SARVA SHRI SAGAR SONS Vs. COMMISSIONER

JUDGEMENT

(1.) THE present Commercial Tax Revision has been filed against the order of the Commercial Tax Tribunal, Uttarakhand, Dehradun dated 29.5.2010 whereby the appeal of the revisionist has been dismissed and the order of the Additional Commissioner, Commercial Tax, Dehradun dated 27.8.2009, has been upheld.

(2.) THE revisionist is a proprietor concern, namely, M/s Sarva Shri Sagar Sons which is registered under the Uttarakhand Value Added Tax Act as well as Central Sales Tax Act. THE revisionist is in the business of trading in a product known as "Whip Topping". According to the revisionist, "Whip Topping" is primarily a vegetable oil which is mixed with sugar and water and emulsified in semi-solid form which is then used as an icing in bakery products, such as, cakes and pastries. THE revisionist purchases this product known as "Whip Topping" from Delhi and consequently makes sale of this product in the territory of Uttarakhand. Prior to the imposition of the Uttarakhand Value Added Tax Act, the revisionist was paying 4 per cent tax on the sale of "Whip Topping". However, since the imposition of the Uttarakhand Value Added Tax Act (from hereinafter referred to as the "Act"), the revisionist was provisionally assessed for the first time in January, 2009, the Assessing Authority was of the view that the product "Whip Topping" shall be taxed at the rate of 12.5 per cent, as it is an "unclassified product".

(3.) HEARD learned counsel for the revisionist as well as the learned counsel for the State. In the considered opinion of this Court, the contentions of the revisionist are wholly misplaced. Although it is by now settled that in case an entry can be reasonably placed in a "classified category", then it should not be relegated to the orphanage clause of an unclassified category and should be taxed as per the classified category given in the Schedule of the taxing statute, but the reverse being equally true is that in case there cannot be a reasonable classification of a product or in other words, it cannot be reasonably placed anywhere as a classified item, then it must be placed in the unclassified category. In the present case, the product "Whip Topping" cannot be classified as a vegetable oil or any other item as contended by the revisionist, so as to put "Whip Topping" under the category of tax at the rate of 4 per cent. The learned counsel for the revisionist could not convince this Court that the product "whipping top" can be placed anywhere in the Schedule in order to be taxed at the rate of 4 per cent. Admittedly, "whipping top" is not an item mentioned exclusively as such in the Schedule. Therefore, it being an unclassified item has to be charged tax at the rate of 12.5 per cent. Moreover, fiscal matter has to be strictly interpreted, if the Legislature of the State in its wisdom has decided that the "Whip Topping" has to be treated as unclassified item, then it has to be treated as such. The Court cannot impose either its opinion or wisdom on this aspect.