DESAI BROTHERS LTD. Vs. ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) THE assessee is a dealer in garlic and ginger paste. He has been submitting his returns and paying the admitted tax at four percent on the declared turnover. For the month of July, 2005 to July, 2006, the audit officer took up the assessments reopening under the Karnataka Value Added Tax Act, 2003 and passed orders levying the tax at 12.5 percent on the ground that garlic paste and ginger paste are not covered by entry No. 3 of the Third Schedule to the Karnataka Value Added Tax Act, 2003 as understood by the assessee. The products dealt with by the assessee are unscheduled goods and hence the applicable tax at 12.5 percent was levied. Aggrieved by the same, an appeal was filed wherein the appellate authority set aside the assessments and held that ginger and garlic paste fall under entry No. 3 of the Third Schedule to the Act and consequently liable to tax at the rate of four percent. The appellate authority observed with reference to entry Nos. 26 and 27 of the First Schedule to the Act and held that the commodity falls under entry No. 3 of the Third Schedule. The revisional authority initiated suo motu proceedings and issued notice calling upon the assessee to explain as to why the commodity should not be taxed at 12.5 percent in addition to penalty. Accordingly the revisional authority by the impugned order rejected the plea of the assessee and held that ginger and garlic paste is close to masala paste and is used in the food articles for better taste. In that context, when masala paste is classified as taxable under section 4(1)(b) it can be also understood that garlic and ginger is also liable to tax under section 4(1)(b). Under these circumstances, he held that the said goods do not fall under entry No. 3 of the Third Schedule and is consequently liable to tax at 12.5 percent in terms of section 4(1)(b). Aggrieved by the same, the present appeal is filed. The learned counsel appearing for the appellant contends that the impugned order passed by the revisional authority is bad in law and liable to be set aside. That the respondent failed to consider appropriately the article being dealt with by the assessee and the same has lead to miscarriage of justice and that garlic and ginger paste clearly fall under entry 3 of the Third Schedule. In support of his contention he relies on the judgment of the Supreme Court in the case of State of West Bengal v. Washi Ahmed reported in : [1977] 39 STC 378 (SC) to contend that the word vegetable must be considered as understood in common parlance and it must be given a popular sense meaning and therefore held that green ginger is included within the meaning of word "vegetable". Further reliance is placed in the case of State of Orissa v. Bhagawandas Ashok Kumar reported in : [1982] 51 STC 74 (Orissa) which held "that vegetables would no more include garlic is made clear by the Government notification. Having used a common -place term such as vegetable and then excluding certain named items form its fold is indicative of the fact that the State Government was of the view that the generic term 'vegetables' would have included garlic. Therefore, the exception was provided. The exception covered items like lemon and chilli which the Supreme Court has held to be vegetables. This court held ginger to be vegetable. The four items were, therefore, excepted from the term Vegetables'. This goes a long way to support the view that but for the exception, garlic would have been covered by the term 'vegetables'."

(2.) SMT . Sujatha, the learned Government Advocate, submits that there is no error committed by the lower authority that calls for interference. She contends that the revisional authority was justified in holding that ginger and garlic paste is close to masala paste. Ginger and garlic paste forms a major component in masala paste and hence, masala paste is the closest proximate entry to the garlic and ginger paste. Therefore, she contends that ginger and garlic paste being closest to masala paste and attract rate of 12.5 percent of the tax.

(3.) ENTRY No. 3 of the Third Schedule reads as follows: