IN THE HIGH COURT OF ORISSA AT CUTTACK STREV No.49 of 2024 M/s. Parle Agro Pvt. Ltd., ..... Petitioner Bhubaneswar versus-

Additional Commissioner of ..... Opposite Party Sales Tax (Appeal), Odisha, Cuttack Advocates appeared in this case:

For petitioner : Mr. Bharat Raichandani, Advocate Mr. M. Raichandani, Advocate For Opposite Party : Mr. Sunil Mishra, Standing Counsel Mr. S. Das, Addl. Standing Counsel CORAM:

THE HON'BLE MR. JUSTICE ARINDAM SINHA AND THE HON'BLE MR. JUSTICE M.S.SAHOO

J U D G M E N T

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Date of hearing and judgment : 6^th January, 2025 -------------------------------------------------------------------------------------------------------

ARINDAM SINHA, J.

1. Mr. Raichandani, learned advocate appears on behalf of petitioner. He submits, the petition for revision be admitted on questions suggested in additional affidavit dated 2^nd January, 2025.

The suggested questions are reproduced below.

“a. Whether, in the facts and circumstances of the present case, the Hon’ble Tribunal was correct and justified in passing a non-speaking order without considering the submissions of the Petitioner?

b. Whether, in the facts and circumstances of the present case, the Hon’ble Tribunal was correct in classifying the product as “Rusk” (hardened bread) under Entry 77B of the Schedule of the OVAT Act, 2004, instead of classifying it as “Bread (branded or otherwise)” under Entry 34 of Schedule A of the OVAT Act, 2004?

c. Whether, in the facts and circumstances of the present case, the Hon’ble Tribunal was correct in not considering the judgment of Kesharwani Enterprises vs State of Chhattisgarh – 2019 (28) GSTL 397 (Chhattisgarh)?

d. Whether, in the facts and circumstances of the present case, the Hon’ble Tribunal was correct in imposing penalty on the Petitioner?”

2. He submits, the dispute is regarding classification of his client’s product. It is toasted bread. Being bread it is to be classified under entry 34 in Schedule A of Orissa Value Added Tax Act, 2004. His client duly disclosed particulars of the product, marketed and sold, in its accounts. There were conflicting findings on fact by the Assessing Officer (AO), the Commissioner (Appeals) and the Tribunal. The adjudicating authorities suffered from confusion in seeking to classify his client’s product under entry 77B in Schedule B. Clear case of his client before the authorities and particularly in the Tribunal was upon reliance of, inter alia, opinions obtained from experts, who all unanimously opined that the product is bread. As such, value added tax was not paid on the product. By impugned order dated 26^th September, 2024, the Full Bench of the Orissa Tax Tribunal, Cuttack erroneously classified the product as coming under entry 77B in Schedule B, thereby levying the tax and twice the amount as penalty per un-amended sub-section (5) in section 42. 3. Mr. Raichandani submits further, the confusion apparent from the several orders, beginning with the assessment order, will show that the authorities considered his client’s product to be ‘namkeen’. Entry 77B in Schedule B relates to exactly those items that have been mentioned therein. His client’s product is nowhere near being a ‘namkeen’. It is bread and therefore did not and does not attract levy nor collection of value added tax.

4. He cites view taken by a learned single Judge in the High Court of Chhattisgarh on judgment dated 5^th March, 2018 in Kesharwani Enterprises v. State of Chhattisgarh available at 2018 SCC OnLine Chh 988. He relies on several paragraphs in the judgment. Reproduced below is paragraph-34 from it.

“34. Under the factual circumstances, this court is also of the opinion that the term “bread” under Schedule I, entry 7 has to be construed as a generic entry made and it has to be given the widest interpretation that could be given, subject to the condition that the ingredients being substantially the same. Thus, t