9911796707
TMI Blog2025 (3) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the nature of the beverage, particularly by the presence of the fruit juice to an extent that it attributes the essential character to the beverage, not merely as a flavouring agent. It is the dominant nature of the product which determines the classification. From these Technical Literatures, what is seen is that a substance or an ingredient of a food item can be called its base it's when such substance or ingredient forms the main or fundamental ingredient and imparts the essential attribute to the food item. The most significant feature of a food beverage is not it's food content but the function for which it is designed and marketed. The fruit is often a dominant ingredient providing its overall character to the subject product which cannot be achieved in any other way. This view is also found in the US Customs Ruling No. N122815 in the matter of Ms. Michele Peplinski Parker's Organic Fruit Juice. The said authority had classified the beverages by the presence of the fruit juice to the extent it attributes the essential character to the beverage. In CCE, Bhopal Vs. Parle Agro Pvt. Ltd. [2008 (3) TMI 67 - CESTAT NEW DELHI], the classification sought to be made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 namely fruit pulp or fruit juice based drinks as has been classified by the petitioner - The only ground on which the Revenue has classified the subject product under sub-heading 2202 10 is that it contains carbonated water. However, a quick reference to the Tariff schedule makes it clear that Sub-heading 2202 10 is primarily 'WATER' and it also includes mineral waters/ aerated waters /water containing added sugar or sweetening matter or flavour whereas sub-heading 2202 99 includes 'OTHERS' which are further described under the said sub- heading. The Tariff heading 2202 99 20 is seen to be for fruit pulp or fruit juice based drinks. The sole basis for rejecting the assessee's classification under Sub-head 2202 99 is that these subject products contained carbonated water. However, such conclusions by the Revenue that merely because it contains carbonated water, the subject products are to be treated under classification 'water' or 'aerated water' is completely fallacious - Even if the classification of the subject items are to be based on the Doctrine of common perlance then also the classifications sought to be made by the Revenue cannot be sustained. These subject products ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement or suppression of facts and contravention of any of the provisions of the Act or the Rules with the intent to evade to payment of tax - HELD THAT:- Under Section 74 Explanation 2, the term "suppression" has been explained as non declaration of facts or information in the returns. In this context, it is necessary to examine whether there was any suppression or non-declaration of materials by the assessee while payment of taxes by classifying the subject items under Tariff Head 2202 99 20. In the case of CCE V. Chemphar Drugs & Liniments, [1989 (2) TMI 116 - SUPREME COURT], it has been observed that the term 'willful' and 'suppression' signifies conscious withholding of information with mala fide Intention and not an unintentional failure due to inadvertence. Thus, in order to invoke the extended period of limitation, it is necessary to prove an act or omission on the part of the petitioner equivalent to collusion or wilful misrepresentation or suppression of facts. Again in Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise, Meerut, [2005 (9) TMI 331 - SUPREME COURT], the Apex Court held that suppression of facts" can have only one meaning that the corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14% and Notification 1/2021-Compensation Cess (Rate) dated 30.09.2021 whereby in the Schedule of the Goods and Services Tax (Compensation to States) Act, 2017 a new entry namely 4B was inserted levying 12% Cess on Carbonated Beverages of Fruit Drink or Carbonated Beverages with Fruit Juice and the same was made effective from 01.10.2021. The tax @ 14% and Cess @ 12% cannot be imposed on the said items for the periods prior to 01.10.2021. These Notification have been made effective only from the date it is notified. The periods involved in the present writ petitions are prior to the issuance of the said Notifications re-classifying the items. These Notifications therefore can only have effect from the date it is made effective and prospectively. There is no justification by the Revenue to make these notifications applicable retrospectively. Conclusion - i) The products manufactured by the petitioner are correctly classified under Tariff Item 2202 99 20 as "fruit pulp or fruit juice-based drinks." ii) Invocation of Section 74 of the CGST Act was deemed inappropriate due to the absence of evidence of fraud or willful suppression. iii) Penalties under Section 122 of the Assam GST Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditives) Regulation, 2011. According to the petitioner, these carbonated fruit drinks qualify as fruit beverages or fruit drinks. It is the case of the petitioner that the products manufactured by the petitioner are regularly tested at the State Public Health Laboratory, Government of Assam where sample products are sent for testing. From the report of analysis of food sample, it is clear that goods supplied by the petitioner comprises of fruit juice content more than 10% solids, sugar (sucrose) acidity regulators and synthetic food colors and it confirms to the specifications stipulated in Regulation 2.3.30 of FSSAI for carbonated beverage with fruit juice. That apart, all particulars including the details of the fruit concentrate are described on the label of the respective products. 5. On the basis of the classification adopted by the petitioner, it filed the GST returns regularly upon payment of appropriate taxes at the rate of 12%. The classifications of the products were duly described in the invoices raised and the returns filed by the petitioner. 6. In the month of September, 2021, the department initiated an investigation in respect of the classification adopted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order that since the products manufactured and sold by the petitioner contains carbonated water along with added sugar or sweetening matter or flavor, the goods are to be covered under HSN 2202 10 90 and are liable to be taxed at 28% GST along with cess at the rate of 12%. The department concluded that the petitioner had misclassified the product with the intent to minimize tax and which consequently led to short payment of tax and thereby had committed offense under section 122 of the Assam GST Act, 2017. The department therefore, had proceeded to adjudicate the issue under Section 74 of the Assam GST Act and a further interest under Section 50(1) of the Assam GST Act is levied. 8. Based on the conclusions arrived at by the department, the show cause notice dated 17.02.2022 under section 74 was issued, whereby the petitioner was directed to show cause along with supporting documents as evidence in support of its claim. The petitioner was asked to show cause as to why the petitioner should not be liable to pay interest and penalty in accordance with the provisions of the Act. It was also mentioned in the show notice that if the petitioner makes payment of tax stated in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levying 12% cess on carbonated beverages of fruit drinks or carbonated beverages with fruit juice and the same was made effective from 01.10.2021. It was submitted that in view of these notifications the show cause issued proposing to levy GST and cess on the said items at the rate of 14% GST and 10% cess prior to 01.10.2021 is illegal and the proceedings are liable to be dropped. The Joint Commissioner of Taxes by order dated 14.07.2022, however rejected the submissions of the petitioner and imposed tax interest and penalty classifying the item to be under HNS 2202 10 90 under the Custom Tariff Act. As it was held that water with added carbon-dioxide (carbonated water) containing added sugar or rather sweetening matter or flavored are separately classified under the HNS Code 2202 10. Being aggrieved the present writ petition has been filed. 10. It is submitted that the learned Senior Counsel submits that the products in question manufactured by the petitioner are "fruit juice based drink" classifiable under tariff item 2202 99 90 of Schedule II of the CGST, IGST rate notification. 11. The Tariff Item 2202 contains two parts, one is 2202 10 which is meant for waters including min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the products in question are 'fruit juice-based drink', classifiable under the Tariff Item No. 2202 99 20. 12. The learned Senior Counsel refers to meanings ascribed in dictionaries and other authorities in support of the contentions raised. In support of the above interpretation, reliance is also placed upon D. Hicks (ed.), Production and Packaging of Non-carbonated Fruit Juices and Fruit Beverages, 1990, Van Nostrand Reinhold, New York, wherein it is stated that the most significant feature of a fruit beverage is not its fruit content but the function for which it is designed and marketed. The fruit is often a dominant ingredient providing its overall character to the drink which cannot be achieved in any other way. 13. In support of the above contention, the Petitioner also relies upon the US Customs Ruling No. N122815 in the matter of Ms. Michele Peplinski Parker's Organic Fruit Juice, which deals with the issue regarding the classification of certain beverages containing concentrates of fruit juices as well as other ingredients. The ruling entailed classification of four such products, which could be summarised in the following table : Sl. Product Name Ingr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheme of classification under Chapter Heading No. 2202 of the Customs Tariff Act, 1975, which provides a separate entry for classification of fruit juice-based drinks. 16. Further, it is submitted that upon a closer examination of the Chapter Heading No. 2202, it can be seen that Tariff Item 2202 99 20 covers 'Fruit pulp or fruit juice based drinks' within its ambit whereas, Tariff Item 2202 99 30 covers 'Beverages containing milk'. Therefore, it is evident that the intention of the Legislature is to include those beverages under Tariff Item 2202 99 20, wherein the fruit imparts the essential character of the beverage. Unlike, Tariff Item 2202 99 30 which used the word 'containing' instead of 'based, which would mean that beverages with any quantity of milk would be covered under Tariff Item No. 2202 99 30. 17. The learned Senior Counsel for the petitioner further submits that the Tariff Item 2202 90 20 under the Erstwhile Central Excise Tariff Act, 1985 is pari materia to the tariff scheme under the Customs Tariff Act, 1975. In support of his contentions he has placed reliance on the following decisions 1. Commissioner of C.Ex., Bhopal v. Parle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order ignoring the findings rendered by Tribunal. There is no dispute that the adjudicatory authority in the present proceedings is subordinate to the Tribunal and therefore an order of the Tribunal is binding on the subordinate adjudicatory authority like the present respondents and therefore the respondent adjudicatory authority was duty bound to accept the findings of the Tribunal and could not have rendered the impugned order contrary to the findings arrived at by the Tribunal. He places reliance on the judgment of the Tribunal rendered in CCE, Bhopal vs Parle Agro Pvt. Ltd. reported in 2008 (226) ELT 194 (TRI). Referring to the said matter, it is submitted that the issue involved therein was regarding classification of the product APPY FIZZ, in that matter the Revenue wanted to classify it under Tariff Item 2202 10 10 because it was aerated. The Revenue had classified the item under Tariff Head 2202 90 20 as it is a juice based drink because the product contained 23% apple juice. The assessee relied upon the Prevention of Food Adulteration Rules, 1955 to submit that fruit beverage or fruit drink must contain soluble solids not less than 10% whereas their product contains 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same authority. He submits that the Revenue Authorities are bound by the orders and decisions of the appellate authorities, including that of the Tribunal. In support of his contentions, he has relied on the following judgments: Kamalakshi Finance Corporation Limited reported in 1991 (55) ELT 433 (SC), Viacom18 Media Pvt. Ltd. V. State of Maharashtra reported in 2019 (22) GSTL 338 (Bom), Industrial Mineral Company vs. Commissioner of Customs Tuticorin reported in 2018 (18) GSTL 396 (Mad). 19. Relying on these judgments, the learned Senior Counsel submits that the impugned show cause notice and the order passed by the respondent No.3 is completely contrary to the judicial pronouncements of the learned Tribunal as well as of the Apex Court and the other High Courts of the country. He therefore, submits that the impugned order passed by the respondent No.3 is ex-facie, illegal, arbitrary and against the mandate of law and on this count alone these proceedings initiated by the respondent No.3 should be dropped and the impugned order dated 14.07.2022 being absolutely illegal and without jurisdiction and not tenable in law is liable to be set aside and quashed. 21. The third limb of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, including aerated waters which are either sweetened or flavored or both. It is therefore, submitted that flavored water based beverage is covered by Sub-Heading 2202 10. It is submitted that flavor means odour and taste of a food item. In support of his contentions he makes a reference to the various authorities which define flavor. In Douglas M. Considine (ED), Foods and Food Production Encyclopedia, Van Nostrand Rainhold Company where it is explained that the "flavor of a food substance is the combined serisation of taste and odour as perceived by the eater/drinker of that substance". 22. Reference is also made to the Random House Compact Unabridged Dictionary, 1996, Random House, New York defines flavor as under: "1. Taste, esp. the distinctive taste of something as it is experienced in the mounth." According to The Shorter Oxford English Dictionary, 1973, Clarendon Press, Oxford 'flavour' is "1. A smell or odour. In mod, use: A trace of a particular odour." 23. Relying on these authorities, the learned Senior Counsel for the petitioner submits that flavor is a trace (extremely small amount of a component) of a particular odour or taste in a food substance. Thus, fla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anatory notes to HSN should not be the basis for interpretation of the said entry of the Customs Tariff Act. The said entry specifically inserted by the Indian legislature in Customs Tariff Act, 1975 has to be given a meaning and therefore, if all the products containing lime/lemon/ apple juice etc., whether as flavour or not, are classified as 'Lemonade'/ 'Carbonated water', then the 'fruit juice-based drinks' entry would become redundant. Therefore, only the water with flavour or essence of lemon/apple/ other fruits would be classified under the Tariff Sub - Heading 2202 10, whereas the beverages/ drinks where the essential character is given by the lemon juice/ apple juice/ other fruit juices (in terms of the fruit juice content as per the FSSAI Regulations) would be classifiable under the tariff Item 2202 99 20. 28. In the light of the above it is submitted that the impugned order dated 14.07.2022 passed by the learned Joint Commissioner of Taxes, suffers from misinterpretation of relevant tariff entries in place. Accordingly, the proposal to demand GST by classifying them under Tariff sub- heading 2202 10 90 is misplaced and liable to be dropped comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following requirements to make the said product fall under carbonated fruit beverages or fruit drinks: i. Total soluble solids (m/m): not less than 10.0 percent ii. Fruit content (m/m) a. Lime or Lemon juice : not less than 5.0 percent b. Other Fruits: Not less than 10.0 percent In case the quantity of fruit juice is below 10.0 per cent. But not less than 5.0 per Cent. (2.5 per cent. In case of lime or lemon), the product shall be called 'carbonated Beverages with fruit juice' and in such cases the requirement of TSS (Total Soluble Solids) shall, not apply and the quantity of fruit juice shall be declared on the label. 34. It is submitted that as per the laboratory reports It is an undisputed fact that the products in question, meet the criteria as stipulated in FSSAI i.e., regarding the percentage of fruit juice content. The apple juice/ orange juice concentrate content is actually more than the prescribed limit of 10% in all cases except in case of XSS Cola wherein the same is 5%. Further, the beverages based on lime/ lemon also have the juice content in excess of 5% in all cases. It is pertinent to note that this fact has already been declared on the labe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... headings providing a more general description. The CGST/IGST Rate Notification, as amended, also specify that for interpretation of correct classification of a commodity under the said Notification the rules of Interpretation of Customs Tariff Act, 1975 will be applicable. 40. It is submitted that Rule 3(a) categorically provides that a heading that is most specific is preferred over a heading that provides more general description. The Rules provide that any mixture is to be classified based on the material that gives it their essential character. Therefore, when there is specific Tariff Entry No. 2202 99 20 for 'fruit pulp and fruit juice-based drinks', there is no need to place reliance on the residuary entry for classification of a product if such entry is self-sufficient to classify a particular product. 41. Reliance is placed on the case of Hindustan Poles Corporation v. CCE, Calcutta, 2006 (196) E.L.T. 400 (SC) wherein it was held that the residuary entry is meant only for those categories of goods, which falls outside the ambit of specified entries. Further, the learned Tribunal of Chennai, in the case of CC, Chennai v. Associated Cement Companies Ltd., 2001 (133) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlance test, the subject products are classifiable under tariff item 2202 99 20. Referring to the 4th Paragraph in the Show Cause notice, the learned Senior counsel submits that the respondent No. 3 has admitted the fact that under common parlance test, the subject products are being marketed and sold as Carbonated fruit Beverage, Fruit Based Carbonated Beverage. However, merely because the ingredients provided in product's labels also provides for Carbonated water as an ingredient, it has been alleged that the products have been mis-classified as fruit juice based drink instead of as carbonated flavoured. It is submitted that this view of the respondent authority stems for non-appreciation of factual and transactional matrix are purchased consumers treating the same as a fruit juice based drink, unlike the other aerated beverages marketed under the various brand names, which are commonly understood by the consumers as 'soft drinks' or flavoured aerated water. It is a settled principle of law that the words used in the statute, imposing taxes or granting exemption should be understood in the same way as they are understood in 'ordinary parlance' in the area in which the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, which is adequately referred to, on the product label. 51. Therefore, though the Ld. Joint Commissioner has himself admitted that applying common parlance test, the goods are marketed and sold as Carbonated Fruit Beverages, Fruit Based Carbonated Beverage, which are treated as fruit drinks under Regulation 2.3.30 of the FSSAI regulations and have been held as 'fruit juice based drinks as per the judgments of Parle Agro (SC) and Brindavan Beverages (Tri-LB), as referred above. However, merely due to the presence of carbonated water in the ingredients, the Ld. Joint Commissioner has assumed that the product is the consumers buy the subject products for carbonated water and thus, the products have been mis- classified by the petitioner. It is submitted that the allegations of the Ld. Joint Commissioner are factually erroneous and entirely based on vague presumptions. As mentioned earlier, the subject products are instead marketed and sold by petitioner and purchased by customers as "fruit juice- based drinks". Even applying the common parlance test, the subject products merit classification as "Fruit pulp or fruit juice based drinks" under Tariff Item No. 2202 99 20. 52. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. The impugned Show Cause notice has proposed differential GST, Cess, interest on both GST and Cess, penalty under Section 74 of the Assam GST Act by merely alleging that the offence falls under Section 122 of the Assam GST Act. 56. It is submitted that the provisions of Section 74 of the CGST Act can be invoked only for recovery of tax not paid by reasons of fraud or collusion or willful mis- statement or suppression of facts or contravention of any of the provisions of the Act or Rules with intent to evade payment of tax. Further, as per Explanation 2 of Section 74 of AGST Act/CGST Act, the term 'suppression has been explained as non-declaration of facts or information in returns. Thus, the provisions of Section 74 are applicable only if any of the ingredients specified above exist. 57. Referring to the Judgment of the Apex Court in CCE Vs. Chemphar Drugs & Liniments, reported in 1989 (40) ELT 276 (SC) and Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise, Meerut, reported in 2005 (188) ELT 149 (SC) , it is submitted that the term "wilful" and "suppression" signifies conscious withholding of information with malafide intention and not an unintenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferring to the provisions of Section 122, it is submitted that the said provision provides for the imposition of penalty equivalent to tax due from the assessee or ten thousand rupees, whichever is higher. Thus, for the purpose of imposing penalty under Section 122(2)(b), there should be an intention to evade payment of tax, or there should be suppression or concealment or wilful mis-statement of facts. 64. It is therefore submitted that the ingredients for imposition of penalty under Section 122(2)(b) are identical to the ingredients for invocation of the provisions of Section 74 of the CGST Act. 65. The petitioner has conclusively demonstrated in the foregoing paragraphs that there has been no suppression of facts or willful mis-statement as alleged by the Department and thus, the provisions of Section 74 are not invokable in the instant case and in the absence of the said ingredients, no penalty can be imposed upon it under Section 122(2)(b) of the CGST Act. 66. It is further submitted that the penal provisions are only a tool to safeguard against contravention of the rules. It is submitted that the petitioner has always been and are still under the bona fide belief that frui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st under Section 122 of the CGST Act. 73. In support of the contention, reliance is placed on Goyal tobacco Co. Pvt. Ltd. Vs. CCE & ST, Jaipur-1 reported in 2015 (329) ELT 619 (Tri-Del). The pressing the Judgment into service, the learned Senior counsel submits that no interest is charged when demand is not sustainable and the interest is not payable by the petitioner. 74. The next limb of the argument is that the Notification No. 8/2021- Central Tax (Rate) dated 30.09.2021 and Notification No. 1/2021-Compenation Cess (Rate) dated 3009.2021 operates prospectively. 75. It is submitted that the Notification No. 8/2021- Central Tax (Rate) dated 30.09.2021 whereby a new entry was inserted as Serial No. 12A in Schedule - IV making Carbonated Beverages of Fruit Drink or Carbonated Beverages with Fruit Juice to be taxable @ 14% and Notification 1/2021-Compensation Cess (Rate) dated 30.09.2021 whereby in the Schedule of the Goods and Services Tax (Compensation to States) Act, 2017 a new entry namely 4B was inserted levying 12% Cess on Carbonated Beverages of Fruit Drink or Carbonated Beverages with Fruit Juice and the same was made effective from 01.10.2021. The tax @ 14% and Cess @ 12% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractically impossible. The Petitioner yet again submits that discrepancies in maintenance of books of accounts should not be used as a basis to make vague allegations such as negative stock. 80 In view of the above, the learned Senior counsel submits that the impugned show cause notices dated 17.02.2022 and orders dated 14.07.2022 for each of the financial years are illegal and without jurisdiction and thereby the same are liable to be set aside and quashed. 81. In W.P (C) No. 5342/2022, the respondents have filed their counter-affidavit. During the course of the hearing, the respondents submitted that the affidavit filed in W.P(C) No. 5342/2022 will cover the stand of the respondents in all the other writ petitions. Accordingly, this affidavit is considered to be the affidavit of the respondents in all the writ petitions including W.P(C) No. 5342/2022. Submission of the respondents 82. The respondents deny and dispute the submissions made by the counsel for the petitioner. It is submitted that the contentions raised by the petitioner in regard to the classification of the said product under Tariff Item 2022 99 20 of the Customs Tariff Act, 1975 is wholly misplaced and misconce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Drink) Clear Lemon, CFD Cola, CFD Lemon, CFD Orange. CFD Clear Lemon, Fontys CFD Clear Lomon, CFD Orange, CFD Thrist Orange, Fontys CFD Orange, etc., along with carbonated water and the petitioner did not use any fruit pulp or fruit juice for manufacturing of such finished product. 89. It is submitted that as per the contents of the products, the said products are sweetened (with sugar and/or sweetener) and flavoured (with Juice concentrate and added flavours natural and nature-identical flavouring substances). The same is also carbonated (aerated) as well as presented in PET bottles. 90. Based on the manufacturing flowchart, the method of preparation of various products are shown as follows: Processing RO Water- Preparation of Sugar Syrup Solution- Add mixure (Recipe containing the concentrate, flavours, additives and preservatives)- Thermal Process- Blending- Carbonisation/Carbonator- Hilden RFC- Filling- Capping- Inspection- Sleeve application- Shrinik Sleeve- Batch Coding- Dispatch. 91. The Revenue submitted that HSN for Sub-heading 2202 10, includes beverages which consists of ordinary drinking water, sweetened or not, flavoured with fruit juices or essences, or compound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislature while enacting a statute intended to import meaning from other statute for interpretation of provisions of the former statute, unless otherwise stated in the former statute. When there is no ambiguity in interpreting object of a statute it is not permissible to refer for the purpose of its construction, provisions of any other legislation. An effort to construe legislation on one subject with the help of other legislation on different subject is to defeat the purport of the former statute, unless both the statutes serve the common object. Only by incorporation or adoption of provisions of a statute for the construction of other, no aid is permissible. Rule of construction suggests that when two statutes remain different and distinct and each is to be judged with reference to their object, there is no scope for adoption of provisions of one statute by the other. The object of each enactment plays a dominant role in rule of construction. 97. Referring to Hotel & Restaurant Association Vs. Star India (P) ltd., reported in 2006 (11) TMI 540- Supreme Court of India, it is submitted that the Apex Court has held that the definition of a term in one statute cannot be used as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner has used fruit concentrate for manufacturing of Apple Drink, CFD (i.e. Carbonated Fruit Drink), Clear Lemon, CFD Cola, CFD Lemon, CFD Orange. CFD Clear Lemon, Fontys CFD Clear Lemon, CFD Orange, CFD Thrist Orange, Fontys CFD Orange, etc., along with carbonated water and the petitioner did not use any fruit pulp for manufacturing of such finished product. 105. The Revenue reiterates that the petitioner's finished products are manufactured from "fruit concentrates" and not from fruit pulp or fruit juice alongwith Carbonated Water, Sugar, Sweetener, added flavours (natural and nature-identical flavouring substances). Hence it cannot be classified under the entry 2202 99 20 i.e. "Fruit pulp or fruit juice-based drinks" and therefore disputes the contentions made by the petitioner. 106. The Judgments referred by the petitioner rendered by the CESTAT are disputed by the respondents on the ground that the CESTAT has jurisdiction to hear and decide appeals arising only from the Customs Act, 1962, the Central Excise and Salt Act, 1944 and the Gold (Control) Act, 1968 and therefore the Judgments of CESTAT relied upon by the writ petitioner are not applicable in the facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly provide that the products are "Fruit Based Carbonated Beverages" It is further submitted that the results of the State Laboratories giving "no negative results" cannot be the basis to question the classification made by the Revenue. 112. Revenue further disputes the contention of the petitioner that Section 74 of the CGST Act, 2017 has been wrongly invoked taking into light that there lies no case of non-payment of tax due to reasons of fraud or collusion or misstatement or suppression of facts or contravention of any of the provisions of the Act. It is submitted that the petitioners have been deliberately misclassifying the said product under HSN 2202 99 20. 113. It is contended by the Revenue that there lies a Tax Rate Difference in between the two HSN Codes and if the former was supposedly charged, the same came to be 40% (14% CGST + 14% SGST + 12% Cess). But the same products were classified under HSN 2202 99 20, the same product was charged under 12% (6% CGST +6% SGST). It is submitted on behalf of the Revenue that the petitioner knowingly without any iota of doubt had been involved in short paying of taxes and even involved in misclassifying the product resulting in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act, 1975 has been divided into two sub-headings, viz, sub-heading 2202 10 which covers "waters, including mineral waters 'and aerated waters, containing added sugar or other sweetening matter or flavoured", and sub-heading 2202 99 which covers "Other". 4) In the backdrop of the aforesaid factual and legal position the products manufactured 'and supplied by the taxpayer have been examined to ascertain whether, that it has been appropriately classified under Sub-heading 2202 10 or under Tariff Item 2202 99 20 or 2202 99 90. 5) It was observed that there is nothing in the Explanatory Notes of HSN pertaining to Heading 2202 to suggest that the product containing Carbon Dioxide as preservative only would not fall under Tariff Sub Heading 2202 10. On the contrary, Explanatory Notes of HSN for Sub Heading 2202 10 specifically mentions that the products of this Sub heading are often aerated with carbon dioxide gas. Therefore, the products are not excludible from Sub Heading 2202 10 on the ground that the product contains Carbon Dioxide as preservative only. 6) From the reasons above, is clear that water with added carbon dioxide (carbonated water) containing added sugar or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days time to submit its reply in the prescribed form. 119. Pursuant to the Show cause notice issued, reply was duly submitted and the reply was submitted on the following points: "1. The subject products are "Fruit Juice Based Drink" classifiable under Tariff Item 22029920 of Schedule-Il of CGST/IGST rate notification. 2. That Tariff heading 2202 10 would cover only those beverages which are prepared with flavours. 3. Food Safety and Standard (Food products and Food Additives) regulations, 2011 can be relied upon for the purpose of determining the correct classification of the subject products. 4. As per the general rules for interpretation, specific entry to prevail over general entry, Thus, the products in question are classifiable under tariff item 2202 99 20. HSN explanatory notes are not applicable to the present case. 5. As per the common parlance test, the subject products are classifiable under Tariff item 2202 99 20. 6. The burden is on the department to prove the classification of the subject items. 7. The allegations made by the Ld. Joint Commissioner are entirely based on presumption as the department has not adduced any cogent reasoning/evidence in supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that in the foregoing paragraphs, it has rightly provided for charging the taxpayer under Section 74 of the CGST Act and further by establishing the fact that there lies an intention to evade payment of tax, Section 122 has been rightly invoked and hence the same cannot be dropped off as has been prayed by the taxpayer. The prayer for granting a personal hearing was granted. Shri Rohit Agarwal, CA appeared and submitted the response of the taxpayer. However, no new submission was made in the hearing and the contention which were made in the written submission was reiterated." 122. As is revealed from the pleadings, the Petitioner is a Partnership Firm registered under the Indian Partnership Act, 1932 and is engaged in the business of manufacture and sale of carbonated fruit drinks and ready to Serve Fruit Drink. The Petitioner is engaged in the manufacture and sale of the following carbonated fruit drinks and ready to Serve Fruit Drink: Product 1 - XSS Orange Product 6 - Thirst Cola Product 2 - Thirst clear lemon Product 7 - Thirst Orange Product 3 - XSS Cola Product 8 - XSS Clear Lemon Product 4 - XSS Nimboo Paani Product 9 - Thirst Nimboo Paani Product 5 - Thirst Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, no test report in relation to the same was provided to the Petitioner. In pursuance to the aforesaid search and seizure conducted by the Tax Department officials, an order dated 17.02.2022 was issued to the Petitioner making allegation that the Department was of a view that the goods manufactured and supplied by the Petitioner contains carbonated water as an ingredient. It was identified that these products namely, CFD Orange/Thirst Orange, Apple Drink, CFD Clear Lemon, CFD Cola, CFD lemon and CFD Orange (hereinafter referred to as 'the subject products') were appropriately classifiable under tariff sub-heading 2202 10 90 and attracted GST @ 28% and compensation Cess @ 12%. 125. According to the Department from a perusal of label available on products/goods manufactured by the Petitioner, it transpired that Carbonated water was an essential ingredient in such manufactured goods and that from the Report of Analysis of Food Samples conducted by the State Public health Laboratory, Government of Assam, it appeared that carbonated water was used in Thirst Clear Lemon, Thirst Orange and Thirst Cola. 126. From the data extracted from the accounting system maintained by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff Heading No. 2202 demonstrates that tariff Sub-heading No. 2202 10 covers drinks which are predominantly made up of water, including mineral water and aerated water and are either sweetened or flavoured or both. Tariff Item No. 2202 99 covers other non-alcoholic beverages. 132. A perusal of the nomenclature of the Tariff Item No. 2202 99 10 to 2202 99 30 clearly shows that products classified thereunder would be known by the dominant ingredient present therein, like soya milk, fruit pulp, fruit juice, milk, etc. These products are seen to be classified by the presence of such ingredients, as in the case of the drinks falling under Tariff Item No. 2202 10. 133. The leads to the next question as to whether the expression "Fruit Pulp or Fruit Juice Based Drinks" falling under 2202 99 20 would essentially mean a drink based on fruit pulp or fruit juice with or without additional flavours and sweeteners and whether the fruit pulp/fruit juice gives the overall/essential character to the drink? 134. Since the answer to this question is not found in the Customs Tariff Act nor it is defined under the CGST or AGST Act, reference is therefore is necessary to be made to other authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 202.10.0040 (Carbonated Soft drinkothers) 138. From the discussions and the information in the tabular form extracted above, it is seen that a beverage could be a fruit juice - based drink (e.g. SI. 1 & 2 above) or it could be flavoured water (e.g. Sl No. 3 & 4 above). The classification is seen to be determined by the nature of the beverage, particularly by the presence of the fruit juice to an extent that it attributes the essential character to the beverage, not merely as a flavouring agent. It is the dominant nature of the product which determines the classification. 139. Reference is also made to Carbonated Soft Drinks: Formulation and Manufacture, edited by David P. Steen and Philip R. Ashurst, 2006 by Blackwell Publishing Ltd. wherein, it has been stated that: "Carbon dioxide is a colourless, non-toxic, inert gas that is virtually tasteless and is readily available at a reasonable cost. It is soluble in liquids, the degree of solubility increasing as the liquid temperature decreases, and can exist as a gas, liquid or a solid. When dissolved in water it forms carbonic acid. It is carbonic acid that produces the acidic and biting taste found in carbonated waters and soft d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in (226) ELT 194 (Tri), the classification sought to be made by the Revenue was rejected. This classification was sought to be made by the Revenue placing reliance on the HSN explanatory notes of chapter 22. The issue involved before the Tribunal in respect of classification of the product in question "Appy Fizz". The classification sought to be made by the Revenue under item head 2202 10 10 on the ground that it was aerated whereas the assessee had classified the item under Tariff Subheading 2202 90 20 as it is a juice based drink and also because the product contained 2203% apple juice. The assessee therein relied upon the Prevention of Food Adulteration Rules, 1955 to submit that fruit beverage or fruit drink must contain soluble solids not less than 10%, whereas their product contains 13.7% soluble solids. Rejecting the contention of the Department, the Hon'ble Tribunal held that the product was classifiable under tariff item 2202 90 20, observing as under: "6. The Revenue relied upon HSN Explanatory Notes of Chapter 22. We find that our tariff is not fully aligned with the HSN Explanatory Notes. In the HSN Explanatory Notices there are two sub-headings under Head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the State, and in the case of goods specified below at the rate of twenty per cent, at all points of sale of such goods within the State, namely- Sl. No. Description of goods HSN Code (1) (2) (3) 1. Areated drink (1) Mineral Water (2) Packaged drinking water (3) Branded soft drinks, excluding soda 2201.10.10 *** 2202.10 8415" 2. Air Conditioners 3. Building materials" The State by various notifications under Section 6(1)(d) has notified list of goods taxable at the rate of 12.5%. Entry 71 which is relevant for the present case as notified by the State as existing prior to amendment by SRO No. 119 of 2008 is as follows: "71. Non-alcoholic beverages and their powders, concentrates and tablets including (i) aerated water, soda water, mineral water, water sold in sealed containers or pouches, (ii) fruit juice, fruit concentrate, fruit squash, fruit syrup and fruit cordial [* * *] [ The words "(iii) soft drinks of all varieties" omitted by SRO No. 543/2007 dated 20-6-2007 published in Kerala Extraordinary No. 1167 dated 21- 6-2007.] , (v) other non-alcoholic beverages; not falling under any other entry in this List or in any of the Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Godrej Foods Ltd. v. CCE, Indore, 2000 (121) ELT 231 (Tri.), the issue before the Hon'ble Tribunal was regarding classification of the fruit drink marketed under the brand name "Lipton Tree Top" as a ready to serve beverage. The fruit drink was prepared in different fruit flavours Mango, Apple, Guava and Orange. The assessee had claimed its classification under sub-heading No. 2001.10 as fruit juice, whereas Revenue was of the view that the product merits classification under sub-heading No. 2202.90 as non- alcoholic beverages. The product contained 15.18% to 19.32% fruit pulp/concentrate, 13.44% to 14.7% sugar, and 70% water. The Hon'ble Tribunal held the product was not classifiable under heading 2001 as a preparation of food but was classifiable under sub-heading 2202 90 as other non-alcoholic beverage. 149. It is submitted that Squash and other ready-to- serve beverages made from fruit/ fruit juice have been held to be classifiable under tariff item 2202.90 of the old six- digit Tariff Schedule, which corresponds to present eight- digit tariff item 2202 99 20, in the following cases: 150. In the case of Hamdard (Wakf) Laboratories Vs. Collector of Central Excise, Mee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said illis of entry and classified imported goods under tariff sub-heading 2202 10 treating the same as carbonated flavoured waters. 154. Thereafter, on appeal before Commissioner (Appeals.), against aforesaid order, the Commissioner (Appeals), Kolkata vide Order-In-Appeal dated 08.06.2020, set aside the Order-in-Original dated 06.05.2020 and held that the said goods would be treated as fruit juice-based drinks' only and classifiable under tariff item 2202 99 20 and chargeable to GST @ 12%. 155. Being aggrieved with aforesaid order, the department challenged the same before the Hon'ble Tribunal vide Customs Appeal No. C/75195/2020. The Hon'ble Tribunal, Kolkata vide Final order No. 75031/2021 dated 25.01.2021. rejected the appeal filed by the department, relying on settled judicial pronouncements of the Hon'ble Apex Court in the case of Parle Agro (P) Ltd. v. Commissioner of Commercial Taxes, Trivandrum, 2017 (352) ELT 113 (SC) and the larger bench of Tribunal in the case of Brindavan Beverages Pvt. Ltd. v. Commr. of Cus., CX & ST 2019 (29) GSTL 418 (Tri- LB). Accordingly, the said goods were held to be classifiable under Tariff Item 2202 99 20. Relevant porti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Regulation 2.3.30 of FSSAI too, inter-alia, found that the product appy fizz met with the conditions in Clause 2 of this Regulation. Revenue's argument is that the appy fizz contained 10% of the apple juice whereas the present products contained only 5% fruit juice (2.5% in the case of lime). It is true that in view of this difference in the composition these goods do not fall under Clause 2 of FSSAI Regulation 2.3.30 but they do fall under Clause 3A. Identical view has been taken by the Larger Bench of the Tribunal in the case of Brindavan Beverages (supra). Revenue has relied upon the ruling of the Advance Ruling Authority in the case of IGST and a support to such a decision by the GST Council which are not binding precedents for this Bench. At any rate, the ruling of the Advance Ruling Authority is not even applicable to any assessee other than the one who sought clarification. Therefore, the learned Commissioner (Appeals) is correct in not relying upon such a decision. 28... 29. It was also argued by the Revenue that the Commissioner (Appeals) has erred in relying on the judgment of the Hon"ble Apex Court in the case of Parle Agro (supra) as it was in respect of Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese tests were conducted to ensure the food safety and standards required to be maintained under the relevant statute. The Food Safety and Standards Act and Regulations are essentially statutes which are enacted by the State to regulate food standards, production, distribution, consumption and are based on international legislations. The objectives of the Food Safety and Standards Act are as follows: (i) to consolidate the laws regulating the food; (ii) to establish food safety and standards authority of India for laying down science based standards for articles of food (iii) To regulate their manufacture, storage, distribution, sale and import; (iv) To ensure availability of safe and wholesome food for human consumption. 160. The Act apart from making stringent provisions to curb food adulteration, also ushers in new concepts such as putting in place food safety management systems and food safety audit to realise its ultimate goal of ensuring availability of safe and wholesome food for human consumption. {for reference Swami Achyutananda Teerth Vs Union of India 2016 (9) SCC 669}. 161. Under Section 92 read with Section 16 of the Food Safety and Standard Act, 2006, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-rule (b) of Rule 2 or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in the numerical order among those which equally merit consideration. 4. Goods which cannot be classified in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts it is seen to be more than 10%. This is not disputed by the Revenue. 167. It is also not disputed that the GST Statute does not have the Tariff heads and classification prescribed under the Act and the Rules. Therefore, the Customs Tariff Act has been adopted. Therefore, in order to arrive at a definitive conclusion as to whether the subject products manufactured by the petitioner and its constituents, in the absence of any specific description or heading provided under Chapter 22, the items will have to be classified under the heading or sub-heading to which these goods appear to be most akin to. From the laboratory test reports and the manufacturing flow charts placed before the Court, it is clear that it cannot be classified under 2202 10 rather it is more akin to 2202 99 20 namely fruit pulp or fruit juice based drinks as has been classified by the petitioner. To contradict this conclusion, which is based on Laboratory Test reports, the Revenue is required to place alternative materials to suggest that the classification made by the assessee is incorrect and the one made by the Revenue is the appropriate one. No such contrary material has been placed before the Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These subject products have been sold in the market as Fruit Based Drinks or Drinks containing Fruit Pulp or Fruit Concentrate. When a consumer seeks to purchase water, there is no possibility that these subject products can be sold and/or purchased by such a consumer who seeks to purchase water. These products cannot be identified as water by a consumer. 171. Under such circumstances, taking into consideration the Rules of interpretation as prescribed under the 1st schedule to the Central Excise Tariff, the subject products classification under Tariff Heading 2202 99 20 as have been done by the assessee will have to be accepted over the claim of the Revenue that it is classifiable under the heading 2202 10 90. The contention of the Revenue therefore cannot be upheld and the same is rejected. 172. In so far as the contention raised before this Court by the Revenue regarding the correctness of the placing reliance by the petitioner on the Food Safety and Standards (Food Products and Food Additive) Regulation, 2011. It is seen that the Central Excise Tariff Act does not specify any particular category of laboratory where such tests are to be conducted nor does it specifically debar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heads. Under such circumstances, this contentions of the Revenue fails and is therefore rejected. 174. There is also another reason why the submissions of the Revenue cannot be upheld. 175. Chapter 22 is for "beverages, spirits and vinegar". For the purposes of this proceedings, the tariff head 2202 is relevant. The said sub-head along with the items described is extracted below : Tariff Item Description of goods (1) (2) 2202 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not Including fruit or vegetable juices of Heading 2009 2202 10 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured: 2202 10 10 Aerated Waters 2202 10 20 Lemonade 2202 10 90 Other 2202 99 Other 2202 99 10 Soya milk drinks, whether or not sweetened or flavoured 2202 99 20 Fruit pulp or fruit juice based drinks 2202 99 30 Beverages containing milk 2202 99 90 other 176. A perusal of the chart reveals that Tariff Head 2202 is for Water including mineral waters and aerated waters, containing added sugar or other sweetening ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Item No. 18 as Nylon Yarn whereas the department entertained the view that it is classifiable under the residuary entry 68. The assessee produced certificates/ affidavits from experts in the field and also from the users of its products to the effect that Nylon Twine was treated as Nylon Yarn only in commercial parlance. The assessee also laid before the authorities the text of various technical literatures to substantiate the classification adopted by it. However, the department did not agree to the classification adopted by the assessee and confirmed the demand, which upon appeal by the assessee, was set aside by Hon'ble High Court of Bombay. The Hon'ble Apex Court upheld the order of the Hon'ble High Court observing as under: "15. In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. Mare assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner it will be necessary to refer to Section 74 of the CGST Act. The said section reads as under: "74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any willful- misstatement or suppression of facts.-(1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon under section 50 and a penalty equivalent to the tax specified in the notice. (2) The proper officer shall issue the notice under sub-section (1) at least six months prior to the time limit specified in sub- section (10) for issuance of order. (3) Where a notice has been issued for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years from the date of erroneous refund. (11) Where any person served with an order issued under sub-section (9) pays the tax along with interest payable thereon under section 50 and a penalty equivalent to fifty per cent. of such tax within thirty days of communication of the order, all proceedings in respect of the said notice shall be deemed to be concluded." 184. The penalty sought to be imposed by the Revenue on the petitioner under Section 74 of the CGST Act is by reason for recovery of tax not paid by the assessee by reasons of fraud or collusion or wilful mis- statement or suppression of facts and contravention of any of the provisions of the Act or the Rules with the intent to evade to payment of tax. 185. Under Section 74 Explanation 2, the term "suppression" has been explained as non declaration of facts or information in the returns. In this context, it is necessary to examine whether there was any suppression or non-declaration of materials by the assessee while payment of taxes by classifying the subject items under Tariff Head 2202 99 20. In order to decide, whether there was any wilful suppression or mis-statement by the petitioner, it is necessary to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue under Section 74. 190. The dispute in the present proceedings is with regard to the appropriate Tariff Head for the subject products. The elaborate discussions above would reveal that there is no specific or definitive description of the items manufactured and sold by the petitioner. As have been discussed above, the Revenue did not lay before this Court any contrary evidence to contradict the views of the petitioner that in respect of the Tariff Head. 191. Under such circumstances, where substantial discussion is required to arrive at a conclusion to determine the appropriate Tariff Head of the subject products, it cannot be said that filing of returns under the Tariff Head 2202 90 20 by the petitioner in respect of the subject products will amount to deliberate and wilful suppression or non-disclosure of facts and thereby attract the provisions of Section 74. Accordingly, it is held that invocation of powers by the Revenue under Section 74 was uncalled for and the same is therefore unwarranted. 192. In order to dwell upon the arguments made by the petitioner questioning the penalty imposed under Section 122 of the Assam GST Act and to decide on the correctness of such impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so be imposed merely because it is lawful to do so. 197. Further once the demand has been found to be non-sustainable, the question of levy of penalty does not arise. The Apex Court in HMM Ltd (Supra) held that the question of penalty would arise only if the Department is able to sustain the demand. Similarly, in the case of CCE, Aurangabad v. Balakrishna Industries, Civil Appeal No. 3389-3390 of 2001, Hon'ble Supreme Court held that penalty is not imposable when differential duty is not payable. Therefore, the proposal for imposition of penalty upon the petitioner is not sustainable in law. 198. For the reasons given in the foregoing paragraphs, if the proposed demand is unsustainable in law, no penalty is imposable on the petitioner. Under such circumstances, it is held that where the demand has been found to be unsustainable on the ground that there was no wilful and deliberate suppression or mis-statement or evasion or payment of tax, the question of imposition of penalty must also failed. Accordingly, the imposition of penalty by the Revenue is therefore interfered with and set aside. 199. Similarly, the imposition of interest under Section 50 is also not recoverable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... differential duty can be demanded only from that date. 202. The periods involved in the present writ petitions are prior to the issuance of the said Notifications re-classifying the items. These Notifications therefore can only have effect from the date it is made effective and prospectively. There is no justification by the Revenue to make these notifications applicable retrospectively. 203. The publication of the Notifications and insertions of new entry rather supports the case of the writ petitioners. If the subject items dealt with by the petitioners are classifiable under entry 2202 10 10 i.e. under the description "aerated waters" as sought to be classified by the Revenue, there would have been no necessity of inserting a separate item in the schedule and also by inserting by new entry of Cess under the Assam GST Act, 2017. In this context, the reference to the Judgment of Parle Agro (P) Ltd (Supra) is very relevant. 204. In this case before it, the Apex Court observed that fruit juice based drink were also to be covered by aerated branded soft drink, there was no occasion for the subordinate authorities to include the said products in Notification under Section 6(1)(d). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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