Gujarat High Court
Nestle India Limited vs Deputy Commissioner Of Commercial Tax & on 27 December, 2012
Author: Akil Kureshi
Bench: Akil Kureshi, Sonia Gokani
C/SCA/15842/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15842 of 2012
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NESTLE INDIA LIMITED....Petitioner(s)
Versus
DEPUTY COMMISSIONER OF COMMERCIAL TAX & 1....Respondent(s)
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Appearance:
Ld.Sr.advocate Mr.Saurabh Soparkar with Mr.Amar Bhatt,ld.advocate for the
Petitioner(s) No. 1
Ms.Shruti Pathak, ld. AGP for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 27/12/2012
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) Petitioner has challenged order dated 12.10.2012 passed by the Deputy Commissioner of Commercial Tax, Ahmedabad demanding value tax at the rate of 12.5% on petitioner's product called "Maggi Noodles ". Case of the petitioner is that such the product has been classified as "Sev" since many years and the issue is concluded up to the stage of Tribunal in favour of the assessee, many years later on, Assessing Officer has re-opened the issue and now held that product does not fall in any of the defined categories and is therefore to be treated as "Residuary items" and accordingly tax is being demanded. It is also the case of the petitioner that in the show cause notice, Assessing Officer had called upon the petitioner to show-cause as to why tax at the rate of 4% should not be collected and the final order therefore, travels beyond the show cause notice. The third limb of the arguments of the petitioner is that the Assessing Officer did not even discard the petitioner's contention that product is Page 1 of 3 C/SCA/15842/2012 ORDER "Sev" .In fact, he agreed that such interpretation is possible. That being the case, the product would be covered by the exemption notification. In any case, being treated as product sold in package and brand, the same would at worst invite the tax at the rate of 4% .
On the other hand the case of the respondent is that the impugned order is appealable and in view of the statutory remedy available, this petition should not be entertained. It is further the case of the respondent that assessment is correctly done . Product can never be classified as "Sev". It is rightly held to fall in the residuary category, and accordingly, tax is charged at 12.5% .
Several issues purely of legal consideration arises . He therefore would not prefer Appellate remedy. Petition is therefore admitted. Hence, Rule. Ms. Shruti Pathak waives service of Rule on behalf of respondent-State. With respect to interim relief, in view of the fact that Assessing Officer has not rejected the petitioner's contention that the product is "Sev", charging full rate of duty at 12.5% treating the product classified in the residual category. Prima facie, it appears to be wholly impermissible to impose the full duty. Therefore, the same cannot be concluded pending the petition. However, being the matter of Revenue implication and when there is possibility of charging product at 4% tax, even it is held to be "Sev", by way of interim relief, it is provided that there shall be stay against coercive recovery of the Tax demanded under the impugned order at Annexure"A" on the condition that petitioner shall deposit with the Government tax, tax interest at the rate of 4% along with simple interest at the rate of 9% per annum in the entire interregnum period latest by 31 st January, 2013. It is clarified such requirement should not be treated punitive. It is further clarified such deposit shall be subject to the outcome of the petition.
We are informed that assessment of earlier years have been taken in revision by the revisional authorities. Pendency of this petition shall not preclude the authority from proceeding further with hearing and disposal of such petition, of course, without being influenced by this interim order.
(AKIL KURESHI, J.) Page 2 of 3 C/SCA/15842/2012 ORDER (MS SONIA GOKANI, J.) bina Page 3 of 3