JUDGMENT :

1. The present bunch of Sales Tax Revisions/References (for short “STRs”) were admitted on following question(s) of law:

In STR No. 58/2013:

“Whether ‘Pizza’ falls within the notification dated 09.03.2010 and is entitled for exemption of payment of VAT in excess of 5% thereupon”

In STR Nos. 91/2016, 92/2016, and 93/2016:

“(i) Whether sandwich is a cooked food as per notification dated 09.03.2010?

(ii) Whether in the facts and circumstances of the case and the proper interpretation of the term branded bakery product and the provisions of law, the Ld. Rajasthan tax Board is justified in holding that the sale of sandwich as a branded bakery product?

(iii) Whether the subsequent legislature amending the notification and the rate schedule can be used for interpretation of the earlier provisions of law?”

2. The lis in question pertains to classification of ‘pizza’ and ‘sandwich’ under the Rajasthan Value Added Tax Act, 2003 (for short “RVAT”). The common issue for consideration of this Court is whether ‘pizza’ and ‘sandwich’ fall within the ambit of “cooked food” to claim benefit of exemption notification dated 09.03.2010? Since the issue involved is identical, STR No. 58/2013 is taken as lead file.

3. Learned counsels for the petitioner-assessee, at the outset, has drawn attention of this Court to the Notification No. F.12(22)FD/Tax/10-87 dated 09.03.2010 issued by Finance Department (Tax Division), which reads as under:

“S.O.391-In exercise of the powers conferred by subsection (3) of section 8 of the Rajasthan Value Added

Tax Act, 2003 (Act No. 4 of 2003), the State Government being of the opinion that it is expedient in the public interest so to do, hereby exempts from tax payable by a dealer, to the extent the rate of tax exceeds 5 percent, on the sale of food cooked by him and served in the restaurants and hotels below three star category.”

4. Learned counsels for the petitioner-assessee submits that the learned Tax Board has erred in law and in fact by holding that ‘pizza’ and ‘sandwich’ are ‘baked branded products’ and not ‘food’. Learned counsels for the petitioner-assessee submits that there is no dispute with regard to the fact that the restaurants run by the petitioner-assessee are below 3 star category and that ‘pizza’ is prepared by the process of baking, which is one of the various process of cooking. It is submitted that ‘pizza’ is a compete food which provides valuable nutrients required by the human body viz. carbohydrates, fats, vitamin, proteins, minerals, etc. Similarly, sandwich is also prepared by cutting the bread loaf, which is also prepared in the restaurant, into half and then by adding either vegetable patty or non-vegetarian item like meat and chicken (the fillings), which are prepared by frying and heating. The sandwich also contains various fresh vegetables and sauces and is in itself a complete meal having high nutritional value and nourishment, which is cooked by the petitioner-assessee and sold to various customers.

5. Learned counsels for the petitioner-assessee have challenged the orders of the Tax Board, primarily, on the following grounds:

a) The first contention of the petitioner-assessee is that the revenue has not discharged its onus to prove that ‘pizza’ and ‘sandwich’ are not cooked foods. It is submitted that neither any expert/technical opinion was sought nor any evidence was brought on record to prove their point. Rather, the revenue has relied upon definitions provided on ‘Wikipedia’ and even then have misconstrued the definition therein. It is submitted that as per settled position of law, onus or burden to show that a product falls within a particular tariff item is always on the revenue and since the revenue has failed to discharge its onus, the reference ought to be allowed in the favour of the petitioner-assessee. Reliance in this regard is placed on Apex Court judgments of Voltas Ltd. vs. State of Gujarat reported in [(2015) 80 VST 12 (SC)], Commissioner of Central Excise vs. Hindu