TaxTMI 
TaxTMI 
2018 (10) TMI 1244
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....nder 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 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 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 slaughtering & processing of Sheep / Goat meat and....
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....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 (b) bearing a bmnd name on which actionable claim or enforceable right in court of law is available [Other than those wh....
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....ES 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 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....
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....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 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]"; 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....
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.... 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' 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 1B 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, ca....
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....anufacturer, 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, 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 eligible 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, ba....
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.... 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 Surya Agro oils Ltd. Vs. CCE [2005 (188) ELT 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 phrase "unit container" means a package, whether large or small (....
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....erein 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 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 Monrovia Agro Foods 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 mea....
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....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 payer cannot be construed as a product put up in "unit container" as the package i.e. LOPE bags and HDPE bags even though be designed to hold a pre-determined quantity/weight, the same is not indicated on such packages nor the same are numbered. Further on being asked to clarify the weighment procedure adopted by the taxpayer, the taxpayer has submitted that the packed material is weighed as per demand and loaded in refrigerated vehicle for dispatch. For example if Anny Demand is 500kgs then the total is weighed and no of bags are noted an....
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....he 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 to fall under Entry No: 9 of Notification No: 44/2017-Integrated Tax (Rate) dated 14.11.2017 as the product is not put in unit containers and not bears a registered brand name. As per the Oral directions issued by the Hon'ble Advance Ruling Authority during the course of hearing held on to verify and report whether the applicant M/S Monrovia Leasing Finance Pvt. Ltd was using any brand name on the goods on which the Advance Ruling is sought for, this office had deputed the Jurisdictional Range Superintendent Shri Rajesh Surendran, to physically verify the goods and r....
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....s 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 Company. Applicant is engaged in slaughtering and processing of sheep/ goat meat and supplies these products to Army against tender. Applicant supplies to Army sheep/goat meat in carcass form i.e. the whole animal carcass in frozen state. Applicant further submit that the carcass would be in different weight and sizes and there is no fix quantity and size in which these carcasses are dispatched to the Army. The said dispatches are made on the basis of weight of frozen carcass. Furthermore the consideration is charged on the basis of weight. As regard packaging and dispatch pattern it is su....
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....ng 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) which is not sealed and no weight is mentioned on such LDPE bag. Thereafter, such LDPE bags are put in HDPE bag (Secondary Packing) and the weight of the Carcass is mentioned by marker. Each bag bears the different weight as meat carcass can't be uniform. There is no mention/ marking of number of carcass packed in each bag. Each Frozen carcass is put in LDPE bag (Primary Packing) which is not sealed and no weight is mentioned on such LDPE bags. Thereafter, generally one or two of such bags are put in HDPE bag(Secondary Packing) There is not printing or marking or weight or number of carcass packed in such bag and t....
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....f 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 packaging. In this regard the applicant in the present case has submitted letter dated 28/05/2017 issued by Col. S. HQ Southern Command Pune with following declaration- "It is certified that chilled/frozen chicken/meat is supplied to the Army by various firms through Annual Contracts. As per order on the subject, the net weight / numbers of the item is not required to be mentioned on the packaging" Thus the issue before us is whether such supply is covered by the expressions 'unit container' as defined in the notifications mentioned. The expression 'unit container' as defined in the notification is as below: Explanation- for the purpose of this....
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....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 foregone voluntarily], subject to the conditions as in the ANNEXURE] 14-11-2017 Onwards 5% Notification no. 2/2017 Integrated Tax (Rate) dated 28th June 2017 10 0204 Meat of' sheep or goats, fresh, chilled or frozen [other than frozen and put up in unit container] 1-7-2017 TO 13-11-2017 NIL Deleted w.e.f 14.11.2017 9 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 rig....