer did not agree with the same and held that purified water sold by the assessee falls under Entry 154 of Schedule IIA of the Sales Tax Act and consequently raised the demand of tax accordingly. [2.3] Feeling aggrieved and dissatisfied with the assessment order passed by the Assessing Officer, the assessee preferred revision application before the first Revisional Authority. That first Revisional Authority held that the assessee is selling the purified water under the brand / trade name Shital and confirmed the order passed by the Assessing Officer. On a further revision the learned Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as Tribunal ) by impugned common judgment and order has held against the assessee by holding that purified water falls under Entry 154 of Schedule IIA of the Sales Tax Act subject to payment of tax accordingly. [2.4] Feeling aggrieved and dissatisfied with the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.3] It is further submitted by Shri Hemani, learned Advocate appearing on behalf of the assessee that the learned Tribunal has materially erred in coming to the conclusion that the assessee is selling the water under a brand name of Shital . It is submitted that as such the assessee is selling the water in loose jars which are returnable by the customers and in order to identify the jars the assessee has affixed the stickers of the assessee Shital on the jars so that while getting back the said jars the assessee is able to identify the same. It is submitted that therefore merely on the basis of the stickers of assessee applied on the jars, conclusion cannot be drawn that the purified water is sold under a brand name. [4.4] It is further submitted by Shri Hemani, learned Advocate appearing on behalf of the assessee that it also cannot be said that the assessee is selling the purified water in a sealed container . Relying upon the decision of the Hon ble Supreme Court in the case of Balkrishna Hatcheries reported in 148 STC 137 (SC), it is submitted that as held by the Hon ble Supreme Court a container is considered to be a sealed container if it is closed in a manner that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax accordingly. [6.0] Heard learned Advocates appearing for respective parties at length. The short question posed for consideration of this Court is whether purified water sold by the assessee would fall under Entry 154 of Schedule IIA to the Sales Tax Act as contended on behalf of the Revenue or it would fall under Entry 93 of Schedule I to the Sales Tax Act as contended on behalf of the assessee? [6.1] It is not in dispute that the assessee is selling the purified water . The assessee also is selling the purified water in 5 or 10 liter water jugs / jars having a top which is closed. That on the jars there is a sticker of the assessee Shital . It is not disputed that Shital is a trade name of the assessee. Therefore, considering the definition of brand name as defined under Section 2(3A) of the Sales Tax Act, it can safely be said that the assessee is selling the purified water under the brand name, which is one of the condition / requirement of Entry 154. [6.2] It is the case on behalf of the Revenue that the requirement for selling the items mentioned in Entry 154 under the brand name in a sealed, capsuled or corked water jar or pouch , shall be applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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