TaxTMI 
TaxTMI 
2018 (5) TMI 1393
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....nbsp; Whether the whole (Sheep/Goat) animal carcass in its natural shape in frozen state in different weight and size packed in LDPE bags without mentioning the weight and one or two such LDPE bags further packed in HD PE bags being supplied to Army by applicant against tender shall qualify as product put up in "unit container"? 2. Whether the products as mentioned in query 1 shall be taxable under GST as per entry no. 4 of schedule II of the Notification no. 1/2017- Integrated Tax (Rate) dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 1 of schedule I of the Notification No. 43/2017-lntegrated Tax (Rate) dated 14th November 2017 or fall under exemption list as per entry no 10 of Notification No. 2/2017- Integrated Tax (Rate) New Delhi dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 9 of the Notification No. 44/2017-Integrated Tax (Rate) dated 14th November 2017? At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is Specification made to such dissimilar provisions, a reference to the CGST Ac....
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....e reproduced notification would reveal that if the items mentioned in Tariff Heading 0204 are put up in a 'unit container ', it would be exigible to tax @ 12%. c. Correspondingly, in exercise of the powers conferred by sub-section (l) of section 6 of the Integrated Goods and Service Tax Act, 201 7, the Central Government via Notification -Integrated Tax (Rate) New Delhi dated 28.06.2017 has exempted inter-State supplies of goods from the whole of the integrated tax leviable thereon as under. Relevant extract is reproduced below: Schedule S No Chapter Heading Sub- heading Tariff item Description of goods 10. 0204 Meat of Sheep or goats,[other than frozen and put up in unit containers] A conjoint reading of the extracts of the above-mentioned notification reveals that GST is chargeable only when the frozen meat is put up in 'unit containers'. ii. An amendment made in the schedule II of Notification No. 1/2017 dated 28th June 2017- Integrated Tax (Rate) vide Notification No. 43/2017 - Integrated Tax (Rate) dated 14th November 2017, w.e.f 15th November 2017 onwards, the following entry inserted whic....
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....ining the Applicant Interpretation or Law and Submission on issues on which Advance Ruling is sought 1. Section 9 of the Central Goods and Services Tax Act 2017 "9. (l) Subject to the provisions of sub-section(2) there shall be levied a tax called the central goods and services tax on all intra-state supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 and at such rates, not exceeding twenty per cent per cent., as may be notified by the Government on the recommendations of the Council and collected m such manner as may be prescribed and shall be paid by the taxable person. Thus, GST is chargeable as a reference to 'value' and at applicable rates. For the purpose of building the point of view, reference made to the [GST rate schedule as noti fied by the Government as under: 2. W.e.f from 1^st July, 2017 till 14th November, 2017 Schedule II of the Notification No 1/2017-lntegrated Tax (Rate) dated 28th June 2017 deals with the products which are subject to 12 % GST and entry No 4 which pertain to sheep/Goat meat respectively are provided below: Schedule II S N....
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....ods, fresh or chilled 9 0204 All goods (other than fresh or chilled) and put up in container and,- (a) bearing a registered brand name: or (b) bearing a brand name on which actionable claim or enforceable right in court of law is available [other than those where any claim or enforceable right in respect of such brand name has been foregone voluntarily], subject conditions as in the ANNEXURE I/": 8. Conditions for Taxability:- A conjoint reading of the extracts of the above-mentioned notifications reveals that GST is chargeable subject to fulfillment of conditions as tabulated below. • W.e.f. from 1st July, 2017 till 14th November, 2017 • Must be frozen • Must be packed in unit container • W.e.f. from 15th November, 2017 onwards • Must be frozen • Must be packed in unit container • Must bear a brand 9. keeping in mind all three conditions extracted from the notifications for the taxability of the products. There is clarity on two conditions i.e. Product is frozen and branded, However Advance Ruling is requested on the Questi....
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....lood, fish, crustaceans or molluses, not elsewhere specified." 11.5 Thus, under the old Central Excise Tariff, prepared/ preserved food put up in 'unit container' and ordinarily intended for sale were exigible for excise duty. Thus, there was a twin requirement viz. goods being put up in 'unit container' and secondly, they should have ordinarily been intended for sale. 11.6 The expression 'unit container' was not defined in the old Central Excise Tariff but instructions in this regard were issued by Central Excise Board's letter M.F (D.R.I.) No. B/5/1/69-CX-I, dated 3-4-1969, clarifying the meaning of the term 'unit container' as under: "Meaning of Unit Containers. The expression 'unit container' used in Tariff item IB means a container in which prepared or preserved food is intended to be sold by the manufacturer. It may be a small container like tin, can, box, jar, bottle or bag in which product is sold by retail or it may be a large container like drum, barrel, cannister in which the product is packed for sale to other manufacturer or dealers. In short 'unit container' means a container, whether large or small, designed to hold a pre -det....
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....articular quantity. It is also a matter of common knowledge and experience that in such cases the container is normally nor returnable, and in many cases not durable." 11.8 A perusal of the observations of the CEGAT in the above case reveals that *unit container' is to be interpreted to mean a container that holds a predetermined quantity which is clearly indicated and is standardized i.e. it is standardized for a particular commodity like packages of 1kg, 100 ml, 200 ml, etc. The said conclusion also follows from the meaning of the term 'unit'. 11.9 Under the new Central Excise Tariff Act, 1985 (which replaces the old Tariff) also, certain products cleared and manufactured and put up in a 'unit container' were exigible to excise duty. The term unit container' under the New Central Excise Tariff Act, 1985 was defined to mean as under: "Container whether large or small for examples, tin, can, box, jar, bottle, bag or carton, drum, barrel or canister) designed to hold u pre-determined quantity or number." 11.10 In the context of new Central Excise Tariff Act, 1 985, in the case of Agro Foods Punjab Ltd. v. Collector of Central Excise, 1....
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....er' have to be Interpreted in such a manner so as to include not only small but also large containers. • That the sale of pasta products in the big bags knows as LDPE and HDPE cannot be said to be a sale of bulk in loose as these bags contained fixed quantity of the product for sale to the distributor/customers. Similar view was observed in the decision of the Tribunal in the case of Surya Agrooils Ltd. vs. CCE [2005 (188) E.L.T 97 (Tri.- Del.) = 2005 (5) TMI 129 - CESTAT, NEW DELHI ] which was later affirmed by the Hon'ble Supreme Court in 2006 (199) ELT A183 = 2006 (4) TMI 554 - SUPREME COURT . 11.16 Explanation appended to the IGST notification prescribing rates and notification granting exemption defines 'Unit container' similar to the definition under the old and new Central Excise Tariff is provided as under: " The phase 'unit container' means a package, whether large or small (For example, tin, can, box, jar, bottle, bag, or carton, drum, barrel, or canister) designed to hold a predetermined quantity or number, which is indicated on such package." 12. In view where of the judicial principles evolved for determination of 'unit c....
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....will not be applicable to the present case in as much as in the said case the HDPE bag contained LDPE bags of 10Kgs each, which were standardized whereas in the present case there is no fixed quantity of mutton in the LDPE bags, it can weigh 7 kg or 6.5 kg i.e. the said HDPE bags cannot be said to be holding a predetermined uniform quantity. In a nutshell, the bags in the present case do not hold a pre-determined quantity of meat, It is clear from the above factual matrix that carcasses packed in the LDPE sacks and HDPE sacks would be in different weight and sizes. Further, we are also given to understand that there is no fixed quantity and size in which these carcasses are dispatched to the Army against tender. The said dispatches are made on the basis of the actual weight of the frozen carcasses. Furthermore, the consideration is charged by Ahmednagar District Goat Rearing and Processing from the Army on the basis of the weight. Therefore, there is no doubt that the said LDPE/ HDPE bags i.e., primary as well as secondary packing do not qualify as unit container. (iii) Further, the meat in the present case is sold by the Ahmednagar District Goat Rearing and Processing on the ba....
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....which leads to specific weight (units). As per photographs obtained from tax payer, the weight of whole (sheep/goat) animal carcass is mentioned on every HDPE bag. As per explanation appended to notification 2/2017 - Integrated Tax (Rate) dated 28th June 2017 the phrase "unit container" means a package, whether large or small (for example, tin, can, box, jar, bottle, bag, or carton, drum, barrel, or canister) designed to hold a per-determined quantity or number, which is indicated on such package, which is self- explanatory. Whether the products as mentioned in query I shall be taxable under GST as per entry no. 4 of schedule II of the Notification no. 1/2017- integrated Tax (Rate) dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 1 of schedule I of the Notification No. 43/2017-lntegrated Tax (Rate) dated 14th November 2017 or fall under exemption list as per entry no. 10 of Notification no. 2/2017-lntegrated Tax (Rate) New Delhi dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 9 of the Notification No. 44/2017-lntegrated Tax (Rate) dated 14 November 2017 Officer Comments :-Yes -The products as mentioned in query 1 shall be ....
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....ntity or number, which is indicated on such package. The present product, as informed by the applicant, is Sheep/ goat meat in carcass form i.e. the whole animal carcass in its natural shape. It is supplied in frozen state in LDPE and HDPE bags. The above definition covers a package and the examples of such a package include a 'bag'. The aspects which now need to be seen are - • Whether the bag is designed to hold a predetermined quantity or number? • Whether the quantity or number is indicated on the bag? The applicant supplies the above product to the Army. We were provided with photo copies of the bags in which the product is supplied. The facts as informed are thus - • The 'Acceptance of Tender' document copies as supplied by the applicant reveal thus - CONTRACT FOR SUPPLY OF MEAT DRESSED CHILLED/FROZEN AT SUKNA FOR THE PERIOD FROM 01 APR 2017 TO 31 MAR 2018 (BOTH DAYS INCLUSIVE) ON FORTNIGHTLY PAYMENT BASIS Rates tendered for delivery at Supply Point ASC Sukna as and when ordered by OC Supply Point ASC, Sukna or his authorised representative:- Item No Articles/Services to be supplied Unit Quan....
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....t of Meat Dressed Chilled/Frozen supplied, followed by the details of all levies & taxes paid by you separately. Contract Operating Officer will make 95% payment of the total billed amount including taxes through electronic transfer :- (a) 95% of Basic Cost. Contract Operating Officer will make the payment after verifying the quantity supplied. (b) 95% of Taxes and Lewes. 95% payment of the taxes and levies will only be paid by the Contract Operating Officer upon production of tax deposit receipts and certificates from Chartered Accountant of your firm and reconciliation with all connected documents." f. In the invoice raised on the Army, there is mention of the total number of bags supplied and the total weight contained in these bags on the basis of the statement in point e above. A perusal of all above makes us infer thus- • The phrase "unit container" is defined as "means a package, whether large or small (for example, tin, can, box, jar, bottle, bag, or carton, drum, barrel, or canister) designed to hold a predetermined quantity or number, which is indicated on such package." • Definition of 'unit container'....
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....on. The facts of the instant case before us being distinct, we wish not to deliberate on the arguments and case laws as put forth by the applicant. Question 2 Whether the products as mentioned in query 1 shall be taxable under GST as per entry no. 4 of schedule II of the notification no. 1/2017- Integrated Tax (Rate) dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 1 of schedule I of the Notification No. 43/2017-lntegrated Tax (Rate) dated 14^th November 2017 or fall under exemption list as per entry no 10 of Notification No. 2/2017-lntegrated Tax Rate New Delhi dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 9 of the Notification No. 44/2017- Integrated Tax (Rate) dated 14th November 2017? To answer the above question, we look at the schedule entries as have been contended to be applicable. Let us reproduce the same as under - Notification S. No. Chapter /heading/ Sub-heading / Tariff item Description of Goods Period Tax rate Notification no. 1/2017 Integrated Tax (Rate) dated 28th June 2017 4 (Schedule II) 02041 Meat of sheep or goats, frozen and put up in unit containe....
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....alifies as a product put up in "unit container". Now, the Schedule entry no.9 does not cover frozen meat of sheep or goats when put up in unit container and bearing a brand name. 2. Schedule entry 1 of the Notification No.1-Integrated Tax (Rate) also has conditions regarding unit unit container and brand name. The applicant has stated that there is clarity on two conditions i.e. product is frozen and branded. We have seen above that the supply by the applicant qualifies as a product put up in "unit container". Now, the Schedule entry no.1 covers frozen meat of sheep or goats when put up in unit container and bearing a brand name. 3. In view thereof, the impugned product would be covered by the schedule entry 1 of the Notification No.1-Integrated Tax (Rate) from 14-11-2017 onwards. 06. In view Of the deliberations as held hereinabove, we pass the order as follows : ORDER (under clause (xviii) of section 20 of the Integrated Goods and Services Tax Act, 2017 read with section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) NO.G....