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TMI Blog2017 (1) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... ct falls under specific entry, its end use cannot determine its classification. The product in question would fall in category of deoiled cake including soyabean meal, as specified in Entry No.3 of Schedule I of the M.P. VAT Act, 2002 - petition allowed - decided in favor of petitioner. - Writ Petition No. 3221 / 2015 - - - Dated:- 3-1-2017 - Mr. S. C. Sharma And Mr. Rajeev Kumar Dubey, JJ. ORDER Per S. C. Sharma, J. The petitioner No.1 before this Court is an Association of Soyabean Processors and it is incorporated and registered u/S. 25 of the Companies Act. Petitioner No.2 is again a Company incorporated and registered under the Companies Act 1956 and the present petition has been filed, as stated in the Writ Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OC ie., Soyabean Seed being notified goods for the purpose of Sec. 14(1B), the manufacturers of DOC are entitled to get full input tax rebate in respect of input tax required to be paid to the purchasing dealer in view of the special provision contained in Sec. 14 (1B) of the Act. A notification has also been issued by the State Government on 1/4/2011 whereby Soya DOC has been notified for the purpose of Sec. 14(1B) and the manufactures of Soya DOC are entitled to claim full ITR in respect of input taxes paid by them for purchase of raw-material ie. Soya Seeds. Further contention of the petitioners is that as per Sec. 26A of the MP VAT Act 2002, which has been inserted w.e.f. 24/12/2007, there is a provision of deduction of tax at source in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d notice u/S. 70 to the petitioner and after hearing the petitioners, he has passed the impugned order. The learned Commissioner by the impugned order dt. 26/6/2014 has arrived at a conclusion that the Defatted Soyabean products which are superior in quality and sold in market under different names cannot be said to be DOC or Soyabean Meal according to common parlance and classified the Entry No.3 of Schedule I of the M.P. VAT Act 2002 in the category of cattle feed or food supplement on the basis of its use as cattle feed used in poultries or fisheries which are also tax free. Contention of the petitioners is that the impugned order passed by the respondent and the classification made by him, is on erroneous basis and based upon erroneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances protein percentage in the DOC, without adding any other material. Such DOC with higher protein percentage is sold in the market as defatted soya product or hypo soya product and are sold at little higher price than the normal DOC. The Commissioner has merely on the basis of the name of the product and the price of the product has treated these defatted soya product or defatted hypro soya products as different from normal DOC. In the impugned order, although the Commissioner has accepted that the soya hypro products are better or superior quality of DOC, has treated them as different commodities from normal DOC. Contention of the petitioner is that the products in question are nothing but superior varieties of DOC and continue to fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g but different forms of DOC and would, therefore, be covered in de-oiled cake including soya meal. Learned counsel for the petitioner has further placed reliance upon the judgment delivered by the apex Court in the case of Commissioner of Commercial Tax, U.P. Vs. A.R. Thermosets (Pvt.) Ltd., reported in (2016) 29 STJ 561 (SC), wherein the apex Court held that Bitumen emulsion is also covered in the entry pertaining to Bitumen. The apex Court opined that Bitumen is a generic expression which would include different types of bitumen. The nature and composition of product and the item specified in the entry is important. Matching of the goods with the entry in the schedules is tested on the basis of identity of the goods in question in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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