Gujarat High Court Case Information System
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TAXAP/1808/2009 1/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1808 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.A.MEHTA Sd/-
HONOURABLE
MS.JUSTICE H.N.DEVANI
Sd/-
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
OCEANIC
FOOD PVT LTD - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance :
MR
TANVISH BHATT FOR M/S WADIA GHANDY & CO
for Appellant(s) : 1,
MS
MAITHILI MEHTA, AGP. for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 05/03/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
1. The
Appellant has challenged order dated 27.3.2005 made by the Gujarat
Value Added Tax Tribunal by proposing following questions stated to
be the substantial questions of law :
(i) Whether on the facts
and circumstances of the case, the Appellate Tribunal was right in
law in holding that dried onion and garlic were chargeable to tax
under Entry No. 100 of Schedule-IIA and not exempt from tax under
entry 40 of Schedule I of the Gujarat Sales Tax Act, 1969 ?
(ii) Whether on the facts and
circumstances of the case, the Appellate Tribunal had overreached its
powers by deciding on the undisputed aspect of taxability of dried
onion and garlic which was neither raised before it nor pleaded?
2. The
Appellant – Oceanic Food Private Limited Company is in the business
of manufacture and marketing of dried vegetables. For the period
under consideration viz. 1995-96, the Appellant had purchased onion
and garlic valued at Rs. 93,40,325/- from Sun Foods Private Limited,
Jamnagar by issuing Form No. 26 and paying sum of Rs.4,025/- for the
goods so purchased as tax considering the goods to be dehydrated. The
Appellant thereafter claimed on 20.7.1999 that the tax was wrongly
paid as the goods were exempt by virtue of Entry No. 40 in Schedule I
to the Gujarat Sales Tax Act, 1969 (the Act). The Assessing Officer
did not accept the contention and charged tax at an appropriate rate
on the basis that the goods were dried vegetables and taxable under
Entry No. 100(a) as per Schedule II-A of the Act. The Appellant did
not succeed either in the first Appeal or before the Tribunal.
3. Learned
Advocate for the Appellant invited attention to both Entry No.40 of
Schedule I of the Act and Entry No. 100 of Schedule II of the Act, to
submit that both onion and garlic would fall within Entry No. 40
being edible tubers and therefore the goods were exempt from tax.
That in any view of the matter, the issue involved interpretation of
relevant Entry and classification of the goods giving rise to
substantial questions of law as proposed, or any other question that
may be formulated by the High Court.
4. Entry
No.100(i) which is relevant reads as under :
100(i)
Foodstuff
and food provisions of all kinds(including dried fruits and dried
vegetables, raw, or semi-cooked, semiprocessed or ready to serve
foods, marmalade and honey)
[Twelve
Twelve III.6.
paise paise in the in the rupee rupee] Entry
No. 40 appearing in Schedule I reads as under :
40.
Fresh vegetables and edible xxx 1.8
tubers.
5. A
plain reading of Entry No. 100(i) appearing in Schedule IIA of the
Act indicates that all dried vegetables, whether raw or semi-cooked,
or semiprocessed, etc. would fall within the description of foodstuff
and food provisions of all kinds. As against that Entry No. 40 of
Schedule I of the Act refers to fresh vegetables and edible tubers.
It is not possible to treat cut and dried onion and garlic as either
fresh vegetables or edible tubers, the term tuber having
a specific connotation even in common parlance. Concise Oxford
Dictionary defines ‘tuber to mean the
short thick rounded part of a stem or rhizome, usu. found
underground and covered with modified buds,e.g. in a potato .
Admittedly the goods purchased are cut and dried onion and garlic and
would thus fall within the meaning of the term dried vegetables. They
would be covered by Entry No. 100(i) of Schedule IIA of the Act even
if they are cut and dried in raw condition.
6. In
the circumstances, it is not possible to accept the submissions made
on behalf of the Appellant. In absence of any error in the approach
adopted by the Tribunal and the subordinate authorities, no
substantial question of law, as proposed or otherwise, arises out of
impugned order of Tribunal.
7. The
Appeal is accordingly dismissed.
Sd/-
Sd/-
(D.A. Mehta, J.) (H.N. Devani, J.)
M.M.BHATT
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