M/S. Pioma Industries Etc Etc vs State Of Kerala

2. Challenge in this appeal is to the judgment of a Division

Bench of the Kerala High Court dismissing two revision

petitions filed by the appellants i.e. M/s. Pioma

Industries, and M/s. Rasna Pvt. Ltd. The assessment

years involved are 1997-98 and 1999-2000. The dispute

lies within a very narrow compass.

3. The question is whether "Rasna" is taxable as a

`beverage' or `non-alcoholic drink'. For the two assessment

years the relevant entries were Entry 56 and Entry 87

respectively for the year 1997-98 and for the year 1999-2000

Entry 124A, 141 and 97 respectively. The assessing officer,

the first Appellate Authority, the Tribunal and the High Court

held that "Rasna" is to be taxed as `non- Alcoholic drink'.

4. According to the learned counsel for the appellants,

`Rasna' is a powder which is nothing but a soft drink

concentrate and cannot be taken to be as `non-alcoholic

drink'. It is nothing but a fruit in a powder form and a

vegetative food preparation. It is pointed out that the

2 legislature in its wisdom has taken out some of the items

which were earlier in Entry 87 and have grouped them

together under different Entries.

5. Learned counsel for the respondent-State on the other

hand submitted that by no stretch of imagination `Rasna' has

been treated as `food or vegetative' and has therefore been

rightly assessed as `non alcoholic drink'.

6. Entries for the two relevant assessment years read as

follows:

In the year 1997-98

Entry No. Details of goods Point of levy Rate of tax

56. Food including vegetative or At the point 12.5% animal preparations sold in of first sale in airtight containers and food the State by a colours, essences of all kinds dealer who is and powders or tablets used liable to tax for making food preparations under Section or beverages 5 3

87. Non-alcoholic drinks, Do 20% squashes, sauces Aerated waters, mineral water, beverages Horlicks, Boost, Bournvita, Complan, Glucose-

D, Glucovita and similar items whether bottled or canned or packed Explanation : Powders, tablets and concentrates used for the preparation of non alcoholic drinks, shall whether or not they are bottled or canned be liable to tax under this entry.

During 1998-99

56. Food including vegetative or At the point of 12.5% animal preparations sold in first sale in the airtight containers and food State by a colours, essences of all kinds dealer who is and powders or tablets used liable to tax for making food preparations. under Section 5

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87. Non-alcoholic drinks, Do 20% squashes, sauces Aerated waters, mineral water, beverages Horlicks, Boost, Bournvita, Complan, Glucose-D, Glucovita and similar items whether bottled or canned or packed Explanation : Powders, tablets and concentrates used for the preparation of non alcoholic drinks, shall whether or not they are bottled or canned be liable to tax under this entry.

During 1999-2000 till 31.12.1999

87. Non alcoholic drinks whether Do 25% bottled or canned or packed Explanation: Powders, tablets granules and concentrates used for the preparation of non-alcoholic drinks, shall whether or not they are bottled or canned be liable to tax under this entry.

5 124A Squashes, sauces soda, Do 20% mineral water Horlicks, Boost Bournvita, Complan, Glucose-D, Glucovita and similar items whether or not bottled canned or packed Explanation: powders, tablets, granules and concentrates used for the preparation of beverages shall, whether or not they are bottled or canned, be liable to tax under this entry.

From 1-1-2000

97. Non alcoholic drinks whether Do 25% or not bottled or canned or packed Explanation _ Powders, tablets, granules and concentrates used for the preparation of non-alcoholic drinks, shall whether or not they are bottled or canned be liable to tax under this entry.

6 141 Squashes, sauces, fruit juice, Do 20% fruit pulp, soda, mineral water, Horlicks, Boost,

Bournvita Complan, Glucose- D, Glucovita and similar items whether or not bottled canned or packed.

Explanation-Powders, tablets Granules and concentrates used for the preparation of beverages shall, whether or not they are bottled or canned, be liable to tax under this entry.

7. It appears that assessee had taken the stand that the

article in question was vegetative food preparation and in the

alternative it was a beverage.

8. It was also highlighting the fact that in 1999-2000 the

Entry 87 as it stood in the year 1997-98 was split into two

parts i.e. Entries 87 and 124A. The explanation to the Entries

87 and 124A has also relevance. Undisputedly, Entries 87

and 97 relate to non-alcoholic drinks. It appears that the

stand taken by the appellants about the article being

"beverage" has not been specifically considered by the

Assessing Authority, the First appellate Authority, the

7 Tribunal and the High Court. Whether a particular article can

be called as a "beverage" has to be factually decided. That

analysis has not been done. Similarly, the effect of the

introduction of the Entries 124A and 141 with the Assessment

year 1999-2000 has not been considered. Therefore, the

effect of the change from 1.1.2000 has also not been

considered and has not been analysed. In the circumstances,

we remit the matter to the Tribunal to examine the following:

1. Whether `Rasna' can be treated as beverage for

the assessment year 1997-98.

2. To examine the effect of the Entries 124A and

141 vis-a-vis Entry 97 for the Assessment year

1999-2000.

9. The appeal is allowed to the aforesaid extent.

.............................. ...J. (DR. ARIJIT PASAYAT)

8 .................................J. (P. SATHASIVAM)

New Delhi:

July 25, 2008

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