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TMI Blog2023 (8) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... MI 392 - PUNJAB AND HARYANA HIGH COURT ] held that though the Revisional Authority has to act of his own motion; he can indeed exercise such power whenever he receives any information about any illegality or impropriety committed by any of his subordinate authorities; that such information may come from any source whether it be the department or any other person, including an assessee; and the object of giving this power of Revision to the Commissioner is for proper administration of the Act, and it is his duty to see that neither the assessee should be allowed to escape from the tax net, nor should he be required to pay tax ,which he is not liable to pay under the law. In fact the Supreme Court in THE BOARD OF REVENUE, MADRAS VERSUS RAJ BROTHERS AGENCIES [ 1973 (2) TMI 114 - SUPREME COURT ] also held that even an assessee can invoke the suo moto revisional power of the Board of Revenue under the Madras General Sales Tax Act, 1959. The Supreme Court held that such a suo moto revisional power is conferred on the Board to remedy any injustice and it was open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee was liable to pay VAT on its sales of milk cream, but is not being assessed for the previous five years. The suo-motu Revision proceedings initiated by respondent no. 1 6) Thereafter, Suo Moto Revision was entertained by the Additional Excise and Taxation Commissioner-cum-Revisional Authority (respondent no. 1) (Suo Moto Revision No.03/2011-12) on 17.09.2011, after calling for the orders passed by the Assessing Authority (2nd respondent) on 16.02.2009 27.01.2010 and noticing that the assessee had not deposited the tax on fresh milk cream for the said period. 7) He thereupon issued a Notice on 17.09.2013 to the assessee to show cause against the proposed revision of the above said orders under Section 46(1) of the Act. Reply of assessee to the suo-motu Revision show cause notice 8) Reply to the said notice was submitted by the assessee contending that though it is selling fresh milk cream, it is nothing but fresh milk, wherein through a separator, the cream contents up to 25% (low fat cream) is retained, as a result of which, low fat milk cream is the outcome; and the said article is being sold under the name fresh cream by the assessee which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee filed a Revision under Section 46(3) of the Act before the Himachal Pradesh Tax Tribunal. 12) Before the Tribunal, the assessee contended that the intention of Entry 23 making fresh milk and pasteurized milk, tax free, is that milk sold in natural form should be a tax free product because nothing had been done to make the product commercially a different product. 13) It was contended that HSN Classification Entry no. 16 for the purpose of Central Excise also contains the category of fresh milk and pasteurized milk and includes within it milk cream as well, which is either low fat or full cream, and therefore, milk cream should be treated as milk only and should not be taxed. 14) Reliance was placed by the assessee on the judgment in Indodan Milk Products Limited versus Commissioner of Sales Tax, UP (1974) 33 STC 381 wherein, a view was taken that the expression milk not having been defined in the Act, the said word should be given a meaning which is given to it in common parlance, and has to be understood in the same sense in which it is understood by those who deal in the commodity; and in common parlance the fluid secreted by the mammary glands of a mamilla, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een disposed of by, any Authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein, and on finding the proceedings or the orders prejudicial to the interest of revenue, he may pass such order in relation thereto as he may think fit. 25) Similar provision is contained in the Punjab General Sales Tax Act, 1948. 26) A Division Bench of the Punjab and Haryana High Court in Hotel Oberoi Mountview versus Assessing Authority, Union Territory, Chandigarh 1996(102) STC 0433 (P H) held that though the Revisional Authority has to act of his own motion; he can indeed exercise such power whenever he receives any information about any illegality or impropriety committed by any of his subordinate authorities; that such information may come from any source whether it be the department or any other person, including an assessee; and the object of giving this power of Revision to the Commissioner is for proper administration of the Act, and it is his duty to see that neither the assessee should be allowed to escape from the tax net, nor should he be required to pay tax ,which he is not liable to pay under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced reliance on the judgment of the Supreme Court in Commissioner of Central Excise, Delhi-III versus Uni Products India Ltd. (2020) SCC Online SC 429 to contend that Harmonized Commodity Description and Coding System , Explanatory Notes issued by the World Customs Organization, have strong persuasive value and Courts can rely on them. He contended that there is a general trend of taking assistance of these Explanatory Notes to resolve entry related disputes and the Tribunal erred in refusing to place reliance on them. 34) Counsel for the respondents, however, refuted the said contention and placed reliance on the judgment of the Supreme Court in Commissioner of Central Excise, New Delhi versus Connaught Plaza Restaurant Private Limited, New Delhi (2012) 13 SCC 639. 35) He contended that milk and milk cream are totally different products and nobody, who intends to buy milk cream, would ask for milk, and so the common parlance test needs to be applied in such situations. 36) In Connaught Plaza Restaurant Private Limited, New Delhi (6 Supra), after referring to several of the earlier decisions rendered by it on the said aspect, the Supreme Court observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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