Parth Prateem Sahu JUDGMENT
Ajay Kumar Tripathi, C.J.
1. The Appellants had approached the writ court by filing Writ Petition (T) No. 4893 of 2010. In the said writ application, the taxability of a widely known drink "Frooti" manufactured by the Appellant-Company and its inclusion under Entry 14 of Schedule II of the Chhattisgarh Entry Tax Act, 1976 (for short 'the Act, 1976') at the rate of 2% by the Assessing Authority came to be assailed before the learned Single Judge.
2. An argument was made that "Frooti" being a product of fruit will fall in the Residual Entry of Schedule-II of the Act, 1976 and therefore, liable to be taxed at the rate of 1% and not 2%. The learned Single Judge did examine such submission of the Appellants whether 'Frooti' being a fruit juice would be required to be considered under the Residuary Entry or can be read into Entry 14 of Schedule-II Part I of the Act, 1976.
3. Entry 14 reads as under:
"All kinds of non-alcoholic drinks and beverages, ice-cream, kulfi and ice candy ------- 2%.
4. The learned Single Judge, after having examined the above Entry 14 and keeping in mind the various settled propositions and principles of law by the highest Court of land, repelled the argument of the Petitioners that "Frooti" was a fruit drink, therefore, will not come within Entry 14 of Schedule-II of the Act, 1976 and therefore, has to be carried to the Residuary Entry.
5. The learned Single Judge has given the following reasons based on the different judicial precedents. He repelled the argument of the Petitioners, dismissed the writ application and held that "Frooti" can very well be read as an item under Entry 14 of Schedule II of the Act, 1976. The relevant paragraphs of the learned Single Judge has significance therefore, is reproduced as part of the order:
"6. At this stage, it would be appropriate to pause here and to notice the principles of law relating to interpretation of tariff entry. Justice G.P. Singh in his celebrated book "Principles of Statutory Interpretation" (14th Edition) at page 874 has held that the taxing entries have to be construed with clarity and precision so as to maintain this exclusivity.
7. In the matter of M/s. Bharat Forge and Press Industries (P) Ltd. v. Collector of Central Excise, Baroda, Gujarat MANU/SC/0110/1990 : (1990) 1 SCC 532, the Supreme Court has held in no uncertain terms that only such goods which cannot be brought under the various specific entries in the tariff schedule should be attempted to be brought under the residuary entry. In other words, unless the Department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort can be had to the residuary item.
8. Likewise, in the matter of Commissioner of Central Excise, Calcutta v. Sharma Chemical Works MANU/SC/0362/2003 : (2003) 5 SCC 60, the Supreme Court has held authoritatively that it is the primary and paramount responsibility of the State to first convincingly prove and establish that the item under no circumstances can be brought under any of the tariff items under the schedule of the Act. It has been further held that classification of goods and the onus of proof lies on the Revenue. Their Lordships of the Supreme Court succinctly held as under:-
"12. We have heard the parties and considered the submissions made by them. We have also read the opinion of the majority Bench and the minority opinion of the Technical Member. It is a settled law that the onus or burden to show that a pr........