9911796707
TMI Blog2015 (10) TMI 2629X X X X Extracts X X X X X X X X Extracts X X X X ..... processes of production, we see that there are efforts being made, and suggestions extended; in the international scientific domain; to utilise spent grain , primarily as fodder, and even as food substitutes even for humans, particularly in exceptionally marginalised and economically challenged social groups in certain parts of the world. But, in the contextual content of a taxing statute in a land like India; particularly in the State of Kerala; with the judicial prudence that we are expected to have, we are unable to visualise that spent grain would be reckoned as an edible substitute for human beings; here and now. In this view of the matter, we cannot but repel the suggestion on behalf of the Revenue as to the probable varied utility o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling under clause (a) or (c) of section 6(1) of that Act? 3. On behalf of the assessee, the propositions formulated and addressed upon, are threefold. Firstly, it was argued that the burden of classification was illegally put on the assessee as it was for the Revenue to show that the product falls into the category other than the one claimed by the assessee. According to the assessee, the Revenue produced no evidence in that regard and therefore, the assessee's claim had to be accepted. The second argument was that where there was a specific entry/heading, that had to be preferred to the residuary entry/heading. Thirdly, it was argued that 'spent grain' is nothing but 'an article of cattle feed', both in trade parlance and in its use; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that, such residuary, which is a mixture of maize bran and of other leguminous plants, could be used as cattle feed and the assessee sells that residue to agriculturists, who use it as cattle feed. On that factual premise, it was argued that the Appellate Tribunal was justified in holding that 'spent grain' does not fall under the First Schedule, in which there is no specific entry of any such item. He, thus, supported the decisions of the Appellate Tribunal and argued that the revisions and the writ petition are liable to be dismissed. 5. Sub-section 4 of section 6 of the Act provides that goods specified in the First Schedule shall be exempted from tax. The 'Description of Goods' at Sl. No.3 (three) in the First Schedule stands with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such residuary is a mixture of maize bran and of other leguminous plants. The assessee pleaded that such 'spent grain' is sold to agriculturists who use it as cattle feed. Item 3(2) of the First Schedule to the Act deals with bran, sharps and other residuaries, whether or not in the form of pellets, derived from sifting, milling or other working of cereals or of leguminous plants or pulses. (a) to (f) thereof deal with some of those items and (f) in particular deals with other leguminous plants. The assessee, therefore, contended that the product could be classified as one coming under that Entry and is therefore exempted from tax. This contention of the assessee has been rejected by merely saying that the contention raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, with reference to any entry in Schedule III, where such articles of goods are specifically mentioned. Therefore, the goods in question, namely 'spent grain', which is a residue of the process of production of 'beer', is not chargeable with tax under the Act as it is exempted in terms of the provisions of section 6(4) of the Act. This is the irresistible conclusion on the basis of the statutory materials which govern the question in hand. This is the inexcusable conclusion and result of the plain interpretation of the relevant statutory provisions, as well. 'Spent grain' does not fall either under clause (a) or (c) of section 6(1) of the Act. On pure interpretation of the relevant statutory provisions, we hold so. 6. Bearing in mind the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on behalf of the Revenue as to the probable varied utility of 'spent grain' and to hold that the Revenue had established that the said substance is excluded from Sl. No.3 (three) in the First Schedule of the Act. 7. The findings rendered by the Appellate Tribunal, as are impugned in the captioned revisions, are contrary to law as held above. The Tribunal had failed to decide such questions of law, though they arose for decision in the appeals before it. It had also erroneously decided questions, fundamentally relating to the casting of the initial onus and the consequential burden of proof as to appropriate relevant entry among the classification of goods; to adjudicate and conclude as to whether the commodity in question is exempted ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
