RAJNIKANT Vs. STATE OF ASSAM

JUDGEMENT

(1.) This petition seeks quashing of order dated November 17, 2012, passed by the Commissioner of Taxes, Assam under section 105 of the Assam Value Added Tax Act, 2003 declaring that the item "Madhusudhan brand milk powder'' containing added sugar and fat was not "skimmed milk powder" and hence not covered by entry 60 of Part A of the Second Schedule to the Act, providing for lower rate of tax. The case of the petitioner is that it is engaged in sale of milk powder called "Madhusudhan brand milk powder" which is skimmed milk powder covered by entry No. 60 of Part A of the Second Schedule to the Act and thus taxable at lower rate, i.e., at five percent. In the common parlance the product is known as skimmed milk hut the assessing authority for assessment years 2007-08, 2008-09 and 2009-10 made provisional assessment by holding that the product was not skimmed milk powder. The stand of the Department is that the product was not "skimmed milk powder" as it was not of a low fat character. The petitioner sought a clarification under section 105 of the Act from the Commissioner of Taxes by submitting that since in the common parlance the product was known as skimmed milk powder, the Department could not take a different stand merely because the product did hot have low fat. According to the petitioner, the criteria of low fat could not be applied for declaring the' product to be not skimmed milk powder. The Commissioner did not accept this submission vide order dated September 4, 2010 (Rajnikant & Brothers v. State of Assam) which was challenged by way of W.P. (C) No. 5915 of 2010. The writ petition was disposed of on July 17, 2012 with the observation that the Commissioner may look info the plea of common parlance test. The Commissioner, after reconsideration, reiterated the earlier view holding as follows:

(2.) The learned counsel for the petitioner submitted that in absence of any specific definition under the taxing statute, label given by the petitioner "skimmed milk powder" had to be accepted by applying the common parlance test irrespective of the fat contained. Referring to the process of manufacture as mentioned in the writ petition, it is submitted that it contains maximum 10 percent fat and 20 percent sugar.

(3.) On due consideration, we are unable to accept the submission.