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2. Since the common question of law and facts are involved in these petitions and the issue whether the Fryums can be treated as Pappad which falls under Entry 40 of the I Schedule to the KVAT Act, all these petitions are clubbed together and disposed off by this common order.

3. The respondents-assessees are the registered dealers under the provisions of the KVAT Act and the assessee in STA No.89/2009 is the manufacturer of Fryums, doing business in sale of Rice, Soji and Flour and trading of Fryums and Pappad. The assessees have submitted their monthly returns. The establishments of the assesses' were inspected by the Competent Authorities and observed that the dealers are engaged in the trading of Fryums along with other commodities. On physical verification of the commodities dealt, it is noticed that they are doing business in the Fryums and claimed exemption for sale of Fryums on the ground that the Fryums are the Pappad. The Deputy Commissioner of Commercial Taxes, (Audit), noticing that the dealers have dealt with the Fryums which are taxable under Residuary Entry under Section 4(1)(b) of the Act, has wrongly classified it as exempted goods, defining it as Pappad. Further the Fryums cannot be treated as Pappad, it is a Sandige and semi-cooked food. Since the Sandige has not been defined under the Act, the assessees have to pay tax under Section 4(1)(b) of the Act. Accordingly notice was issued to them under Section 39(1) of the KVAT Act. The assessees have filed their objections to the contending that the Fryums are the Pappad in smaller shapes. It has similar taste and the characteristics of Pappad. All the ingredients of Pappad are being used for manufacturing of Fryums. However, it is only in smaller dimensions.

4. The Hon'ble Supreme Court in SHIVASHAKTHI GOLD FINGER v/s ASSISTANT COMMISSIONER, COMMERCIAL TAXES, JAIPUR reported in (1996) 9 SCC 514 has held that "all varieties of Pappad, whether they are circular or flat in shape consisting of all ingredients, whether it is pulse, rice or maida, etc." Hence, the Fryums has to be treated as Pappad for the purpose of payment of tax whereas, Sandige is a dense, solid of small diameter and substantially thick. After frying, the Sandige has to be chewed whereas the Fryums after frying become crunchy wafers and it melts into fine paste. The Fryums sold by the respondents had been dealt by the Central Excise and Service Tax Appellate Tribunal, Bangalore and held the commodity as a Pappad. In the market also it was sold as Pappad round, Pappad twist and Pappad trikone. Further, it was in different shapes such as mini checks, buttons, short tubes, stars, mini wheels and O Rings. However, contain all ingredients of Pappad and sought for dropping the proceeding initiated under Section 39(1) of the KVAT Act. The Assessing Authority after considering the objections filed by the assessees held that the Fryums cannot be treated as Pappad and it is in the nature of Sandige. Since the Sandige has not been defined under the Act, the assessees have to pay tax under Section 4(1)(b) of the KVAT Act. Accordingly reassessed and imposed penalty under Section 72(2) and interest under Section 36 of the Act.

13. We have carefully considered the arguments addressed by the learned counsel for the parties and perused the orders passed by the Karnataka Appellate Tribunal, First Appellate Authority as well as Assessing Authority.

14. The records clearly disclose that the assessee in STRP Nos. 6 & 29-63 and STRP 73 & 170-192/2001 are the dealers in the commodity in question known as Fryums. The respondent in STRP No.89/2009 is the manufacturer and dealer of the food articles popularly known as Fryums. The commodity manufactured by the assessee was taxed at 2% as Pappad under KST and CST Acts. After coming into force of KVAT Act, the pappad was brought under Entry No.40 of the First Schedule to the Act. Further, the respondent/assessee i.e. M/s. TTK Health Care filed an application before the Advance Ruling Committee under Section 60 of the KVAT Act seeking for clarification with regard to the rate of tax in respect of the Fryums manufactured by the assessees. The Advance Ruling Committee by its order dated 30-3-2007 held that the Fryums cannot be treated as Pappad, which falls under Entry 40 of the First Schedule to the Act. The shape, taste and ingredients of the Fryums are nothing but Sandige and falls under Section 4(1)(b) of the KVAT Act and are liable to pay tax at the rate of 12.5%. Being aggrieved by the order passed by the Advance Ruling Committed, M/s. TTK Health Care Limited who is the respondent in STRP No.89/2009 filed STA No.11/2007 before this Court. The Division Bench of this court dismissed the appeal confirming the order passed by the Advance Ruling Authority. Being aggrieved by the said order, a Special Leave Petition in SLP No. 450/2008 was filed before the Hon'ble Supreme Court. Subsequently, the said SLP was withdrawn with liberty to agitate the matter before the Assessing Authority in view of the amendment brought in by Act No.6 of 2007 to the KVAT Act.

12. In the present case we have quoted the definition of term "cooked food". It is an inclusive definition. It includes sweets, batasha, mishri, shrikhand, rabari, doodhpak, tea and coffee but excludes ice cream, kulfi, ice candy, cakes, pastries, biscuits, chocolates, toffees, lozenges and mawa. That the item "cooked food" is inclusive definition which indicates by illustration what the legislature intended to mean when it has used the term "cooked food". Reading of the above inclusive part of the definition shows that only consumables are sought to be included in the term "cooked food". In the case of "fryums" there is no dispute that the dought/base is a semi-food. There is also no doubt that in the case of "fryums" a further cooking process was required. It is not in dispute that the "fryums" came in plastic bags. These "fryums" were required to be fried depending on the taste of the consumer. In the circumstances we are of the view that "fryums" were like seviyan. "Fryums" were required to be fried in edible oil. That oil had to be heated. There was certain process required to be applied before "fryums" become consumable. In these circumstances the item "fryums" in the present case will not fall within the term "cooked food" under Item 2, Part I of Schedule II to the 1994 Act. It will fall under the residuary item "all other goods not included in any part of Schedule I"