9911796707
TMI Blog2019 (3) TMI 1817X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Entry. The learned Single Judge has rightly taken note of judicial precedents as well as the principle of such interpretation and has rightly come to a conclusion that only items or goods which cannot be fitted into the broad entries into the schedule of the taxing statute or definition, is required to be taken to the residuary entry or else it is the duty of the Court as also should be to endeavor to read such goods into the broad entries which has been provided by the Legislatures in the taxing Schedule - Entry 14 of Schedule-II of the Act, 1976 as it stands today will also include drinks like Frooti and it is not required to be taken to the Residuary Entry on the argument that it is a fruit product. Further, any reliance placed on the Fruit Products Order, 1955 would be required to be understood within the ambit and object of such legislation. Since the interpretation is in relation to a taxing statute vis-a-vis an Entry therein, even though other legislations or similar legislations could have shown fruit juices by name in a particular entry, non mention of the same will in no manner can compel this Court to accept the line of argument of the Appellants that F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be appropriate to pause here and to notice the principles of law relating to interpretation of tariff entry. Justice G.P. Singh in his celebrated book Principles of Statutory Interpretation (14th Edition) at page 874 has held that the taxing entries have to be construed with clarity and precision so as to maintain this exclusivity. 7. In the matter of M/s Bharat Forge and Press Industries (P) Ltd. v. Collector of Central Excise, Baroda, Gujarat (1990) 1 SCC 532 , the Supreme Court has held in no uncertain terms that only such goods which cannot be brought under the various specific entries in the tariff schedule should be attempted to be brought under the residuary entry. In other words, unless the Department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort can be had to the residuary item. 8. Likewise, in the matter of Commissioner of Central Excise, Calcutta v. Sharma Chemical Works (2003) 5 SCC 60 , the Supreme Court has held authoritatively that it is the primary and paramount responsibility of the State to first convincingly prove and establish that the item under no circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have held in so many words laying down the law relating to interpreting different entries, as under: - 34. It is now a well-settled principle of law that in interpreting different entries, attempts shall be made to find out as to whether the same answers the description of the contents of the basic entry and only in the event it is not possible to do so, recourse to the residuary entry should be taken by way of last resort. 11.Recently, in Commissioner of Commercial Tax, Uttar Pradesh v. A.R. Thermosets Private Limited (2016) 16 SCC 122 , Their Lordships of the Supreme Court have held that residuary entry is made to cover only those category of goods which clearly fall outside the ambit of the main entry. It has been further held as under: - 20. In State of Maharashtra v. Bradma of India L td . (2005) 2 SCC 669 , the Court had observed that the general principle is that specific entry would override a general entry. Referring to the decision in CCE v. Wood Craft Products Ltd. (1995) 3 SCC 454 , it has been ruled that resort can be made to a residuary heading only when by liberal construction the specific entry cannot cover the goods in question. ... 21. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by a fermentation process, and distilled liquor, requiring both fermentation and distillation. In Words and Phrases , Vol. 5, beverage has been defined: Beverage in its common meaning signified liquid designed for drinking by human beings. The dictionary meaning of the word is very wide. It extends to drink of any kind except water. 17.Vide notification dated 24.9.2003, the Government of India, Ministry of Food Processing Industries has clarified that Frooti , Maaza and Slice are Ready to serve Fruit Beverage and that company has been allotted a FPO licence No. 11419 and further, the above products do not fall under the classification of either Aerated Waters or Carbonated Waters. 18.Following the principles of law laid down by the Supreme Court in A.R.Thermosets Private Limited's case (supra) noticed hereinabove in which it has been held by Their Lordships that residuary entry is made to cover only those category of goods which clearly fall outside the ambit of the main entry, in the instant case, the determination order as well as two authorities have clearly held that frooti is beverage, which is apparent from dictionary meaning of bever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct was thermally processed and carbon dioxide was added to it as the preservative. 21.Same is not the case here. In the present case, frooti is beverage within Entry 14 of Schedule II of the Act of 1976 in the name being non-alcoholic drink and beverage, ice-cream and candy is of vide import and common parlance test would apply and the product frooti will be covered under Entry 14 of Schedule II of the Act of 1976 and would be charged at the rate of 2%. 22.The petitioners cannot be allowed to make separate entry when frooti is covered within the specific entry and residuary entry cannot be resorted into. In the considered opinion of this Court, both the authorities are absolutely justified in holding that frooti is a product covered by Entry 14 of Schedule II of the Act of 1976. I do not find any merit in the submission made on behalf of the petitioners in this writ petition. 6. Aggrieved by the impugned judgment dated 11.09.2018, the present appeal has been preferred where again learned Senior Counsel representing the Appellants harped on the same line of arguments that since Frooti was a fruit product, therefore, it has to be read in the Residuary Entry bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be fitted into the broad entries into the schedule of the taxing statute or definition, is required to be taken to the residuary entry or else it is the duty of the Court as also should be to endeavor to read such goods into the broad entries which has been provided by the Legislatures in the taxing Schedule. 14. We are in full agreement with the reasons provided by the learned Single Judge and we hold that Entry 14 of Schedule-II of the Act, 1976 as it stands today will also include drinks like Frooti and it is not required to be taken to the Residuary Entry on the argument that it is a fruit product. 15. The Court further records that any reliance placed on the Fruit Products Order, 1955 would be required to be understood within the ambit and object of such legislation. Since the interpretation is in relation to a taxing statute vis-a-vis an Entry therein, even though other legislations or similar legislations could have shown fruit juices by name in a particular entry, non mention of the same will in no manner can compel this Court to accept the line of argument of the Appellants that Frooti by virtue of being a fruit product is not required to be treated as a non-alco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
