YAKULT DANONE INDIA PVT. LTD. Vs. AUTHORITY FOR CLARIFICATION & ADVANCE RULIN DEPARTMENT OF COMMERCIAL TAXES

JUDGEMENT

(1.) Appellant is the manufacturer of a product 'Yakult' which, according to the appellant, is akin to 'lassi' which is a milk product. Hence it is claimed that the appellant would be entitled to the benefit of Entry 19 of the First Schedule of the Karnataka Value Added Tax Act (KVAT Act for short). Appellant approached the 'Authority for Clarification & Advance Rulings' constituted under Section 60 of the KVAT Act seeking clarification as to the rate of tax which would be chargeable on the said product. By the impugned order dated 21.4.2012, the Authority has held that the product in question would be chargeable to tax under Section 4(1)(b)(iii) of the KVAT Act, at the rate of 14%. Challenging the said order of the Authority, this appeal has been filed.

(2.) We have heard Sri Shivadas, learned counsel for appellant as well as Sri K M Shivayogiswamy, learned Addl. Government Advocate appearing for the respondent and have perused the record. Although several grounds have been raised on the merits of the decision taken by the Authority by order dated 21.4.2012, but a preliminary ground has been raised with regard to the constitution of the Authority which has given its ruling. The Authority is constituted under Section 60 of the KVAT Act and the relevant sub-section (1) of Section 60 is reproduced below:

(3.) The said provision clearly mandates that the Authority has to be constituted of at least three Additional Commissioners meaning thereby, that the Authority could consists of more than three Additional Commissioners but not less than three members. The order dated 21.4.2012 which is said to have been passed by the Authority, is only by two members. It is thus contended by learned counsel for appellant that the constitution of the 'Authority for Clarification & Advance Rulings' was not in terms of Section 60(1) of the KVAT Act. It has, thus, been submitted that the order passed by the said Authority consisting of only two members, cannot be said to be an order of proper 'Authority for Clarification & Advance Rulings', and is liable to be set aside on this ground alone. Sri Shivayogiswamy, learned counsel for respondent has tried to justify the constitution of the Authority which was of only two Additional Commissioners, on the strength of Rule 165 (26-A) of the KVAT Rules, wherein it is provided that if one of the members of the Authority other than the Chairman, is unable to discharge his functions, owing to absence, illness or any other cause or in the event of occurrence of any vacancy in the office of members and the case cannot be adjourned for any reason, the Chairman and the remaining member may function as the Authority. It is thus contended, a two member Authority would also be properly constituted Authority under Rule 165 (26-A) of the KVAT Rules.