2023 (7) TMI 188 - AAR - GST

Loading unloading services for imported agricultural produce don't qualify for GST exemption under Notification 12/2017

In Re: M/s. Sona Ship Management Private Ltd.

The AAR West Bengal ruled that loading and unloading services for imported unprocessed toor, whole pulses, and black matpe do not qualify for GST ... Exemption from GST - services relating to agriculture produce - service of loading and unloading of imported unprocessed ‘toor’ and ‘whole pulses’ and ‘black matpe’ - applicability of Sl No. 54(e) of the Notification No. 12/2017-Central Tax (Rate), Sl. No. 24 of notification No. 11/2017-Central Tax (Rate) both dated 28.06.2017 - charging of tax by the agents from applicant is in violation to the Notification No 12/2017 dated 28.06.2017 serial No 3 or not - services in relation to loading and unloading of imported unprocessed toor and whole pulses and black matpe are agricultural produce or not - covered under the circular No 16/16/2017-GST dated 15.11.2017 and the Circular is binding or not? HELD THAT:- The applicant is stated to be acting as a stevedore. In the instant case, the applicant has filed the application seeking an advance ruling whether services relating to loading and unloading of unprocessed ‘toor’ and ‘whole pulses’ and ‘black matpe’ is eligible for exemption being loading and unloading services of agricultural produce as specified under serial number 54(e) of Notification No. 12/2017 - Central Tax (Rate) dated 28/06/2017 (corresponding State Notification No. 1136 –F.T. dated 28/06/2017), as amended from time to time. As per serial number 54 of Notification No. 12/2017 -Central Tax (Rate) dated 28/6/2017, services relating to the cultivation of plants, inter alia, for agricultural produce are exempt and classified under SAC 9986. However, a conjoint reading of the aforesaid entry and the definition of ‘agricultural produce’ delineates that the said services can be eligible for exemption where such services are supplied till the products are taken to the primary market for disposal. The expression ‘makes it marketable for primary market’ in the definition of ‘agricultural produce’ bears a significant importance. The term 'primary market' has not been defined in the GST Act. However, on the basis of location or place of operation, such markets in relation to agricultural produce are located in towns near the centres of production of agricultural commodities. In these markets, a major part of the produce is brought for sale by the producer-farmers themselves. Transactions in these markets usually take place between the farmers and primary traders. In the case of T.P. Roy Chowdhury & Co. (P.) Ltd [2020 (1) TMI 139 - APPELLATE AUTHORITY FOR ADVANCE RULING, WEST BENGAL], the West Bengal Appellate Authority for Advance Ruling has observed The primary market in the instant case being located in foreign shores does not conform to the definition as stated above. Further there is no evidence that the grains have not undergone any type of treatment before leaving the foreign country from where they have been imported into India. Applicability of clarification given in circular No 16/16/2017-GST dated 15.11.2017 - HELD THAT:- Circular No. 16/16/2017-GST dated 15/11/2017 issued by CBIC clarifies that pulses (de-husked or split) are not considered as agricultural produce since the process of de-husking or splitting of pulses is usually not carried out by farmers or at farm level but by the pulse millers. It therefore appears that for the purpose of agricultural produce, the processes and services that are applied till the goods are at the farmer's hand to make it marketable for primary market is to be considered. Any services supplied for loading and unloading as supplied by the applicant after the goods left the primary market do not qualify for exemption under serial number 54 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017. Thus, services by way of loading and unloading of imported unprocessed ‘toor’ and ‘whole pulses’ and ‘black matpe’ as involved in the instant case does not qualify for exemption under serial number 54(e) of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017. Issues:The issues involved in the judgment are whether the service of loading and unloading of imported unprocessed 'toor' and 'whole pulses' and 'black matpe' is exempt under specific notifications, whether the services in relation to loading and unloading of these goods are considered agricultural produce, and the applicability of a circular in determining taxability.Issue 1: Loading and Unloading Services ExemptionThe applicant sought an advance ruling on whether the services of loading and unloading imported unprocessed 'toor' and 'whole pulses' and 'black matpe' are exempt under certain notifications. The applicant contended that these goods can be considered 'agricultural produce' as they do not undergo activities altering their essential characteristics. However, the revenue officer highlighted the need for physical verification to ascertain taxability.Issue 2: Classification as Agricultural ProduceThe applicant argued that the services related to unloading these goods should be exempt as they are considered 'agricultural produce' based on specific definitions. The revenue officer emphasized the need to determine whether the imported goods were husked or split before arrival to decide on exemption eligibility.Issue 3: Applicability of CircularThe applicant inquired about the applicability of a circular stating that de-husked or split pulses are not considered agricultural produce. The Authority noted that the question related to the circular's clarification was not covered under the relevant clauses for seeking an advance ruling and did not provide a ruling on this specific issue.In the judgment, it was observed that the services of loading and unloading imported unprocessed 'toor' and 'whole pulses' and 'black matpe' do not qualify for exemption under the specified notification. The ruling emphasized the significance of determining whether the goods are marketable for the primary market in deciding their classification as 'agricultural produce.' The judgment also referenced a previous case to support the interpretation of 'primary market' and highlighted the limitations of applying a circular in determining exemption eligibility.