PARLE AGRO PVT. LTD. Vs. COMMISSIONER COMMERCIAL TAXES

JUDGEMENT

(1.) This appeal under Sec. 62(1) of the Kerala Value Added Tax Act (hereinafter referred to as 'the Act') is directed against Annexure 4 order of the authority issued under Sec. 94 of the Act. The appellant who is a manufacturer of the product "Appy Fizz" had preferred Annexure 2 application for clarification under Sec. 94 of the Act. The clarification sought was whether the product, which had been classified as a 'Fruit Juice Based Drink', is liable to be included under Entry No. 71(5) as similar other products not mentioned under any other entry in the list or any other schedules and would therefore be chargeable to VAT @ 14.5%. Clarification was also sought whether the product classified under Clause (d) of Sub -section (1) of Sec. 6 of the Act is mutually exclusive of the products classified under Clause (a) of Sub -section (1) of Sec. 6.

(2.) The main contention urged by the appellant before the authority was to the effect that the product had been classified as a 'Fruit Juice Based Drink' under the Central Excise Tariff Act as well as under the Fruit Processing Order. The appellant had made available several technical opinions and certificates issued by various authorities to state that the drink was not 'carbonated water' and was a 'Fruit Juice Based Drink' containing fruit juice to an extent of more than 10% and that it had been assessed as a 'Fruit Juice Based Drink' till the Finance Act of 2007 amended Sec. 6(1)(a) of the Act by specifying that aerated branded soft drinks excluding soda would be liable to tax @ 20% at all points of sale within the State. The list of goods taxable at the rate of 12.5% notified by SRO 82/2006 was also amended by SRO 119 of 2008 and the entry 'Fruit Juice Based Drink' was deleted and all the H.S.N codes were removed.

(3.) The authority considered the contentions raised and held that the product is aerated branded soft drink coming specifically within the ambit of the Entry contained in Sec. 6(1)(a) of the Act as amended and therefore would not fall within the residuary entry in Entry 71(5) of the notified list. It was clarified that the products classified under Clause (d) of Sub -section (1) of Sec. 6 are mutually exclusive of the products classified under Clause (a) of Subsection (1) of Sec. 6. Aggrieved thereby, the assessee has come in appeal.