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Judgment
Hon''ble Bharati Sapru,J.
As the controversy involved in these four revisions is identical, the matter is being decided by this Court by a common judgment and order treating the Commercial Tax Revision no.830 of 2010 as the leading case.
The present revision has been filed by the assessee challenging the order dated 21.7.2010 passed by the Tribunal, Kanpur by which the Tribunal has confirmed the classification of Toffees, Candies and Lollypops to an unclassified item liable to tax @12.5% and has not accepted the claim of the applicant, who claims that these items are to be taxed @4% on Part-A, Schedule -II of the VAT Act.
It is the contention of the learned Counsel for the revisionist that the items, which are being sold by namely Toffee Candy and Lollypop are liable to be covered under Entry-137 of the Schedule-II of the VAT Act. His contention is that the items, which are being sold by him are sugar products on account of the fact that more than 70% sugar exists in all the three products. He has sought to rely on two Circulars issued u/s 59 of the VAT Act dated 5.3.2008 and 30.6.2008 under which a sugar product has been defined to contain 70% Sugar 25% Liquid Glucose and 5% all other materials such as essence and colours.
Learned Counsel for the revisionist states that his products in fact contains more than 90% sugar. He contends that he has produced before the assessing authority even chemical analysis report to establish this but the same has been ignored. He argues that the Circulars are binding on the Commissioner under which the percentage of sugar to be contained in a sugar product has been clearly spelled out. His contention is that he has been wrongfully denied of the benefit of Entry 137 and his product is not being classified as a sugar product and is being wrongly classified as an unclassified item.
Learned Standing Counsel for the State does not deny the decision of the Commissioner nor does he deny the binding effect of such a decision made u/s 59 of the VAT Act. However, since the facts of the case are still in realm of dispute it would be in the best interest of justice as well as the department that products, which are being sold and traded by the assessee are subjected to a chemical analysis test, which may be carried out by a government approved laboratory to testify as to what is the percentage of Sugar and thereafter the assessing authority may pass fresh orders in accordance with law. The Chemical analysis may be carried out within the next two months from the date a certified copy of this order is being placed before the authority concerned. A copy of this order may be placed before the authority within a period of one week from today. The assessing authority may pass fresh orders thereafter in accordance with law within a period of next three months.
In view of the directions given above, the order of the Tribunal dated 21.7.2007 is set aside. Fresh orders may be passed in accordance with law.
All the revisions stand disposed of.