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Yakult Damone India Private Ltd., 102, Gangadhar Chetty Road, Bengaluru-560042

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Yakult Damone India Private Ltd., 102, Gangadhar Chetty Road, Bengaluru-560042 GOVERNMENT OF KARNATAKA (Department of Commercial Taxes) PROCEEDINGS OF THE AUTHORITY FOR CLARIFIATION AND ADVANCE RULINGS UNDER SECTION 60 OF THE KARNATAKA VALUE ADDED TAX ACT,2003 r/w RULE 165 OF THE KARNATAAKA VALUE ADDED TAX RULES, 2005 Present : 1) R. Jagadish Prasad, Chairman 2) Sayeed Ahmed Khan, Member 3) B.V.Ravi, Member Name & Address of the Applicant : M/s Yakult Damone India Private Ltd., 102, Gangadhar Chetty Road, Bengaluru-560042. TIN : 29830575687 Jurisdictional Assessing Authority : ACCT, LVO-45 Applicant represented by : Shri. G. Shivadass, Advocate. ORDER NO. AR.CLR.CR.23/2011-12 DATED 15.02.2016 * * * * * * M/s Yakult Damone India Private Ltd., 102, Gangadhar Chetty Road, Bengaluru- 560042(herein afterwards referred to as ‘Applicant’) had sought clarification on the rate of tax under the provisions of the Karnataka Value Added Tax Act, 2003 applicable to ‘Yakult’. The Authority for Clarification and Advance Ruling (herein afterwards referred to as ‘ACAR’) vide order No. AR.CLR.23/2011-12 Dated 21-04-2012 had clarified the rate of tax on this commodity. The applicant had preferred appeal before the Hon’ble High Court of Karnataka against this order on the ground that the order passed by ACAR consisting of two members, namely Chairman and another member, is not sustainable and is not in conformity with the statutory provision of sub-section(1) of Section 60 of the Karnataka Value Added Tax Act, 2003. 2 [AR.CLR.CR.23 /2011-12] The Hon’ble High Court of Karnataka Vide order No. STA 119/2012 Dated 30th September 2015 allowed the appeal and has quashed the order of the ACAR dated 21.04.2012 and remanded the matter to be decided afresh by the ACAR properly constituted under Section 60 of the KVAT Act, 2003 consisting of at least three Additional Commissioners. It is also directed that the properly constituted Authority shall hear and decide the matter as expeditiously as possible, but not later than four months from the filing of certified copy of this order before the respondent. The Hon’ble High Court has also clarified that, the Court has not looked into the merits of the claims of the applicant and the Authority constituted for deciding the matter shall look into the merits of the claims of the applicant. 2. The Commissioner of Commercial Taxes has constituted the Authority for Clarification and Advance Ruling vide Order NO.PRO/AR.CLR/MISC-4/15-16Dated 31.10.2015 which consists of three Additional Commissioners which is the minimum prescribed by the statute. As per the direction of the Hon’ble High Court of Karnataka, the applicant has filed a letter dated 30th November 2015 enclosing a copy of the order of the Hon’ble High Court of Karnataka. This letter is received on 2.12.2015. The applicant in this letter had requested to take up the matter and to grant hearing in the matter before passing any order. Further submissions were filed on 22.1.2016. 3. As per the request of the applicant, in the interest of natural justice, notice for hearing was issued to the applicant and the matter was posted for hearing on 28.12.2015. In response to this notice, Shri Shivadass, Learned Advocate duly authorized by the applicant appeared before ACAR and he was heard. At the time of hearing he reiterated the contentions raised in the application filed for seeking clarification and also filed Annexure-4 to the letter dated 30.11.2015 and also copies of the judgements relied on. He argued the matter and pleaded that ‘Yakult’ is a probiotic fermented milk drink which is like ‘Lassi’ and falls under entry 19 of the First Schedule to KVAT Act, 2003 and is to be classified as ‘Curd and Butter Milk’. 4. Application filed by the applicant seeking clarification with regard to rate of tax on ‘Yakult’ under the provisions of the KVAT Act, 2003 is examined by the ACAR with reference to the submissions made in the application, annexures to the application, arguments made by the learned Advocate and law. The applicant pleads that, their product ‘Yakult’ is like ‘Lassi’ and akin to 3 [AR.CLR.CR.23 /2011-12] ‘Curd and Butter Milk’ as both are fermented milk product and involves similar processing steps. He has submitted that being basic nature and substance of the product in the instant case is akin to curd/buttermilk, the product ‘Yakult’ is to be classified under entry No.19 of the First Schedule to KVAT Act, 2003. He submits that Curd, buttermilk and Lassi are fermented milk product/drinks made by the process of fermentation using lactic acid and bacteria and curd is the most concentrated form and the buttermilk is the most diluted form and Lassi falls in between curd and buttermilk. He further submits that the Curd or Dahi is known to be in various forms as Milk Dahi, Skim Milk Dahi, Sweet Dahi or Flavored types, Salt or Sour Dahi, Probiotic Dahi, Symbiotic Dahi, Fruit Dahi and Dahi is also known as ‘Yogurt’ in some parts of which may be in different flavours and similarly buttermilk and lassi also come in different flavours like mango, straw berry, rosewater, plain, masala and says that lassi and buttermilk are variations of curd. He has relied on the definition ‘Curd’ as per the Food Safety and Standards Act, 2006 & Food Safety and Standards (Food products Standards and Food Additives) Regulations, 2011 and states that in the States like AP, UP, Haryana, Delhi etc., the VAT Acts have put the products Curd, Buttermilk and Lassi in the same heading/category and in the same entry as they belong to the same species and the family. In support of his submissions the applicant has relied on the following decisions. i. Mauri Yeast India Pvt Ltd. Vs. State of UP 2008(225)ELT321(SC) ii. Commissioner of Central Excise vs. Wockardt Life Sciences Ltd. 2012(277)ELT299(SC) iii. Indian Aluminium Cable Ltd. Vs. UOI-(1985)3SCC284 iv. Commissioner of Sales Tax, MP vs. Jaswant Singh Charan Singh(1967)2SCR720 v. Ramavatar Budhaiprasad Vs. Assistant Sales Tax Officer, Akola -1962(1)SCR 279 vi. K.V. Varkev Vs. Agricultural Income Tax and Rural Sales Tax Officer, Peermade- (1954)5STC 348 vii. Aluva Sugar Agency Vs. State of Kerala-(2011) 9 SCC 658 viii. C.C.E. vs. Pioneer Scientific Glass Works [2006(197)E.L.T.308] ix. Naturalle Health Products(P)Ltd. Vs. Collector of Central Excise, Hyderabad [(2004) 9 SCC 136] x. Asian Paints India Ltd vs. CCE – [(1988)2SCC470] xi. State of Maharashtra Vs. Bradma India Ltd (2005)140STC17 SC xii. Alladi Venkateshwaralu and Others Vs. Government of Andhra Pradesh and Another [1978]41STC394(SC) 4 [AR.CLR.CR.23 /2011-12] xiii. Nandi Printers Private Limited Vs State of Karnataka [2001] 122 STC 164(Kar) xiv. Aluva Sugar Agency Vs. State of Kerala [2011]45VST 1 (SC) xv. Union of India & Others Vs. Garware Nylons Ltd.(1996)10(SCC)413 xvi. Allahabad Dugdh Utpadak Sahakari Vs. Commissioner of Trade Tax decided on 9.10.2006 xvii. R.F. Enterprises Vs. State of Kerala (2009)23VST 148(Ker) 5. The applicant at the time of hearing placed annexture-4 to letter dated 30.11.2015 by enclosing note on Probiotics, Fermented Milk Drink, Lactic Acid Bacteria, LCS and Manufacturing process, Extracts of literature called ‘Dahi and Related Products’ of Jashbhai B.Prajapati and Sreeja V New Delhi Publishers, Extracts of Outlines of Dairy Technology, Sukumar De, Oxford University Press, Extracts of Technology of India Milk Products, extracts of Handbook on Process Technology Modernization for professionals, Entrepreneurs and Scientists by R.P. Aneja, B. N. Mathur, R. C. Chandan, A. K. Banerjee, Dairy India Publication, Certificate by Indian Dairy Association dated 23.01.2007, Certificate by Dairy Science College and Certificate by Dairy Technology Society of India, Dairy Research Institute an pleaded that ‘Yakult’ is a Lassi falling under entry 19 of First Schedule to KVAT Act and hence exempted. Further submissions also reiterates these contentions. 6. The main contention of the applicant that their product ‘Yakult’ is like ‘Lassi’ and akin to curd and Butter milk’ as both are fermented milk product which involves similar processing steps and that being basic nature and substance of the product in the instant case akin to curd/buttermilk, the product ‘Yakult’ is to be classified under entry No.19 of the First Schedule to KVAT Act, 2003 is required to be viewed in the background of classification of Commodities for the purpose of taxation by the Legislature. Entry no. 19 of the First Schedule reads as follow: 19. Curd and Butter Milk Claim of the applicant that ‘Yakult’ is ‘Lassi’ akin to Curd and Butter Milk and hence it shall be classified under entry 19 cannot be accepted for the reason that, legislature has not included ‘Lassi’ in that entry and exempted only ‘Curd’ and ‘Butter Milk’. The applicant in its website 5 [AR.CLR.CR.23 /2011-12] http://www.yakult.co.in/faqs.php has brought out the difference between Yakult and Yoghurt in FAQ as follow: What is the difference between Yakult and Yoghurt? Yakult and yoghurt are both cultured dairy products made from milk fermented with live bacteria. However Yakult contain 6.5 billion live bacteria that reach our intestine alive. Also the strain of bacteria Lactobacillus casei strain Shirota is unique and different from the strain of bacteria found in yoghurt and dahi. The applicant admits the difference between ‘Yakult’ and ‘Dahi’ or ‘Curd’ and pleads to equate both of them for the purpose of rate of tax.
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