TaxTMI 
TaxTMI 
2018 (10) TMI 1244
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....as mentioned in query 1 shall be taxable under GST as per entry no. 4 of schedule II of the Notification no. 1/2017-lntegrated Tax (Rate) dated 28th June 2017 up to 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 28^th June 2017 up to 14th November 2017 and thereafter as per entry no. 9 of the Notification No. 44/2017-lntegrated 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 specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act / MGST Act would be mentioned as being under the "GST Act". 02. FACTS AND CONTENTION - AS PER THE APPLICANT- 1) M/S Monrovia Agro Foods is engaged in sl....
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....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) wide Notification No. 43/2017 - Integrated Tax (Rate) dated 14th November 2017, w.e.f. 15th November 2017 onwards, the following entry inserted which relates to taxability on subject products. a. Schedule I of the Notification No 43/2017-lntegrated Tax (Rate) dated 14th November 2017 deals with the products which are subject to 5 % GST and entry No 1 which pertain to sheep/ Goat meat respectively are provided 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....
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....: Nil 0204 41 00 - Carcasses and half-carcasses Nil 0204 42 00 - Other cuts with bone in Nil 0204 43 00 - Boneless Nil 0204 50 00 - Meat of goats Nil 1601 00 00 SAUSAGES AND SIMILAR PRODUCTS, OF MEAT, MEAT OFFAL OR BLOOD; FOOD PREPARATIONS BASED ON THESE PRODUCTS 6% 0104 LIVE SHEEP AND GOATS 0104 10 - Sheep: 0104 10 10 - Sheep including lamb for breeding purpose 0104 10 90 - 0104 10 90 0104 20 00 - Goats (c) Details of benefit of notification of Central Excise if any availed - NA. (6) (a) Classification of Service / Services as applicable (b) Rate / Rates of Service Tax as applicable to services provided Sr. No. Classification of Services Accounting Code Rate of Tax 1. Manpower Recruitment/ Supply agency service 00440060 15% 2. Storage and warehousing services 00440193 15% Statement containing the Applicant Interpretation of Law and submission on issue on which Advance Ruling is sought 1. Section 9 of the Central Goods and Services Tax Act 2017 "9. (1) Subject to the provisions of sub-section (2), there....
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.... 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 ANNEXURE I]"; 6. A reading of the above-mentioned entries would reveal that the item mentioned in Tariff Heading 0204 would be eligible to tax @ 5% if are put up in a 'unit container' and bear a brand name. 7. Correspondingly, in exercise of the powers conferred by sub-section (1) of section 6 of the Integrated Goods and Service Tax Act, 2017, the Central Government via Notification No.44/2017-Integrated Tax (Rate) New Delhi dated 14.11.2017 has exempted, inter-State supplies of goods, from the whole of the integrated tax leviable thereon. Relevant extract is reproduced 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 unit 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 a....
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....n this background, let us analyses the meaning & scope of the term 'unit container'. 11.3 The interpretation of the expression 'unit container' has been a vexed issue in the context of Central Excise law as under the excise regime prevailing prior to GST. Food products put up on a 'unit container' were liable to excise duty. Therefore, in this regard, it is important to study the provisions under the Old law and interpretation adopted by the Courts. 11.4 The expression 'unit container' was first used in Tariff Item No 1B in the old Central Excise Tariff 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 offal's, animal blood, fish, crustaceans or moll uses, 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 eligible 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' w....
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....owledge 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 contain a specific and clearly marked quantity of the goods. The quantity may vary according to the product and the manufacturer, but even then there are many standard quantities common to different manufacturers, such as 100 gms, 500 gms, 1 kg, 100 ml, 200 ml and 500 ml. Such products are sold in what may appropriately be called "unit containers" which can conveniently contain that particular 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 containers" 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,....
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....ck weighing 20 kg each of Pasta was a 'unit container' or not. It is pertinent to note that the HDPE sack weighing 20kgs comprised of 2 LDPE bags weighing each and after putting the said LDPE bags in the HDPE sack, the HDPE sack was stitched and subsequently it was cleared as an HDPE. The tribunal opined as under. • There exists no logic to restrict the scope of the words 'unit container' only to small containers which must have predetermined capacity of 1/2/3/4/ kg., and carry full particulars of the product i.e., date of the manufacture, name of the manufacturer, trademark price, etc. If the intention of the legislature was to refer only to the small containers having predetermined capacity, it must have so provided specifically. Therefore, the words 'unit container' 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. 11.15 Similar view was observed in the decision of the Tribunal in the case of S....
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.... LDPE bags are not sealed. Even though the fact as to whether the bags are sealed or not is not decisive in determination whether a container is a 'unit container' or not, we are of the view that the fact that the LDPE bags are not sealed would militate against any contention raised by the department that the said container are designed to hold a pre-determined quantity. (ii) That in Surya Agro Oils Ltd. v. Commissioner of Central Excise, Indore, 2000 (116) E.LT. 514 = 1999 (11) TMI 264 - CEGAT, NEW DELHI, case wherein HDPE sack weighing 20 kg each of Pasta comprising of 2 LDPE bags weighing 10 kgs each was held to be a unit container 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 6.5kg 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 w....
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.... bags without mentioning the weight and one or two such LOPE bags further packed in HDPE bags being supplied to Army by applicant against tender shall qualify as product put up in "unit container". Comments: Attention is invited to Explanation (i) appearing in the Notification 01/2017 Integrated Tax (Rate) dated 28.06.2017, 02/2017-Integrated Tax (Rate) dated 28.06.2017 which is reproduced as under: 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. Thus it can be seen that the above referred Notifications has clearly brought out what a "unit container" means. If the submission made by the tax payer is taken on face value that they are engaged in supply of 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 HDPE bags without mentioning the weight, the goods supplied by the tax pay....
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....ax applicable, reference is made to the Entry No: 4 of Schedule-II in Notification no. 1/2017-lntegrated Tax (Rate) dated 28th June 2017 which is reproduced as under: Schedule II S. No. Chapter/Heading/Sub-heading/Tariff item Description of Goods 4. 0204 Meat of sheep or goats, frozen and put up in unit containers Accordingly the product attracts tax at the rate of12% if the same is put up in unit containers. Ongoing through the Explanation given in the notification and the comments given against Question no: 1 above, it appears the product is not put in unit containers and therefore appears not covered under Entry No: 4 of Schedule-Il in Notification no. 1/2017-lntegrated Tax (Rate) dated 28th June 2017 but will fall under Entry no. 10 of Notification No. 2/2017-lntegrated Tax (Rate) dated 28th June 2017 which is reproduced below, resulting into a supply on which whole tax thereon is also fully exempted. Schedule S.No. Chapter/Heading/Sub-heading/Tariff item Description of Goods 10 0204 Meat of sheep or goats, fresh, chilled or frozen [other than frozen and put up in unit container] Similarly from 15.11.2017 the said product appears ....
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....Surender Singh, Director appeared and made contentions as per details in their ARA. The jurisdictional officer, Sh. Rajesh Surendran, Suptt. Division- Baramati Pune - II Central GST Commissionerate appeared and made written submissions. The application was admitted and final Hearing was held on 24.07.2018, Sh. Ashok kumar Mishra, Advocate along with Sh. Surender Singh, Director appeared made written submissions. The jurisdictional officer, Sh. Rajesh Surendran, Suptt. Division- Baramati, Pune - II Central GST Commissionerate appeared and stated that they are making submissions with respect to verification part. 05. OBSERVATIONS We have perused the records on file and gone through the facts of the case and the submissions made by the applicant and the department. The written contentions was submitted by the applicant and jurisdictional officer are examined and considered, on this issue. The applicant is registered person under GST and is engaged in slaughtering and processing of sheep/ goat meat and supplies these products to army against tender. Monrovia Agro food is a division of Monrovia leasing and finance Pvt. Ltd. Pune. It is an ISO 22000 and HACCP Certified Compan....
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.... further held that impugned product will be covered by schedule entry 4 of the notification of 1/2017 - Integrated Tax (Rate) during the period 01/07/2017 to 13/11/2017 and schedule I of the said notification for the period from 14th November, 2017 onwards. Accordingly they were requested to state, similarities or as the case may be dissimilarities between the facts of this ruling and the present ARA application. Applicant has given comparative analysis of facts which are not denied by the jurisdictional officer. Comparative analysis of facts between M/S. Ahmednagar District Goat Rearing and Processing Co-operative Federation Ltd. and the applicant are as below: Facts Ahmednagar Goat Federation Monrovia Agro Foods Product and HSN Code Frozen Goat/ Sheep-0204 Frozen Goat/ Sheep-0204 Period Relevant to Application for Advance Ruling 1st July, 2017 till Present and going forward 1st April, 2018 till Present and going forward Product Supplied to Army Meat Frozen Goat/Sheep in whole carcass From April 2018 Onwards, Meat Frozen Goat/Sheep in whole carcass. Packaging and Marking Pattern Each Frozen carcass is put in LDPE bag (Primary Packing....
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....factory we find that the facts of the present case are partly different from the facts in the case of M/s. Ahmednagar District Goat Rearing and Processing Co-operative Federation Ltd. To summarize the facts we find that the period in case of ARA ruling is from 01/07/ 2017 till present and going forward whereas in case of appellant it is from 01/04/2018 till present and going forward. The product supplied in both the case is same i.e. frozen goats and sheep carcass. However in respect of packaging of the product supplied which is a crucial aspect with respect to tax liability being there or not, we find that there is a part difference. In case of applicant there is no printing or marking of weight or number of carcass packed in such bags and there is no mentioning of brand name. Further as per the tender pursuant to which impugned supplies are to take place there is no requirement from Army regarding mentioning weight or number on the packaging material. Whereas in case of M/S. Ahmednagar District Goat Rearing and Processing Co-operative Federation Ltd packaging conditions mentioned in Terms and Conditions "RFP"given by Army required mentioning of actual weight on the secondary pack....
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....7-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 up to 14th November 2017 and thereafter as per entry no. 9 of the Notification No. 44/2017-lntegrated Tax (Rate) dated 14th November 2017? Before we answer this question we have a look at the schedule entries that would be applicable in the present case. 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 containers 1-2017 TO 13-11-2017 12% Deleted w.e.f 14.11.2017 1 (Schedule I) 0202, 0203, 0204, 0205, 0206, 0207, 0208, 0209, 0210 All goods [other than fresh or chilled], and put up in unit container and, - (a) bearing a registered brand name; or (b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available (other than those where any actionable claim or enforceable right in respect of such brand name has been....