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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 ..... preferred by the assessee under Section 48(1) of the Himachal Pradesh Value Added Tax Act, 2005 (for short the "Act") challenging the order dt. 27.11.2013 passed by the Himachal Pradesh Tax Tribunal (for short the "Tribunal") in Revision Petition no. 1/2013, where the order dt. 27.11.2012 of the Additional Excise & Taxation Commissioner-cum-Revisional Authority (South Zone), Shimla, Himachal Pradesh passed under Section 46(1) of the said Act, was upheld. Background facts 2) The background facts are that the assessee is a registered dealer under the said statute and is engaged in trading of milk products, milk, edible oils etc. 3) One of the products, the assessee is dealing with is "milk cream". 4) The Assessing Authority of the Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which is mainly used for garnishing and in preparation of tea, coffee etc. It was also contended that the dealer had not charged any VAT on its sale; and that the milk cream is a tax free item in view of Entries 16 and 23 in Schedule-B of the Act. The assessee also pointed out that Entry 16 mentions only "Curd, Lassi, Butter Milk and separated Milk", while Entry 23 mentions "Fresh Milk and Pasteurized Milk" and as long as milk is available in its natural form and nothing has been done on it to make it commercially a different article, it would remain tax free under this entry. It was contended that this product is nothing but simply milk under Entry 23 of Schedule-B of the Act, as it is only low fat cream. It was further contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass a fresh order in view of his findings therein. The order of the HP Tax Tribunal 11) Challenging the same, the assessee 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, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entries 24, 28, 61 & 92 in the Himachal Pradesh Vat Act, which provided for levy @ 4% tax on Cottage Cheese, Desi Ghee, Khoya and Skimmed Milk Powder and UHT Milk, the Tribunal held that the intention of the legislature was to exempt only milk and not milk products; so milk cream ought not to enjoy benefit of tax exemption; and that was the same position in the other States as well. 19) However, partial relief was granted to the assessee by setting aside the order of the Revisional Authority dt. 27.11.2012 indicating that the Assessing Authority should levy tax @ 4% for the Assessment Years 2005-06 to 2008-09 from the assessee on the product in question and not @12.5%/13.75% as was held by respondent no. 1. The instant Revision 20) Chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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. 27) The Division Bench held that whenever the Commissioner receives any relevant information even though from the assessee, he can exercise his suo moto powers of revision if he thinks that the information is such as warranting his interference; if on receipt of information, he feels that he need not take any action in the matter, it is open to him not to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contention and the same is rejected. 32) The other contention raised by the counsel for the petitioner was that there being no entry in the Act dealing with milk cream, the Central Excise HSN Classification Entry no. 16 should be taken into account and in that entry, which relates to fresh milk and pasteurized milk, the product cream is also included and, therefore, it should be taken into account, and since milk is not taxable, milk cream also ought not to be taxed. 33) Counsel for the petitioner placed 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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