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case, the facts of which case shall be noted in detail for deciding these cases.
4. Civil Appeals arising out of SLP(C) Nos. 1469798 of 2016 and SLP(C) No.9467 of 2016 are between the same parties whereas Civil Appeals arising out of SLP(C) Nos.2446061 of 2016 have been filed by different appellants. Civil Appeals arising out of SLP(C) Nos. 1469798 of 2016
5. The appellantM/s. Parle Agro (P) Ltd. is a dealer engaged in fruit juice based drink known as ‘Appy Fizz’ which has obtained certificate of registration under Kerala Value Added Tax Act, 2003 (hereinafter referred to as “Act, 2003”). The appellant was classifying the product as fruit juice based drink under Entry 71 of the notification issued under Section 6(1)(d) of Act, 2003 till 2007 and was paying @ 12.5% VAT. One M/s. Trade Lines (a distributor of appellant Company) was assessed by the authorities under the Act, 2003 holding that M/s. Trade Lines is liable to pay tax @ 20% on the product. M/s. Trade Lines filed OT Revision No.114/2013 in the High Court of Kerala against the order passed by Kerala Value Added Appellate Tribunal dismissing the appeal. The High Court vide its judgment and order dated 17th November, 2014 dismissed the revision upholding the order passed by the Assessment Officer and the First Appellate Authority. Special Leave Petition was filed by M/s. Trade Lines against the judgment of Kerala High Court which was, however, permitted to be withdrawn by order dated 19th January, 2015 of this Court. On 4th August, 2015 the assessment notices were issued to the appellant for Assessment Year 200915 proposing classification of ‘Appy Fizz’ under Section 6(1)(a)of the Act, 2003 as “aerated branded soft drink” and tax liability @ 20% . After receipt of the notices appellant filed an application dated 24th August, 2014 under Section 94 of the Act, 2003 seeking clarification of product ‘Appy Fizz’. In the clarification application the appellant claimed that product ‘Appy Fizz’ had rightly been clarified as ‘fruit juice based drink’ and which has tax liability of 12.5%. Along with the clarification application appellant has filed certificates and expert opinions. Writ Petition No.26279/2015 was filed by the appellant before Kerala High Court seeking direction to the Commissioner of Commercial Taxes to consider and pass order on the application for clarification within a specified time and the proceedings initiated by the Commissioner of Commercial Taxes by different notices be kept in abeyance. Learned Single Judge by its judgment and order dated 31st August, 2015 disposed of the writ petition directing the Commissioner of Commercial Taxes to consider and pass orders on the clarification application within a period of one month from the date of receipt of the judgment and liberty was given to the appellant to produce all material on which it intends to place reliance to substantiate its clarification with regard to the classification of the product, further proceedings in various notices were kept in abeyance. The Assistant Commissioner and Commissioner of Commercial Taxes filed a writ appeal against the judgment of the learned Single Judge before Division Bench of the Kerala High Court. The Division Bench of Kerala High Court vide its judgment dated 5th October, 2015 dismissed the writ appeal by affirming the decision of the learned Single Judge.
9. M/s. We Six Traders Etc.Etc. is a dealer in fruit juices and other drinks manufactured by M/s. Parle Agro (P) Ltd. Assessment Commissioner has issued notices for assessment years 201011 to 201314 and April to June 2015 proposing to classify the product ‘Appy Fizz’ as ‘aerated branded soft drink’ @ 20% VAT. After the judgment of the High Court dated 5 th February, 2016 in the case of M/s. Parle Agro (P) Ltd. order of assessment was issued against which the assessee filed appeal before Kerala Value Added Tribunal in which appeal the Tribunal directed the assessee to deposit 30% as precondition to hear the matter on merits. The assessee filed writ petition in the High Court challenging the aforesaid order passed by the Tribunal on the stay petition. The assessee submitted before the High Court that against the judgment of the High court dated 5 th February, 2016 in the case of M/s. Parle Agro (P) Ltd. SLP has already been filed, hence, the assessee should not have been called to remit the entire amount. The High Court vide its judgment and order dated 14th July, 2016 disposed of the writ petition directing the demand made in the above cases shall remain stayed till disposal of the appeals on condition of assessee depositing 50% of the amount involved. Civil Appeals arising out of SLP(C)Nos. 2446061 of 2016 have been filed against the aforesaid judgment and order of the Kerala High Court dated 14th July, 2016.
45. Appellant had relied on the order of CESTAT dated 18.03.2008 reported in 2008 (226) ELT 194(TribunalDelhi) which was in appeal filed by the Commissioner of Central Excise, Bhopal against the M/s. Parle Agro Pvt. Ltd. regarding classification of the same product 'Appy Fizz' and the order passed by the Commissioner(Appeals) whereby it was held that product 'Appy Fizz' is classifiable under subheading No.22029020 of Central Excise Tariff on the ground that the product is fruit juice based drink. Revenue challenged the order on the ground that the same is classifiable under subheading No.22021010 of Central Excise Tariff as 'aerated water'. The Tribunal vide its judgment dated 18.03.2008 dismissed the appeal. The order in paragraph 5 has referred to relevant subheading No.220210 and 22029020 on which Revenue had relied is to the following effect:
“INSTITUTE OF CHEMICAL TECHNOLOGY ICT/FET/USA/1590 June 11, 2015 TO WHOMSOEVER IT MAY CONCERN Technical opinion on the product Appy Fizz manufactured by PARLE AGRO PVT LTD.
Appy Fizz is a fruit product manufactured using apple juice concentrate as a fruit juice source. The ingredients declared on the label include Water, Sugar, Apple Juice concentrate, Carbon dioxide(290), malic acid, citric acid, preservatives(sodium benzoate, potassium metabisulphite and potassium, sorbate), ascorbic acid and added nature identical flavouring substances and natural colour. The juice content of APPY FIZZ is 12.7% m/m and Total solids content is 13%. The product is manufactured under FSSAI licence category Ready to Serve fruit beverage/drink.