K. Vinod Chandran, CJ. – Two appeals from the common order dated 11.03.2005 of the Commercial Taxes Tribunal (for brevity ‘the Tribunal’) in a Miscellaneous Case and Revision Case, agitate the same issue. The appellant, a dealer under the provisions of the Bihar Value Added Tax Act, 2005 (for brevity ‘Act of 2005’) approached the authority under Section 77 for a ruling as to whether coconut oil, sold by it, would be taxed at the rate of 12.5% as a residuary item or at the rate of 4% as a commodity coming within Schedule-III.

2. The assessment year is 2005-06; the year in which the Value Added Tax regime was enforced in the State of Bihar, as in the other states. Initially, Entry 27 of Schedule-III contained edible oil and oil cakes which, by a notification dated 09.07.2005 was amended to read as “edible oils (other than coconut oil) or oil cakes.” Hence, up to 09.07.2005, the commodity was an edible oil liable to a lesser rate of tax as provided for Schedule-III goods. Even after the amendment of 09.07.2005, coconut oil would be taxable at the rate of 4% being a vegetable oil, which was included under Entry 82, which entry was substituted out by notification dated 01.04.2006, is the contention of the assessee.

3. We heard Sri S.D. Sanjay, learned Senior Counsel for the appellant and Sri Vikas Kumar for the State.

4. The appellant had approached the authority under Section 77(1)(e) of the 'Act of 2005'. The authority by Annexure-2 order produced in M.A. No. 98 of 2015 found that the invoice of the petitioner shows ‘coconut oil’ having been sold along with soap, detergents etc. making it clear that what is sold by the petitioner is used as hair oil and not as an edible oil. The Commissioner found that the lesser liability on edible oils and vegetable oils did not include hair oils which fall under the category of toiletries, which have to be taxed at a higher rate of 12.5%. ‘The Tribunal’ concurred with the said opinion by the common impugned order and also rejected the appeal filed from the order of assessment, confirmed in first appeal; which is challenged in M.A. No.99 of 2015.

5. The question of law arising is as to

“whether coconut oil sold by the assessee can be classified as an edible oil under Entry 27 and in the teeth of the exclusion of coconut oil from Entry 27, will it be possible for inclusion under Entry 82 being vegetable oil; as the entries in Schedule-III existed in the relevant year?”

6. Learned Senior Counsel appearing for the appellants argued that the Schedule itself was brought out at the nascent stage of introduction of Value Added Tax and there was bound to be some mistakes, the benefit of which has to be necessarily conceded to the assessee. It is pointed out, coconut oil is an edible oil and in that circumstance till 01.07.2005, it could be included in Entry 27 and after that under Entry 82, as a vegetable oil. It is also pointed out that coconut oil under the Customs Tariff Act is included under the common nomenclature of vegetable oils as per Section III Chapter 15 of the Customs and Central Excise Tariffs annexed along with M.A. No. 99 of 2015. The Senior Counsel asserts that even in the relevant assessment year, the coconut oil sold by the assessee was only liable to tax at the rate of 4%.

7. The learned State Counsel on the other hand points out that the assessee though claimed coconut oil as an edible oil, was selling it as hair oil, which would not come either within the definition of an edible oil or under the nomenclature of vegetable oil; since coconut in the normal parlance is not a vegetable. Thus, the State defended the order of ‘the Tribunal’.

8. The appellant, even in the memorandum of appeal does not have a clear case as to whether coconut oil manufactured and sold in the brand name of ‘Parachute’ is an edible oil or a hair oil. The contention is that coconut oil manufactured and sold in the brand name of ‘Parachute’ by the appellant is 100% pure coconut oil containing no amount of perfumes. It