Case Law Details
Sarva Shri Neeraj Misthan Bhandar Vs The Commissioner, Commercial Tax (Uttarakhand High Court)
In this case, we are concerned with the question as to whether Samosa is to be treated as namkeen or cooked food and we are not asked to pronounce upon whether it is to be treated as unclassified items, the choice is narrowed down to whether it is to be treated as namkeen or as cooked food. If we apply the test as to whether it is consumable in the sense that it would be ready to be eaten unlike the case of fryums, there can be no manner of doubt that samosas are cooked food. This if for the reasoning that when a person dealing in samosa offers it for sale to the consumers, then without any further act on the part of consumer, it is ready to be consumed and it is in a consumable condition. In that sense, there can be no doubt that it is cooked food. There can also be no doubt that samosa is a product which emerges or gets manufactured after involving a process of cooking.
Contrast this with namkeen. Namkeen is found in the company of sweets in the entry concerned. Samosas are not sweets. In fact, there is no case of the petitioner that it is to be characterized as sweets. It is brought to our notice that samosa is an item which is cooked and it is ready to be eaten and it is ordinarily consumed without much delay from the time when it is cooked. Ordinarily, it is meant to be so consumed. Learned representative of the State urges before us the distinction between namkeen and samosa to be that namkeens have larger longer shelf-life, the products which can be consumed even over a long period of time perhaps by addition of requisite preservatives.
While it is true that the assessee has raised a ground that samosa is to be taxed at 5% and not at 8%, there is no expatiation of the ground as to what would be the basis. There is no material produced by the assessee in support of the contention that Samosa is to be treated as namkeen and not as cooked food. Under the law, the assessee could have produced material or evidence in support of the contention that samosa is namkeen. Namkeen is ordinarily understood as mixtures and daalmot. It is unlikely that if a person walks into a shop and asks for namkeen, he would be offered samosa.
We must record that we are conscious of the fact that Samosa may not be a meal as such as was understood by the Hon’ble Apex Court in the case of Annapurna Biscuit Manufacturing Co (Supra). In fact, the learned counsel for the revisionist emphasized that the word “cooked food” is called in Hindi as “pakaya hua bhojan” and in that sense, it may be correct to say that Samosa may not be a meal as such. But, here we are constrained to incline ourselves to take the view that Samosas are more appropriately dealt with under the entry “cooked food” rather than “namkeen”. We have noticed that samosa is certainly cooked food and since it satisfies requirement of cooked food otherwise in a broad sense and since the other alternative is to tax it under namkeen which does not appeal to us, in the absence of any material or finding in the orders, we are inclined to not overturn the order of the authorities, as confirmed by the Tribunal which is undoubtedly the fact finding authority as samosas are to be taxed at the rate of 8% for the first six months and, for the next six months, at the rate of 4%, on the basis that cooked food under the VAT Act attracted 4%.
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