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TMI Blog2019 (3) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... people conversant with the subject matter with which the statue is dealing would attribute to it . It is to be construed as understood in common language. The Determination Orders under section 80 of the Gujarat Value Added Tax Act, 2003 were not pertaining to classification under First Schedule to the Customs Tariff Act, 1975 and therefore are not applicable in the present case - the Un-fried Fryums are not classifiable as Papad under Tariff Item 1905 90 40. Appropriate classification of Unfried Fryums - Held that:- Heading 2106 is an omnibus heading covering all kind of edible preparations, not elsewhere specified or included. Chapter Note 5 provides an inclusive definition of this heading and covers preparations for use either directly or after processing, for human consumption. Chapter Note 6 pertaining to Tariff Item 2106 90 99 also provides inclusive definition and products mentioned therein are illustrative only - the product Un-fried Fryums is appropriately classifiable under Tariff Item 2106 90 99. Goods and Service Tax rate of 18% (CGST 9% + GGST 9% or IGST 18%) is applicable to the product Un-fried Fryums as per Sl. No. 23 of Schedule III of Notification No. 1/2017-Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad and papad pipes of different shapes, sizes and of all varieties (commonly known as un-fried Fryums) would be classified as under : Chapter 19 Heading No. 1905 - Bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa; communion wafers, empty cachets of kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products Sub-heading No. 1905 90 40 - Papad Sub-heading No. 1905 90 90 - Others 2.3 The applicant submitted that they manufacture papad and papad pipes (commonly known as un-fried Fryums) of different shapes, sizes and varieties like Papad basket, Papad Button, Papad Smile, Papad Sudarshan Chakra, Papad Suryamukhi, Papad Snake and Ladder, Papad Chips, Papad Samosa, Papad Coin, Papad Deer, Papad Animal, Papad Moon, Papad 1-2-3-4, Papad Jali, Papad Wheel, Papad Phabets, Papad Aeroplane, Papad Polo Ring Button, Papad Katori, Papad Bamboo, Papad Badi Sev, Papad Refill, Papad Surya Refil, Papad Square Pipe, Papad Micky Ring, Papad Plus Shape, Papad Star, Papad baby ring, Papad Alphabets and of other shapes and sizes. It is submitted that such papad and papad pipes are - (i) Unfried (ii) Not a cooked foo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 357 dated 11.02.2011) held that papad and papad pipes (Fryms) are covered under Entry 9(2) of Schedule-1 appended to the VAT Act, 2003 and exempted from tax. 2.8 The applicant submitted that referring to sub heading No. 1905 90 40 or 1905 90 90 and Hon'ble Supreme Court decision, Karnataka High Court decision and Determination Order under section 80 of the VAT Act, 2003, it is apparently clear that papad, papad pipes (commonly known as un-fried fryms) of all kinds, shapes, sizes and varieties by whatever name called would be classifiable and covered under heading No. 1905 90 40 or 1905 90 90 and exempted from CGST and SGST. 3. It has been informed by the Central Goods & Services Tax and Central Excise Commissionerate, Bhavnagar that no record pertaining to M/s. Sonal Products (applicant) is available with their office as the unit was not registered under the erstwhile Central Excise regime. It has also been informed that as per the GST Tariff, HSN Code '1905 9040' reads as 'papad' and '1905 90 90' as 'other'. 4. We have considered the submissions made by the applicant in their application for advance ruling as well as submissions made at the time of personal hearing. We have als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. ………." 8.3 This view was upheld by Hon'ble Supreme Court in the case of Oswal Agro Mills Ltd. Vs. Collector of Central Excise [1993 (66) E.L.T. 37 (S.C.)] = 1993 (4) TMI 73 - SUPREME COURT OF INDIA. While reiterating the principle that in absence of statutory definitions, they have to be construed according to their common parlance understanding, Hon'ble Supreme Court, in the case of Commissioner of Central Excise Vs. Connaught Plaza Restaurant (P) Ltd. [2012 (286) E.L.T. 321 (S.C.)] = 2012 (12) TMI 149 - SUPREME COURT, has referred to various decisions on the subject and observed as follows :- Common Parlance Test : "18. Time and again, the principle of common parlance as the standard for interpreting terms in the taxing statutes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein like Bhujiya, Chabena by illustration. The learned Collector has interpreted the word 'such as' to mean namkeen should be of a kind of Bhujiya and Chabena. Although it is not in dispute that the item in question is a namkeen. As can be seen from the various items given in Sl. No. 8 namely Papad, Idli-mix, Vada-mix, Dosa-mix, Jalebi-mix, Gulabjamun-mix are all of a type which cannot be eaten straightaway but it requires to be fried. Chabena also comes in a type of item which requires to be chewed like Potato chips or fried Channa Masala or various types of fried masala dals. There can be any number of examples of namkeens in the form of Chabena which are mostly taken as a side dish. It can also be preferred to be eaten after sweetmeat. The item in question being like a Chabena is also a namkeen. The learned Collector's placing restriction that it is to be eaten only after frying and therefore, is not covered under the notification is a very strict way of reading a notification. The notification cannot be read in a way as to whittle down its expression or to make the notification otios. The words 'such as' is only illustrative and not exhaustive. So long as the item satisfies the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that 'fryums' were like 'seviyan'. 11.1 The applicant in their application has submitted that such 'Un-fried Fryums' are not a cooked foods, not used as ready to eat food, not an instant food article or eatable for human consumption. It is further submitted that to make the 'Un-fried Fryums' eatable, deep frying process (in edible oil) is required; that only fried fryums are eatable and used as food articles or eatables. It is also submitted by the applicant that fried, salted or spiced fryums (referred as papad and papad pipes by the applicant) are commonly known and used as 'Namkin'. 11.2 Thus, the applicant themselves have submitted that fried, salted or spiced fryums are commonly known and used as 'Namkin'. On the other hand, 'Papad' even after roasting or frying are known and used as 'Papad' only. Therefore, in commercial or trade parlance also, the 'Un-fried Fryums' cannot be said to be known as 'Papad'. 12.1 The applicant has relied upon the judgement of Hon'ble Supreme Court in the case of Shivshakti Gold Finger wherein the Hon'ble Supreme Court examined the matter under Rajasthan Sales Tax Act, whether 'Gol Papad' manufactured out of Maida, Salt and Starch are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Tariff Act, 1975 and therefore are not applicable in the present case. 15. Therefore, the 'Un-fried Fryums' are not classifiable as 'Papad' under Tariff Item 1905 90 40. 16.1 The next issue which arises for consideration is appropriate classification of 'Unfried Fryums'. 16.2 Chapter Heading 2106 of the First Schedule to the Customs Tariff Act, 1975 is as follows :- HS Code Description of goods Unit (1) (2) (3) 2106 Food preparations not elsewhere specified or included 2106 10 00 - Protein concentrates and textured protein substances kg. 210690 - Other : --- Soft drink concentrates : 2106 90 11 ---- Sharbat kg. 2106 90 19 ---- Other kg. 2106 90 20 --- Pan masala kg. 2106 90 30 --- Betel nut product known as "Supari" kg. 2106 90 40 --- Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrin syrup kg. 2106 90 50 --- Compound preparations for making non-alcoholic beverages kg. 2106 90 60 --- Food flavouring matrial kg. 2106 90 70 --- Churna for pan kg. 2106 90 80 --- Custard powder kg. --- Other 2106 90 91 ..... 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