ANTHOOSONS AGENCIES Vs. COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) The question that is posed for consideration in this case is whether the commodity "Jam" would fall under entry 62 of the 1st Schedule which reads as "food including vegetative or animal preparations sold in airtight containers and food colours, essences of all kinds and powders or tables used for making food preparations" or under entry 141 of 1st Schedule which reads as "Squashes, sauces, fruit juices, fruit pulp, soda, mineral water, Horlicks, Boost, Bournvita, Complan, Glucose D, Glucovita and similar other items whether or not bottled, canned or packed".

(2.) Conflicting views have been expressed on the question whether "Jam" would fall under entry 62 of the 1st Schedule or entry 141 of the 1st Schedule which led to the assessee to file an application under Section 59A of the KGST Act before the Commissioner of Commercial Taxes and sought a clarification on the rate of tax on "Jam". Commissioner issued a clarificatory order dated 4.7.2005 holding that the commodity "Jam" is classifiable under entry 141 of the 1st Schedule of the KGST Act and taxable at 20% upto 31-3-2005. Sri. K.U. Viiayan, counsel appearing for the appellant submitted that the word "Jam" has never appeared in any of the Schedules appended to the KGST Act, 1963. Counsel submitted "Jam" has neither been defined nor explained by the Act. Counsel placed considerable reliance on the dictionary meaning of that expression and also the meaning given to that expression in Prevention of Food Adulteration Rules, 1955. Counsel submitted the commodity "Jam" is fit for direct consumption while fruit pulp is not directly consumed and therefore applying the above mentioned test, the clarification issued by the Commissioner is perverse. Reference was made to the judgment of the Apex Court in (1994) 93 STC 180 and a Full Bench decision of this court in Tatson Food Industries v. State of Kerala, 1999 (3) KLT 174 : (1999) 7 KTR 646. Counsel also submitted, even by applying the test of commercial identity, jam and fruit pulp are different commodities and by applying the common parlance test also, the clarification is perverse. Jam and pulp are understood as different commodities in common parlance and commercial circles.

(3.) Counsel appearing for the Revenue Sri. Georgekutty Mathew on the other hand, tried to support the view of the Commissioner. He also placed reliance on the decision of the apex court in State of Maharashtra v. Bradma of India Ltd. (2005) 140 STC 17 and submitted that a specific entry in the schedule to a taxing statute would override a general entry but, resort has to be had to the residuary heading only when a liberal construction of the specific heading cannot cover the goods in question. Counsel submitted jam is made from fruit pulp and since fruit pulp falls under Entry 141 jam also would fall in that category and therefore Commissioner has rightly issued the clarification.