TaxTMI 
TaxTMI 
2018 (9) TMI 1184
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....on Ltd. (herein after referred to as the "Appellant") against the Advance Ruling No. GST-ARA-21/2017/B-27 dtd. 21.04.2018. BRIEF FACTS OF THE CASE A) The appellant is engaged in slaughtering & processing of Sheep/Goat meat and supplies these products to Army against tenders issued by the Indian Army. B) The appellant supplies to the Army, Sheep/ Goat meat in carcass form i.e. the whole animal carcass in its natural shape in frozen state. The carcass would be in different weight & sizes as no animal would have uniform weight and size as that of the other. Further, there is no fixed quantity & size in which these carcasses are dispatched to Army, as the said dispatches are made on the basis of the weight of the frozen carcass which varies in every case, depending upon the weight of the animal's carcass packed in different consignments. Further, the consideration also is charged on the basis of weight of the meat supplied which is not uniform and not pre-determined in each consignment. The packaging and the marketing pattern on illustrative basis is explained as below:- Mutton: - Each frozen carcass is put in LDPE Bag (Primary Packing) which is not sealed & no weight is me....
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....meat respectively is reproduced as below: Schedule I S. No. Chapter/Heading/Sub-heading Tariff item Description of Goods 1 0204 All goods (other than fresh or chilled) and put up in unit container and, (a) bearing a registered brand name; or a)) bearing a brand name on which actionable claim or enforceable right in court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntarily], subject to conditions as in the ANEXURE 1] Therefore with the present amendment dated 14.11.2017, the rate of tax was reduced from 12% to 5% on the subject products and another condition was introduced so as to be exigible to tax that the product should be branded. Further, Notification No. 44/2017-lntegrated Tax (Rate) dated 14.11.2017 exempted inter-state supplies of goods from the whole of the integrated tax leviable thereon and the relevant entry is reproduced as below: Schedule S.No. Chapter/ Heading/Sub-heading Tariff item Description of Goods 8 0204 All goods, fresh or chilled 9 0204 All goods (other than fresh or chilled) other than those put up in u....
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....d Tax (Rate) dated 14.11.2017. G). Being aggrieved by the orders of the Maharashtra Authority for Advance Ruling, the appellant has preferred the present appeal before this appellate authority on the following grounds which are without prejudice to each other. GROUNDS OF APPEAL 1. The authority for advance ruling has grossly erred in concluding that the clearances of the appellant are in unit containers, which is contrary to the judicial discipline on the subject and is in utter mis-interpretation of the definition of unit container as given in the statute on the subject. Here the appellant craves leave to reproduce the definition of unit container as provided in notification 1/2017- Integrated Tax (Rate) dated 28/06/2017 as amended. Explanation. - For the purposes of this Schedule, - (i) 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 predetermined quantity or number, which is indicated on such package. Now diligent perusal of the above definition clearly brings out beyond iota of doubt that the unit container defined here is one which....
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....true conclusion. The expression 'unit container' was first used in Tariff item. No 1B in the old Central Excise Tariff which reads as under: "1B Prepared or preserved foods put up in unit containers and ordinarily intended for sale, including preparations of vegetables, fruit milk cereals, flour, starch, birds, eggs, meat offals, animal blood, fish, crustacean or molluses, not elsewhere specified." Thus, under the old Central Excise Tariff, prepared/ preserved food put up in 'unit container' and ordinarily intended for sale were exigible to central excise duty. Therefore there were twin requirements to be satisfied for the levy of duty, firstly the goods should be put up in unit container and secondly, they should have ordinarily been intended for sale. The expression "unit container" was not defined in the old Central Excise Tariff but instructions in this regard were issued by Central Board of Excise and Customs vide letter M.F. (D.R.I.) No. B/5/1169-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 1B means a container in which prepared or preserved ....
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.... of cardboard or aluminium foil. For obvious reasons the container has to be just large enough to hold the predetermined quantity of the contents. To pack half a litre of fruit syrup in a bottle which can hold one litre would not only be wasteful but would also subject the contents unnecessary movement, perhaps with a loss of quality. Further, it would arouse doubts in the customer that he is being cheated. It can therefore be very well understood that no intelligent manufacturer would pack prepared or preserved foods (or indeed any similar product of common consumer use) in a container which is not full or practically so. Nor would a prudent customer readily buy a product in a container which does not appear to be full. 46. The above observations on the methods of marketing of common consumer products, do not require any special knowledge because they are a matter of common experience. The tariff item and the Finance Ministry's instructions are consistent with the general experience and practice as mentioned above. General experience would certainly show that prepared and preserved foods and the like, as they are ordinarily sold in the market, are packed in containers which con....
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....apacity being supplied to manufacturers of tomato ketchup was not a 'unit container'. 5. However, in the ease of CCE v Simba Chips, 1997 (96) E.L.T. 381 (Tribunal), = 1997 (7) TMI 330 - CEGAT, MUMBAI the Tribunal held that the fact that packets did not bear indication of the weight of the goods has no significance to determine whether it is a l unit container' or not so long as the packet contained a predetermined quantity. Therefore, the fact that that container did not bear indication of weight of goods is no significance to determine if a container is a 'unit container' or not so long as the said container contained a predetermined quantity. That similar view was expressed by the Hon'ble Tribunal in the case of CCE Vs. Shalimar Super Foods [2007 (210) ELT 695 (Tri.-Mumbai), = 2006 (11) TMI 56 - CESTAT, MUMBAI wherein the tribunal held that meat articles packed in loose plastic bags which were not in uniform quantities cannot be held to be a unit container. The bags in this case were not sealed similar to the LDPE bags in the present case and weight of the animal carcass is also varied in each and every consignment of ours. 6. The explanation to the notification 01/2017 Int....
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....n has to be interpreted based on the language used therein. The Supreme Court in the case of Hemraj Gordhandas Vs. H.H.Dave, Asst. Collector of Central Excise & Customs [1978(2)ELT J 350 (SC)] = 1968 (9) TMI 112 - SUPREME COURT OF INDIA laid down the principle as follows:- "It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority". The same view was re-iterated by the Hon'ble Apex Court in the case of: Gujarat State Fertilizers Co. v/s C.C.E. 1997 (91) E.L.T. 3 (S.C.) = 1997 (2) TMI 105 - SUPREME COURT OF INDIA wherein it was held that - "an exemption notification has to be interpreted by taking into consideration, the language of the notification which has to be given its due effect. Supposed object and purpose of the exemption has to be culled out from the said language." Therefore keeping with the ratio of the law laid down by the judgments r....
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....ch that if the said supplies are in unit container than same are chargeable to GST @12% for the period from 1st July 2017 to 14th November 2017 and @5% thereafter (provided they bear brand for this period). The issue of branding of the said goods is not before us as the appellant had sought advance ruling only on the issue of 'Unit Container' and they are in appeal for the same. 11. We observe that the definition of Unit Container is provided under the CGST Act as an explanation to the exemption Notification and we do not see any reason to resort to the similar definitions available in other Acts/Statutes. So, we will concentrate and restrict our scope to the definition available under the CGST Act which is the subject matter of this appeal. In terms of the said definition, we observe that for any package (irrespective of size, nature and shape) to be a unit container, the following two criteria need to be fulfilled- (i). It should be designed to hold a pre-determined quantity or number. (ii). That pre-determined quantity or number should be indicated on the package. 12. We have carefully gone through the submissions made by the appellant and also the tender of suppl....
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.... 13. The appellant has also submitted that not only the quantity(weight) even the number of carcass is not pre determined as sometimes there is only one carcass inside the HDPE bag and some other times these are two. AAR, Maharashtra, has also not ruled that the quantity in the package is pre-determined. They, however, observed that the number is pre-determined which is known to the Army that each HDPE bag will contain two LDPE bags. This observation of AAR is contrary to the wordings of question No. 1 posed before them which clearly indicates that 'one or two such LDPE bags further packed in HDPE bags'. As claimed by the appellant, even the number is not pre-determined as the carcass may be one or two depending upon the size of the animal but it can never be more than two. Regarding the observation of AAR that Army is aware about the pre-determined number, we have seen that Army is not concerned about the number as they have neither floated tender on the basis of number nor are they making payment to appellant based on numbers. The number of carcasses is of no importance to the Army as their contract is based on weight. Also, the indication of weight of two carcasses or one carcas....