TaxTMI 
TaxTMI 
2019 (11) TMI 397
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Advance Ruling No. GST-ARA-126/2018-19/B-29 dated 19.03.2019 = 2019 (4) TMI 808 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA. Brief Facts of the case A. M/s Arihant Enterprises is a partnership firm with GSTIN number 27AAUFA0033D1ZT and registered address at Flat No. 2, Ajit Building, Mahavir Park Society, Aundh, Pune Maharashtra-411007.They are inter-alia engaged in the business of reselling of Ice Cream from its Ice cream parlour situated in Aurangabad. They are supplied with the said goods from its sole manufacturer, M/s. Kamaths Ourtimes Icecreams Pvt Ltd ("The Franchisor"). They exclusively deal in the Naturals brand Ice cream manufactured by "the franchisor". M/s Arihant Enterprises had made an application GST-ARA, Application No. 126 dated 25.02.2019 for advance ruling before the Maharashtra Authority for Advance Ruling, GST Bhavan, 8th floor, Fl-Wing, Mazgaon Mumbai-400010 on the issue of whether the supply of Ice Cream made by it from its retail outlet would be treated as supply of "goods" or supply of "service" or a " composite supply". In this context, after due consideration of various submissions made before it, The Hon'ble Maharashtra Authority For Advance Rulin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ST evasion cases against each franchisee i.e. Natural Ice cream outlets, that one of the key persons from each premise was examined under Section 70 of the CGST Act, 2017 on the spot and his statement was recorded, that the investigations carried out so far appears to reveal that franchisees of M/s KOTI have evaded GST amounting more than Rs. 40.00 Crs on two aspects (a) by way of misclassifying their activity as supply of goods under HSN 2105 instead of its correct classification as supply of service under SAC 9963 (b) Suppression of supplies made and GST evaded thereon, that accordingly, investigations to detect cases of evasion of GST by franchisees of M/s KOTI located all over India, including M/s Arihant Enterprises, Aurangabad having its registered office in Pune were in progress covering one by one. 3. That in the meantime, based on an application dated 25.02.2019 for Advance Ruling, made by M/s Arihant Enterprises, the Hon'ble Maharashtra Authority For Advance Ruling issued an order of Advance Ruling No. GST-ARA-126/2018-19/B-29 dated 19.03.2019 = 2019 (4) TMI 808 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA, wherein, it is inter-alia held that the supply of ice cream by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd with due oral discussions with Directors of KOTI, it was taken decision to file an application before the ARA through a common consultant Mr Chirag Mehta but the relevant details of these investigations initiated by DGGI was not incorporated in their application before the ARA. The relevant para of the statement is reproduced herein under for ready reference. A para from Statement dated 10.05.2019 of Mr Virendra Mehta; "On being asked about the application dated 25.02.2019 made by M/s Arihant Enterprises before Advance Ruling Authority, I undertake to produce the same by 13.05.2019. In the light of franchisee agreement with KOTI and with due consideration to its terms and conditions, classification of the product and taxation thereon is decided by KOTI, the franchisor, by way of supplying the spectrum software for billing to your firm, which is mandatorily to be used by each franchisee, under these circumstances on being asked as to how M/s Arihant Enterprises had filed an application for advance ruling on its own, I state that with due oral discussion with directors of KOTI, it was taken decision to file an application before Advance Ruling Authority through a common lega....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection as per proviso to Section 98(2) of the CGST Act and accordingly, would have rejected application being non-maintainable. It therefore appears that the present Advance Ruling has been obtained by way of suppressing the material facts from the Advance Ruling Authority. 7. It is also submitted that some of the major competitors in the field such as ice cream brands under trade names "Gelato", "Baskin Robbins", "Cafe Chokolade" etc have rightly classified their activity of serving of Ice Cream at parlour ends as 'supply of services' under HSN Code 996331 of the GST tariff of India and they have paid [email protected]% and [email protected]% or IGST @5% as the case may be, w.e.f. 15.11.2017 by following the amending Notification No. 46/2017-Central Tax (Rate) dated 14.11.2017. An explanation to Notification No. 46/2017-Central Tax (Rate) dated 14.11.2017 reads as under: "For the removal of doubt, it is hereby clarified that, supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or drink, where such supply or service is for cash, deferred payment or other valuable consideration, provided by resta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sure successful advertisement and sales promotion/marketing of Natural ice cream effected thereby. Thus, franchisees including M/s Arihant Enterprises have charged and recovered money in the name of GST @ 18 % instead of 5% without ITC benefits from their customers. Thus, it is a case of recovery of tax in excess from the customers but not being deposited in to government account which is not legal and is liable to be recovered 9. In view of above legal position, it appears that the activity of ice cream parlours of the franchisees of M/s KOTI are covered under the explanation to the said notification which categorically classify the same as service under SAC 9963 and shall attract Central Tax @ 2.5% without any Input Tax Credit. Accordingly, the subject Order of Advance Ruling appears to be not just and proper as it can't sustain on merits. 10. As per Longman Dictionary -what is ice cream parlour: 'a restaurant that only sells ice cream'. As per Wikipedia- Ice cream parlours are restaurants that sell ice cream. 11. The ratio of the Advance Ruling No. KAR ADRG 21/2018 dated 21st August, 2018 = 2018 (9) TMI 1042 - AUTHORITY FOR ADVANCE RULINGS, KARNATAKA given in the cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsider whether the impugned service would fall under the category of Outdoor Catering. The term 'Outdoor Catering' was defined under Section 65(76)(a) of the erstwhile Finance Act, 1994 as "Outdoor caterer means a caterer engaged in providing service in connection with catering at place other than his own but including a place provided by way of tenancy or otherwise by the person receiving such service". On considering the common parlance meaning of 'Outdoor Catering' and its above definition for Service Tax, we come to the conclusion that the supply of food, soft drinks and snacks sold in the Food Court or Snack Bar of the Applicant cannot by any stretch of imagination, be treated as a part of outdoor catering. In view of the facts and circumstances, we are of the view that the services provided by the Applicant in Snack Bar would be classifiable under SAC 9963 and chargeable to GST @ 5% (CGST @ 2.5% + SGST @ 2.5%), provided they fulfil the conditions laid down under Notification No. 46/2017-Central Tax (Rate) and corresponding notifications issued under MGST Act, 2017." 13. The subject case is not simply an act of resale of ice cream purchased from KOTI. The transactions betwe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the franchise agreements are only to the effect of giving the franchisee the non-exclusive right to use. 15. It therefore appears that the transaction between franchisor and applicant was actually not a real sale transaction but it is a transfer of Ice cream from factory of the franchisor to the retail ice cream parlours under the KOTI scheme of franchise agreement so as to sell/serve finally to unrelated buyers on behalf of KOTI. It is therefore pertinent to note that the various supply services offered by the franchisees to the franchisor and various fees payable by the franchisor to franchisee applicant thereon is adjusted along with the franchise fees not collected by the franchisor but hidden under the scheme of things, in the final sale price of Ice cream so fixed by the franchisor. The entire activities of franchisee applicant are therefore to be considered as supply of service. It therefore follows that the applicant's contention that its activity is merely a resale of Ice Cream / supply of goods and not a supply of service is incorrect and not acceptable and accordingly the subject order of ARA upholding the views of the applicant is liable to be rejected as it is not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ling For Goods and Service Tax, Air India Building, Nariman Point, Mumbai-400 021 may be pleased to consider the prayer of the applicant in granting the condonation for delay of only 25 days in filing before this Hon'ble Maharashtra Appellate Authority for Advance Ruling For Goods and Service Tax. Air India Building, Nariman Point, Mumbai-400 021 for justice and equity. (iv) that the facts and circumstances elucidated in the present appeal involve the question of "substantial justice", where gross delay of 25 days only, deserves to be condoned in the overall interest of justice. On the other hand, if condoning the delay being denied it would seriously undermine the cause of justice, resulting into miscarriage of justice for the appellant. 18. Thus, in view of the above grounds of appeal and the grounds mentioned in the application for the condonation of the delay in filing of the appeal under consideration, it was prayed by the Appellant:- (i) that the delay in filing of appeal may be condoned; (ii) that the appeal may be allowed and the order of advance ruling Order No. GST-ARA-126/2018-19/B-29 dated 19.03.2019 = 2019 (4) TMI 808 - AUTHORITY FOR ADVAN....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aphs, each of the above revenue streams have been described in detail. 25.1 Sale of ice-creams in retail packs: The respondent's majority sales revenue generates from this mode of selling. The ice-cream is sold as 500 grams retail packs. The sales mainly consist of sale of party packs or popularly Known as "Tubs". These are packed in plastic containers bearing the details of product including maximum retail price (MRP) of the product. The details of the product are printed on the packs in accordance with the provisions of the Legal Metrology Act, 2009. A pictorial representation of the pack is reproduced here under: india 25.2 Sale of ice-cream by way-of-scoops: Under this method, the ice-cream scoops are sold to the customers who wish to consume Ice-creams on a take-away basis. The franchisor supplies Ice-creams to the respondent in a wholesale pack to sell the same in scoops. These wholesale packs are emptied in steel containers at the outlet. Thereafter, the ice-creams are sold over the counter and supplied in scoops in paper cups, regular cones or waffle cones. Further, at times the customer prefers more than one flavour of ice cream in different combinations com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the customer. He either waits within or outside the store or takes it away as the case may be. Within the store/shop, there are a few tables/chairs/benches for customers to sit, while waiting. It may be noted that the ice creams are sold by the respondent over the counter. There is no serving of ice cream by the respondent. 27. The respondent was not sure about the applicability of the rate of GST on the said sale in as much as the industry was divided on the said issue. In order to avoid any controversy and litigation in future, the respondent has filed an application before the Advance Ruling Authority, Mumbai vide Application No. 126 on 25.02.2019. 28. The said application was filed for seeking advance ruling in following questions:- a) Whether supply of ice-cream by the respondent from its retail outlets would be treated as supply of "goods" or supply of "service" or a "composite supply" and subject to GST accordingly. b) Whether the supply, not being a composite supply, would be treated as supply of service in terms of entry 6(b) of Schedule II, attached to the CGST Act, 2017 and leviable to CGST @ 2.5% in terms of Notification No.11/2017 as amended ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appellant-department by the Deputy Director, DGGI, Pune Zonal Unit vide letter dated 14.05.2019 and accordingly, the department has taken considerable time to decide whether the appeal is required to be filed or not. The appellant-department further stated that due to the nuances to the newly rolled out GST law also caused a delay in filing the present appeal. 32.2 The respondent submits that the above reasoning of the appellant-department is vague and absurd for the reasons stated infra. (i) First, Section 100 of the CGST Act, 2017 speaks about the filing of appeal to Appellate Authority formed under section 99 of the CGST, 2017.- "99. Appellate Authority for Advance Ruling - Subject to the provisions of this Chapter, for the purposes of this Act, the Appellate Authority for Advance Ruling constituted under the provisions of a State Goods and Services Tax Act or a Union Territory Goods and Services Tax Act shall be deemed to be the Appellate Authority in respect of that State or Union territory. 100. Appeal to Appellate Authority- The concerned officer, the jurisdictional officer or an applicant aggrieved by any advance ruling pronounce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. (iv) Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the appellant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ces, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13. In our view, it is the right time to inform oil the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of vari....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g to quash the advance ruling order holding it void ab-initio in terms of section 104 of the act, the Respondent submits that the above mentioned contention of the appellant-department is without any logic, basis and reasoning. It is wholly perverse. It is malafide. (ii) At the outset, the respondent submitted that the department referred to letter F. No.DGI/PZU/Gr'C'/AAR -Arihant/40/2019 dated 14.05.2019 and 17.05.2019 written by the DGGI to the appellant. Copies of the said letters have not been provided to the respondent, if the same have been referred to in the grounds of appeal, copies of the same should have been enclosed, failure to do so, vitiates the proceedings. It is not known what are the contents of the said letters and why and how the DGGI is directing the department to file the present appeal. What interest has the DGGI got in the present appeal? Under which provision of law and under which authority, the DGGI is communicating with the appellant. Under which capacity, the DGGI (being an investigating body) is influencing the decision-making process. The present appeal is motivated and lacks bonafide. Hence, on this count alone, the present appeal is liable to be r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....allenge in the appeal before the Appellate authority. Hence, the present appeal is totally misconceived and mis-directed. The appeal cannot be maintained on such a ground. (v) If such appeals are allowed to be entertained on a ground that the applicant is guilty of fraud, suppression of material facts or misrepresentation of facts, then the provisions of section 104 would become redundant or otiose. There would be no meaning of section 104 as every such point can be raised in appeal. Such an interpretation would be absurd and hence, needs to be avoided. (vi) The legislature is a perfect legislative body. It is presumed to know all the laws when it enacts any particular legislation. In Union of India VS.Hansoli Devi reported at (2002) 7 SCC 273 = 2002 (9) TMI 799 - SUPREME COURT, the Hon'ble Supreme Court has observed that the legislature never wastes it words or say anything in vain and a construction which attributes redundancy to legislation will not be accepted except for compelling reasons. (vii) In Sultana Begum Vs. Prem Chand Jain reported at (1997) SCC 373 = 1996 (12) TMI 388 - SUPREME COURT, at page 381, the Hon'ble Apex Court has held as under:- "............
X X X X Extracts X X X X
X X X X Extracts X X X X
....her clauses of the Act, so as, as far as possible to make a consistent enactment of the whole of the statute. A bare mechanical interpretation of words and application of a legislative intent is devoid of concept and purpose will reduce the most of the remedial and beneficent legislation to futility. To be literal in meaning is to see the skin and miss the soul words, phrases and rules occurring in a statute are to be read together and not in an isolated manner. The legislation never intends to give one from one hand and take away from other hand. Hence, the present appeal is not maintainable and deserves to be dismissed, in lamina. (x) There is yet another reason which supports the above submission of the respondent. The above provision section 104 would be applicable only in case where the applicant (assessee) is the appellant. The appellate authority would pass an order on the appeal of the appellant (assessee). Such an order can berecalled if the appellant (assessee) is guilty of fraud, suppression of material facts or misrepresentation of facts, It cannot be gainsaid that the revenue would be guilty of fraud, suppression of material facts or misrepresentation of facts. (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion that no inquiry/investigation was conducted against the present applicant by the DGGI. Hence, it does not lie in the mouth of the appellant, at the behest of the DGGI, to submit that an inquiry was pending against the applicant. (v) The proviso to Section 98 (2) of the said act can be applied only when any cases or proceedings are pending in the name of the applicant, in the present appeal, it is "the respondent". The movie story that the investigations were initiated against the franchisor and hence, the respondent has no reason to approach the advance ruling authority for advance ruling, is without any basis. Such contention of the appellant-department is vague and absurd. It needs to be stated only to be rejected. (vi) Even otherwise, it is immaterial, in law as well as in the facts and circumstances of the present case, whether there is any proceeding pending in the name of the franchisor or other franchisees. As per law, the provisions of Chapter XVII would be applicable only qua "the applicant". The term "applicant" has been defined statutorily under section 95(c) of the Act as any person registered or desirous of obtaining registration under this Act. The ruling an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....They act on instructions of the client (assessee). The department should not stoop to such levels. In fact, it is only the department that is capable of making such frivolous allegations, without any basis, let alone evidence. (ix) The statement of Shri. Virendra Nand Kumar has been recorded on 10.05.2019. The same has been recorded after the impugned order came to be passed. Hence, the said statement has been recorded, under duress, force, coercion and threat, in order to support the DGGI's version. A copy of the said statement has not been provided to Shri Virendra Nand Kumar. No opportunity of allowing the maker thereof to retract the said statement has been granted. The said statement has not been tested on oath. No cross examination of shri Virendra Nand Kumar has been granted. Hence, as such, no reliance can be placed on the said statement. (x) In Basudev Garg Vs. Commissioner of Customs - 2013 (294) ELT 353 (Del.) = 2013 (5) TMI 350 - DELHI HIGH COURT, the Division Bench of Delhi High Court has held that the statement against the assessee cannot be used without giving them opportunity of cross examination. A statement needs to be tested on oath before being led in as e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) The above submission is purely presumptive in nature. Had the above been the case, the ARA would still have proceeded to decide the application, on merits, in as much as there was no proceeding pending against the applicant. The proviso to section 98(2) would not be applicable in the facts of the present case. (xvii) At Para G of the present appeal, the appellant-department contends that some of the major competitors in the field such as ice-creams brands under trade names "Gelato", "Baskin Robbins", "Cafe Chokolade" etc. have rightly classified their activity of serving of Ice-cream at parlour end as' supply of services' under the HSN code 996331 of the GST tariff of India and they have paid CGST @2.5% and SGST @ 2.5% or the IGST @ 5%, as the case may be, w.e.f. 15.11.2017 by following amending Notification No. 46/2017-C.T. (Rate) dated 14.11.2017. (xviii) The respondent submits that the above grounds taken by the appellant-department are absurd and incongruous. What is being done by other suppliers is not a basis to decide the present appeal. The present appeal needs to be decided on the facts of the present case. It is not known as to what is the activity being undertake....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ream parlours are 'restaurants'. 34. Before adverting to the submissions made by the appellant department on merits and providing a response thereto, it is submitted that the above ground of appeal is frivolous and cannot be raised by the department. There is no dispute on facts. The facts as stated in the application are accepted by the department in their response/report filed before the Authority for Advance ruling. Hence, it is clear that the above factual position has been typed by the DGGI officials and provided to the appellant department. The appellant department never disputed facts. An appeal is not provided under Chapter XVII to dispute the factual position. If that be the case, the appellant department should have stated so in the report itself. The entire report of the department is in agreement with the facts stated in the application and the submissions of the applicant (respondent herein). It is a complete summersault, now, in the present appeal. The department needs to be reminded that it is not a case of assessment proceedings. It appears that the appellant department has donned the cap of an assessing officer while drafting the grounds of appeal, which is, par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt department, to get the advance ruling over turned by hook or by crook, amazes the respondent 39. The reliance placed on definitions of "ice cream parlour" is out of context. It is the activity which is question and not the place from where the activity is undertaken. In any case, it is submitted that above reliance is inaccurate inasmuch as the sources namely "Longman dictionary" and "Wikipedia" are not reliable one and can be modified, amended or changed at anybody's end. Therefore, such resources cannot be relied upon and should not be even considered at first instance itself. 40. There could be no objection to this fact that the transaction under consideration involves transfer of property in movable goods. The respondent submits that, in the instant case, the customer approaches the respondent to buy Ice-cream. The customer accordingly, places the order from the price list and the same is delivered to them. In case of retail pack, the box is supplied as it is. However, in case of scoop, the flavour of choice is sold as per the customer preference i.e. in cup or cone. In either of the cases, the ice-cream received by the respondent from the franchisor is supplied as it ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....als served to casual visitors in the restaurant of hotels would constitute a sale, the Apex court stresses on the fact that there is no transaction of sale as the property does not pass to the customer and the customer has no right to take away the goods. The supply of goods is only a part of the service contract. The Supreme Court observed that when meals were served to casual visitors in the restaurant the service must be regarded as providing for the satisfaction of a human need and could not be regarded as constituting a sale of food when all that the visitors were entitled to do was to eat the food served to them and were not entitled to remove or carry away uneaten food. Supporting consideration included the circumstance that the furniture and furnishing, linen, crockery and cutlery were provided, and there was also music, dancing and perhaps a floor show. 45. To similar effect is another decision of Apex court in the matter of State of Himachal Pradesh v. Associated Hotels of India [1972] 2 SCR 937 = 1972 (1) TMI 80 - SUPREME COURT. The ratio decidendi of the above judgment is that what is to be adjudged in each case is as to whether the dominant intention in a given tran....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esale containers. The same is then retailed in small scopes and cones over the counter-The respondent dos not serve the ice cream at its store. Thus, there is clearly transfer of title in goods i.e. ice-creams to the customers in cone and cup. 49. To substantiate the above interpretation, the respondent also place reliance on decision of the Rajasthan High Court in the matter of Govind Ram and Ors. Vs. State of Rajasthan and Ors. reported as AIR 1982 Raj 265 = 1982 (1) TMI 209 - RAJASTHAN HIGH COURT wherein the Hon'ble High Court has held that:- "5. cases of sales of foodstuffs or eatables made across the counter, they are obviously transactions of sale, even though some service may be rendered in packing the foodstuffs, yet it may be so insignificant or incidental that the transaction would essentially be one of sale. Similarly, if food stuffs or drinks are supplied to customers outside the hotel or restaurant, then also the transactions may amount to sale. In case where the owner of the hotel or restaurant or the eating house charges separate amount by way of service charge for the service rendered by him besides the cost of the foodstuff supplied to the customer, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....The respondent further submits that, prior to the introduction of GST the company was registered under the Maharashtra Value Added Tax Act, 2002 (MVAT Act) as resellers and were discharging VAT @ 13.5%. Copy of our registration certificate is enclosed here with. Further, the company is also registered under the GST Law as a reseller and has provided "Ice creams" as the goods that it deals in. It is mandatory for resellers of food and food service providers to obtain a license under the Food Safety and Standards Act, 2006. Our firm is registered under the said act as a "Retailer". Copy of the said License/certificate is enclosed here with. Further, each of the stores are registered under the Maharashtra Shops and Establishment Act, 1948 and holds a registration certificate issued by the Municipal Corporation. The registration certificate describes the nature of business of the store as "Sale of Ice-creams". Copy of this License/ registration Certificate is enclosed here with. This fact is undisputed even in the present appeal. The appellant department cannot go beyond such statutory recognitions. Hence, the present appeal is liable to be rejected. The transaction is of transfer o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y have the food and cannot take it away. 'As a part of any service' means that there is a transfer of title in goods but that that transaction is a part of a composite transaction of goods and service. For instance, supply of food to a customer staying in a hotel. 57. Lastly, the words 'in any other manner whatsoever' will mean that the supply of food can be in any other manner but there should be some element of service involved in the transaction. The aforesaid words occur in the entry with the words by way of or a part of any service. It is a settled principle of interpretation to construe words in an Act of Parliament with reference to words found in immediate connection with them. As per the rule of noscitur a sociis, the meaning of the word is to be judged from the company it keeps. Where two or more words, which are susceptible of analogous meaning, are coupled together they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general. 58. Thus, a transaction of supply of foods would be covered within the ambit of Para 6(b) of Sche....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rink, where such supply or service is for cash, deferred payment or other valuable consideration, provided by a restaurant, eating-joint including, mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied, other than those located in the premises of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes having declared tariff of any unit of accommodation of seven thousand five hundred rupees and above per unit per day or equivalent is chargeable to GST at the rate of 2.5%. The same is applicable on the condition that the input tax charged on goods and services used in supplying the service has not been taken. 63. The above notification prescribed the rate of CST to be charged on the supply of service. At the outset the respondent reiterates that since the activity undertaken by the respondent is that of supply of goods, the said notification is not applicable in the instant case. Even otherwise, the supply must be provided by a restaurant, eating joint including mess, canteen. The terms "Restaurant, "Eating Joints", "Mess" or "Cant....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... applied by the Madras High Court in Boak Roberts and Co. (India) Limited Vs. Board of Revenue (CT.) = 1978 (1) TMI 156 - MADRAS HIGH COURT reported at Madras 1942 STC 370.Reference may also be invited to the judgment of the Hon'ble Punjab and Haryana High Court in the case of Assessing Authority Vs. Amir Chand Om Parkash reported at 33 STC 120 = 1973 (5) TMI 85 - PUNJAB AND HARYANA HIGH COURT, wherein the High Court considered whether 'dhoop' and 'aggarbatti' fell within the ambit of the said Entry No. 16. It held that they did not for two reasons. The first of the two reasons is no longer valid by reason of a subsequent amendment, but the second reason is still valid. The Punjab & Haryana High Court said:- "So far as dhoop and aggarbatti are concerned, there is another way of looking at the matter. The entry (i.e., Entry No. 16) is "cosmetics, perfumery and toilet goods The context in which the word "perfumery" occurs shows that what is meant by all the three general items "cosmetics, perfumery and toilet goods" are articles which are used for personal hygiene or pleasure. The items which are excepted from this entry are "toothpaste, tooth powder, soap and kum-kum." This....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Reliance is placed on the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Bhubaneshwar v. Champdany Industries Ltd. 2009 (241) ELT 0481 (SC) = 2009 (9) TMI 7 - SUPREME COURT wherein the court held that when the goods are covered by a specific entry, the same cannot be classified under general/residuary entry. 70. Further, in the case of Moorco (India) Ltd. v. Collector of Customs, Madras 1994 (074) ELT 0005 (SC) = 1994 (9) TMI 68 - SUPREME COURT, the Hon'ble Supreme Court held as under: The specific heading of the classification has to be preferred over general heading. The clause contemplates goods which may be satisfying more than one description. Or it may be satisfying specific and general description. In either situation the classification which is the most specific has to be preferred over one which is not specific or is general in nature. In other words, between the two competing entries the one most nearer to the description should be preferred. Where the class of goods manufactured by an assessee falls say in more than one heading one of which may be specific; other more specific, third most specific and fourth ge....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing, classification of goods/services, taxation etc. are under strict watch, control and guidance of the franchisor. Therefore, the entire activities of respondent are therefore be considered as supply of services. 76. At the outset, it is submitted that the said submission and the costing (as depicted) involved is wholly beyond the understanding of the respondent. The said submission is not germane to the issue at hand. It is not a subject matter of the ruling itself. It is not one of the questions proposed or answered by the Authority. Hence, as such, the said argument is frivolous, to say the least. The appellant department needs to be reminded that this is an appeal and not a show cause notice. 77. Second, in any case, the above argument is wholly based on surmises and conjectures. It is presumptive in nature and without any basis. There is no evidence led in by the appellant department in support of the said argument. 78. Third, in any event, the respondent submits that the franchise agreement is at arm's length. The Income Tax department has accepted the sale price of the goods by the franchisor to the franchisee. 79. Fourth, if the argument of the Department were....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reated as part and parcel of the present cross objection. Personal Hearing 84. A personal Hearing in the matter was conducted on 14.08.2019, which was attended by Shri Suhas Kaware, Asstt. Commissioner, State Tax from the appellant side, and by Shri V. Sridharan, Advocate from the respondent side. The representatives of both the Appellant as well as the Respondent reiterated their written submissions. Prior to this hearing, one letter dated 29.07.2019 was filed by the Deputy Director, PZU, wherein it was requested to grant an opportunity to present their side in the capacity of the concerned officer, as they had initiated investigation against the Respondent's franchisor, namely M/s. KOTI and its 11 other franchisees located in Mumbai, Delhi, Kolkata, Gurugram on 05.02.2019, which was before the date of filing of the advance ruling application i.e. 25.02.2019. They, inter alia, contended that the Respondent was not eligible to file the Advance Ruling application as the proceedings against its franchisor i.e. M/s. KOTI and some of its franchisees had already been initiated on the same issue as that of the questions raised in the advance ruling application, i.e. the 'classifica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eams Pvt Ltd, (in short KOTI), Kandivali Industrial area, Charkop, Kandivali, Mumbai and some of its Directors have formed one more company under the name M/s Kamaths Natural Retail Pvt Ltd (in short KNRPL) which owns around 12 Naturals ice cream parlours in Mumbai, Delhi, Kolkata and Gurgaon. Both, KOTI and KNRPI, do their business operation from a common office cum factory premises, at Kandivali. Naturals ice cream is served from around 133 exclusive Naturals outlets across India and the business model runs on an identical franchise agreement entered between KOTI (franchisor) and owners of different Naturals outlets (franchisees). The annual turnover of ice cream manufactured and sold by KOTI to its franchisees, was roughly Rs. 200 Cr. 86. The Directorate General of GST intelligence (in short Pune Zonal Unit, Pune is the apex intelligence agency under Ministry of Finance. Department of Revenue which has been invested with powers to detect and investigate eases of GST evasion throughout the territory of India under the Central GST Act, 2017, irrespective of the fact that whether the tax payer is under the control and administration of Centre or State authorities vide Notificati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted at Airoli, Navi Mumbai are the supplier of Spectrum Software to KOTI and its franchisees. A statement dated 26.04.2019 of Sr. Manager (Accounts and Finance) of M/s. Creative IT India Pvt. Ltd. was recorded under Section 70 of central GST Act, 2017, where under it has been inter-alia confirmed the present Respondent is under obligation to use the billing software supplied by KOTI through M/s Creative IT India Pvt. Ltd. which contained inter alia classification of 'supply' of ice cream made by the respondent and GST rate to be applied. It was further confirmed that the classification and GST rate cannot be changed by any of the franchisees including the present respondent and in fact all the franchisees have to follow the dictates of the franchisor. 92. In the meantime, the present respondent Arihant Enterprises made an application dated 25.02.2019 before Maharashtra Advance Ruling Authority Mumbai on the issue of whether the supply of Ice Cream made by it from its retail outlet would be treated as supply of "goods" or supply of "service" or a "composite supply". In this context-after due consideration of various submissions made before it, The Hon'ble Maharashtra Authority Fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....endra Mutha, inter-alia admitted that he was aware of the ongoing investigations of DGGI against KOTI and its franchisees and with due oral discussions with Directors of KOTI, the decision was taken to file an application before the AAR through a common consultant Mr Chirag Mehta but the relevant facts about DGGI investigations was not incorporated in their application made before Advance Ruling Authority and thus the material facts were suppressed from the Advance Ruling authority. 96. that, it is admitted by Mr Mutha that at times they have melted ice cream received in Tubs of 0.5 kg (approximate 25% of receipts), meant of retail sale, but they scooped and served. It is noted that this act of the respondent is in contradiction to his submission before Authority for Advance Ruling that they do 70% of ice cream resale in Tubs with MRP as received and therefore misled the AAR to that extent. 97. that it is evident from the terms and conditions of the franchise agreement that in the entire scheme of KOTI, the franchisor had the upper hand and final say in every aspects of business and the applicant had no reason to approach the Authority for Advance Ruling on the issue of class....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed by way of suppressing the material facts from the Advance Ruling Authority and hence the impugned Order of the AAR, is liable to be quashed ibid holding it void ab-initio in terms of Section 104 of the Act. 99. Further, the respondents have clearly misunderstood the provisions of Advance Ruling under Ch XVII of CGST Act, 2017. Provisions of section 104 are not self contained. In fact Section 102 of CGST Act, 2017 has provided both the Advance Ruling Authority and Appellate Authority for Advance Ruling with powers to rectify the errors apparent on the face of the records, which they can do suo-motu or when pointed by concerned officer, jurisdictional officer or the applicant or the appellant Thus, only in cases of errors being apparent on the face of the records, errors can be rectified by Authorities. In cases of such orders which are obtained by fraud, suppression, misstatement the orders need to be declared void for which the Authorities have powers. The respondents are trying to force certain word of his own into the Act to interpret the same for its own benefit. Due to the special nature of circumstances of the present case it became incumbent on the undersigned to point ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or service is for cash, deferred payment or other valuable consideration, provided by restaurant, eating joints including mess, canteen whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied, other than those located in the premises of hotels, inns, guest houses, clubs, campuses or other commercial places meant for residential or lodging purposes having declared tariff of any unit of accommodation of seven thousand five hundred rupees per unit per day or equivalent shall attract Central Tax @2.5% without any input tax credit under item (i) above and shall not be levied at the rate as specified under this entry' It is to be noted in the above explanation that after the words "provided by restaurant, eating joints" there is a word "including mess, canteen". The word "including" in this context suggest that the list given is not exhaustive as there is an intention of the legislature to widen the scope to include many other similar things. This view will also get support from the amending Notification No. 13/2018-C.T. (Rate) dated 26.07.2013, which further amends the original Notification No. 11/201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ally used in the interpretation clause in order to enlarge the meaning of the words in the Statute. When the word 'include' is used in words or phrases, it must be construed as comprehending such things as they, according to their nature and impact but also those things which the interpretation clause declares they shall include" 105. that Hon'ble Apex Court in its yet another landmark judgement in the case of Ramala Sahkari Chini Mills Ltd v. Commissioner of C.Ex., Meerut-I = 2010 (11) TMI 34 - SUPREME COURT it has been held that "15. Therefore, it is trite that generally the word "include" should be given a wide interpretation as by employing the said word, the legislature intends to bring in, by legal fiction, something within the accepted connotation of the substantive part. (Also see: C.I.T., Andhra Pradesh v. M/s. Taj Mahal Hotel, Secunderabad - (1971) 3 SCC 550 = 1971 (8) TMI 2 - SUPREME COURT, Indian Drugs Pharmaceuticals Ltd. Ors, Vs. Employees' State Insurance Corporation & Ors. - (1997) 9 SCC 71 = 1996 (11) TMI 474 - SUPREME COURT, T.N. Kalyana Mandapam Assn. Vs. Union of India & Ors. -(2004) 5 SCC 632 = 2004 (167) E.L.T. 3 (SC.) = 2006 (3) STR.260 (S.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d from KOTI. The transactions between KOTI and the present respondent are governed by the franchise agreement agreed between them. No franchise fees are charged separately. No sales promotion expenses, advertisement expenses, infra structure and business support etc provided to KOTI are reimbursed separately to the respondent. Storage expenses, serving expenses, etc. are not reimbursed separately by KOTI. But all the activities of the present respondent including billing, classification of goods/services, taxation etc. are under strict watch, control and guidance of KOTI. To cover all these aspects, KOTI offers more than 90% margin over and above the ex-factory cost price of ice cream supplied to the present respondent, as can be seen from the facts demonstrated below;- • Naturals ice cream is supplied in Bulk packaging of 1.50 kg from KOTI: Ice cream price at KOTI-Rs. 360/- per kg • There is a discount of 6% given and Transportation cost from Mumbai Pune-Rs. 6/-per kg which KOTI has included in Taxable value • Thus, Taxable value at factory end - Rs. 344.4 per Kg i.e. (360-21.6+6=344.4/-) • At franchisee/ ice cream parlour's end,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....12. that some of the major competitors in the field such as branded ice Cream under trade names "Gelato", "Baskin Robbins", "Cafe Chokolade" etc. have classified their activity of serving of Ice Cream at parlour ends as 'supply of services' under SAC 996331 of the GST tariff of India and they have paid GST@ 5% without ITC w.e.f. 15..1.2017 by following the amending Notification NO. 46/2011-Central Tax (Rate) dated 14.11.2017. 113. that sample photographs of a representative Natural Ice cream located in Pune city is being submitted for perusal as well the photographs taken of Arihant Enterprises. From the photo it is evident outlet has sitting arrangement so as to sit and enjoy Naturals ice creams which comprises sufficient chairs and round tables. The outlet also displays Naturals Brand logo and other advertisements about the various flavoured Naturals ice cream served at the parlour. This factual position disproves the claim of the respondent and confirms that it has the qualities of a restaurant, eating joint, mess, canteen, cafeteria etc. referred to in the Notifications No. 11/2017 central Tax (Rate) dated 28.06.2017 as amended from time to time prescribes GST rate of 5% wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... including the present respondents are found to be violating the law including suppressed sales which is being investigated in the present investigation. 117. That the reliance has been placed on the following judgments delivered in department's favour:- a. Advance Ruling No. KAR ADRG 21/2018 dated 21stAugust, 2018 in the case of M/s Coffee Day Global Ltd = 2018 (9) TMI 1042 - AUTHORITY FOR ADVANCE RULINGS, KARNATAKA. b. Advance Ruling in the case of case of Jabalpur Entertainment Complexes P. Ltd = 2018 (9) TMI 1644 - AUTHORITY FOR ADVANCE RULING, MADHYA PRADESH. 118. That in view of the above positions, the DGGI, PZU in the capacity of the concerned officer prayed as under:- a) That the impugned order of the AAR is liable to be quashed being non maintainable ab-initio and the same may thus be set aside on merits, b) To allow the present Appeal, c) That strictures be passed against the respondents for suppressing and misrepresenting to the Authority for Advance Ruling and attempting to abuse the law. d) Any other order as deemed fit. Respondent's reply to the abovementioned affidavit filed by DGGI, PZU: 119. The pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....GI Officer in his affidavit, he has failed to submit any evidence of any proceeding initiated against the applicant-respondent. He has merely stated that the investigations were initiated against the Franchisor (KOTI) and some of its franchisees. Further, even if approval has been obtained for initiation of investigation of all franchisee, it is an admitted fact that no summons has been issued or no inquiry has been initiated against the applicant-respondent till date. 125. Per contra, the DGGI Officer has in his affidavit at para 14, and the appellant in his appeal at para D, stated that the applicant-respondent had no reason to approach the Authority for Advance Ruling especially when no dispute had cropped up even from the concerned State Tax Officer. 126. Thus, no proceeding is pending against the applicant-respondent and the claim of the DGGI officer and the appellant is entirely baseless and without substance. Appeal can only be filed by an aggrieved person. The Authority for Advance Ruling has upheld the claim of the jurisdictional office and thus the jurisdictional officer cannot be an aggrieved person. 127. Section 100(1) of the CGST Act provides for appeal agains....
X X X X Extracts X X X X
X X X X Extracts X X X X
....will have same power as are exercisable by the Central Tax Officer of the corresponding rank. 132. However, the notification does not provide that DGGI will be jurisdictional officer of all assessee whether under the administration of Centre or State authority. The applicant-respondent is under the Jurisdiction of Assistant Commissioner, State Tax, Pune. Thus, DGGI is not jurisdictional/concerned officer of the applicant-respondent and has no locus standi to compel the jurisdictional officer to file an appeal contrary to his own submission before the Authority for Advance Ruling. The jurisdictional officer is not aggrieved and thus the appeal is not maintainable. 133. The Authority which has passed the order may rectify error apparent on record or declare the ruling void if obtained by reason of fraud or suppression. No appeal lies in such cases. Even otherwise, there is no fraud or suppression in the present case. 134. Section 102 of the CGST Act provides for rectification of any error apparent on the face of the record by the Authority which has passed the order. The relevant extract of the section is as under:- "102. The Authority or the Appetite Authority may ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... facts. 137. However, appeal does not lie against the order of Authority for Advance Ruling under section 102 or 104 of CGST Act. The submissions of the DGGI Officer that the appeal lies in the present case is contrary to the above provisions of the CGST Act. 138. In para 13 of the affidavit filed by DGGI Officer it has been stated that the applicant respondent has melted the ice cream from tubs and scooped the same. It is submitted that the fact that the ice cream is melted and sold in scoops was disclosed by the applicant-respondent at para 7 and 8 of the Advance Ruling application. Thus, the DCGI Officer has wrongly alleged that the applicant-respondent has suppressed the facts. The present case involves transfer of title in ice cream over the counter. There is no element of service. The transaction is of supply of goods classifiable under HSN code 2015 139. Section 7(1A) of the CGST Act provides that the whether a supply is a supply of goods or supply of service has to be determined in accordance with Schedule II of the CGST Act. The said section is reproduced as under.- "7. (1A) where certain activities or transactions constitute a supply in accordance wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....part of any service. It is a settled principle of interpretation to construe words in an Act of Parliament with reference to words found in immediate connection with them. As per the rule of noscitur a sociis, the meaning of the word is to be judged from the company it keeps. Where two or more words, which are susceptible of analogous meaning, are coupled together they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general. 144. Thus, a transaction of supply of foods would be covered within the ambit of Para 6(b) of Schedule II only if there is some element of service involved and if it is a composite supply. Further, the service element has to be seen at 6me of making of supply. It is well understood that the nature of supply has to be determined at the time of supply; what happens prior to making of supply and what happens after making of supply is wholly irrelevant. There is no service involved at the time of making of supply and thus the transaction is covered by Para 1(a) of Schedule II of the CGST Act and thus a supply of goods. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....counter it is a sale, pure and simple, like-any other commodity in any other shop with no element of service involved. If at all any service is involved, It is in no way different from the service involved in ordinary transaction of sale of any other goods which are sold across the counter. It is difficult to see how such a transaction which is purely of sale and purchase of articles of food can be outside the taxing power of the State Legislature having regard to entry 54 of List II of the Seventh Schedule to the Constitution." ...........emphasis supplied 148. Similar view has been taken by the Hon'ble high court of Andhra Pradesh in the case of Durga Bhavan and Ors. [1981] 47 STC 104 (AP) = 1980 (9) TMI 260 - ANDHRA PRADESH HIGH COURT and by the Hon'ble Rajasthan High Court in the case of Govind Ram and ors. Vs. State of Rajasthan and ors. reported as AIR 1982 Raj 265 = 1982 (1) TMI 209 - RAJASTHAN HIGH COURT. 149. On the basis of the above arguments, the respondent submits that in the case of sale of tubs (retail packs) there is no element of service involved. The tubs are received from the manufacturer and supplied as such to the customer. Further, even in case of sal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the applicant-respondent is covered by Para 1(a) of Schedule II of the CGST Act and HSN code 2105 leviable to tax at the rate of 18% with input tax credit. Even from the point of view of revenue, the applicant-respondent is paving approx. 5% of the taxable turnover approx. 5% of the taxable turnover in cash. 154. The DCGI Officer has in his affidavit at para 24 given a working of tax paid by the applicant-respondent in cash. The working has been done for the period July 2017 to February 2019. It has been stated that tax payable @ 5 % by cash comes to Rs. 20,32,020/- whereas the actual cash payment is Rs. 12,12,351/-. 155. However, in the Statement of Mr.Virendra Nand kumar Mutha, it has been stated that the amount of tax payable over and above the amount declared in returns comes to Rs. 8,93,678/- for the period July 2017 to March 2019. A detailed working of the same is annexed herewith. The said amount has also been paid by the applicant-Respondent in case. The challans for the payment are also annexed herewith. 156. It is submitted that the DGGI officer has only taken the amount shown in the return and ignored the amount of tax payable (which has been paid) as state....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d not exceeding thirty days. We are satisfied that the appellant had sufficient cause in filing the application late and therefore we condone the delay. 161. The appeal has been filed by the department on the following points.- 1) It was brought to the notice of the appellant by the DGGI, Pune Zone Unit, Pune vide letters dt 14th and 17th May, 2019 that Arihant Enterprises ( hereinafter referred to as the applicant-respondent) has suppressed vital facts in the application made before the Authority for Advance Ruling (hereinafter referred to as AAR) about the investigations that had been initiated by the DGGI (Director General of GST Intelligence-hereinafter referred to as DGGI) u/s 67 of the CGST Act, 2017 against M/s Kamaths Ourtimes Ice creams Pvt Ltd (hereinafter referred to as KOTI-also the franchisor of the applicant -respondent) and its various franchisees who deal in Natural Ice creams under the terms and conditions of an identical franchise agreement entered with its each franchisees and the Advance Ruling thus obtained by keeping the AAR in the dark appears to be not a legal and correct order and therefore it should be appealed against as the subject order of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... proceeding under CGST Act was approved on 15.02.2019. KOTI and its directors were aware of the ongoing investigations against all of their Franchises which included the applicant 7) The order is obtained by fraud suppression needs to be declared void. 162. We have gone through the facts of the case. The relevant sections are as follows:- 98(2) The Authority may, after examining the application and the records called for and after hearing the applicant or his authorised representative and the concerned officer or his authorised representative, by order, either admit or reject the application : Provided that the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act: Provided further that no application shall be rejected under this subsection unless an opportunity of hearing has been given to the applicant: Provided also that where the application is rejected', the reasons for such rejection shall be specified in the order. 104. (1) Where the Authority or the Appellate Authority f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....andards of KOTI. The advertising standards are also set by KOTI. Clause 11 of the agreement requires applicant-respondent to strictly comply with the system set by KOTI. Also, as per the statement of Mr Imran Kacchhi (Sr. Manager accounts of M/s Creative IT India) the menu/flavours of ice cream, pricing, taxes applicable, HSN codes of items is updated at the Head office of M/s KOTI only and outlets do not have provision to change them. It also makes it clear that the applicant-respondent is under obligation to use the billing software supplied by KOTI through M/s Creative IT India Pvt Ltd. Thus, the franchisee operates under the tight control of the franchisor and it may be safely reasonable to assume that the taxation followed by applicant-respondent is also controlled by KOTI. Against this background, it cannot be a mere coincidence that the applicant-respondent made an application for advance ruling on 25.2.2019 immediately following the initiation of proceedings against KOTI on 5.2.2019. Having seen the sort of control exercised on the operations of the applicant-respondent by KOTI, it also is apparent that applicant-respondent was aware of the DGGI proceedings against KOTI and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s a deliberate intention on the part of KOTI as well as its applicant-respondent to obtain a decision clandestinely without revealing the issue of investigation being initiated against KOTI on the very same issue that was raised before the ARA. 166. On behalf of Arihant Enterprises, it was argued that the appeal can only be filed by an aggrieved person. The Asst Commr., State Tax, Pune who is the jurisdictional officer of the applicant-respondent had made the submission before the authority for advance ruling that the supply of ice cream from the retail outlets of the applicant-respondent is a supply of goods and the ARA accepted the submission of the jurisdictional officer. They have further submitted that the present appeal has been filed on the direction of the DGGI and they cannot compel the jurisdictional officer to file appeal. 167. We do not agree with the above. As per Section 104, power have been given to the Appellate Authority to declare an order u/s.98(4) to be void ab-initio in case it is obtained by fraud or suppression of material facts or misrepresentation of facts. The Jurisdictional Officer in the present case might have given a stand which was confirmed ....