TaxTMI 
TaxTMI 
2020 (1) TMI 1127
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....ovisions under the UPGST Act. Brief facts of the case 1. M/s. Amar Food Products, 14/310, Madan Mohan gate, Agra (hereinafter called the appellant) is a registered assessee under GST having GSTN : 09AGVPG1061E1ZF. 2. The appellant is engaged in running of General Minor Units (GMU) at Railway Platforms at which sale of packed food items, drink and cooked items is done. 3. The Appellant submitted application for Advance Ruling dated 3-4-2019, seeking ruling on the following questions : (i) Whether supply of food items at GMUs (General Minor Units) at Railway Platforms which include only counter sale of packed food items, drinks and cooked item shall be treated as "Sale of Goods" or "Sale of Services"? (ii) If it is sale of services, whether the whole revenue shall be taxed @ 5% without ITC under Serial No. 7(ia) of Notification No. 11/2017-C.T. (Rate), dated 28-6-2017 or assessee can opt to pay tax @ 18% with ITC under Serial No. 7(ix) of that notification. (iii) If the assessee pays the taxes @ 5% under Serial No. 7(ia), whether assessee can claim the Input Tax Credit (ITC) of GST paid on license ....
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....bmission dated 28th October, 2019. In the additional submission dated 28th October, 2019, the appellant submitted that their supply should be considered as "Supply of Goods" and not a Composite Supply/ supply of service, because of following reasons : (a) At the GMUs, no service, like provision for waiters, service of food on tables, supply of free drinking water, sitting arrangements, air-conditioning, linen, crockery and cutlery, etc. is available. The supply is made at MRP without any escalation in the price. (b) Transaction under consideration involves transfer of property in movable goods. There are no restrictions as regard to the place of consumption, however there is no provision for any sitting arrangement, etc. as the point of sale is the counter o such GMU. (c) Only supply involved in the above transaction is that of supply of goods i.e. food items, no service element is involved in the instant transaction. Even if it is assumed that there is some portion of provision of service involved, the same is incidental to the principal supply. (d) The predominant element involved is that of sale of food items, in the pr....
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.... 9.2 The appellant has paid reliance on the following case laws in support of their claim : (a) Kundan Misthan Bhandar (2019) 105 taxmann.com 364 (AAAR-Uttarakhand) = 2019 (24) G.S.T.L. 94 (App. A.A.R. - GST); (b) Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi {AIR 1980 SC 674}; (c) State of Himanchal Pradesh v. Associated Hotels of India {1972 2 SCR 937}; (d) Govind Ram and Ors. v. State of Rajasthan {AIR 1982 Raj 265); (e) Sangu Chakra Hotels Private Limited v. State of Tamil Nadu {1985 60 STC 125). Discussion and findings 10. We have gone through the submissions made by the appellant and examined the detailed explanation submitted by them. We observed that the appeal is mainly based upon the following points viz. (A) The Authority of Advance Ruling has erred in law and facts by holding that supply of foods items at GMUs (General Minor Units) at railway platforms which includes only counter sale of packed food items, drinks and cooked item shall be treated as "Supply of Service". (B) The supply made by appellant at GMUs should be considered as "Supply of Goods" not as "Supp....
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....he contention of the appellant that they are involved only in counter sale of food is not tenable. 12.2 We also notice that as per the License Agreement dated 29-4-2016 the appellant has to seek prior approval of Railways for sale of items and can only supply those products which are approved by the Railways. Further, the Railways have the right to inspect/ audit of appellant's unit/ records. The appellant is bound to follow the License Agreement in letter and spirit and the License Agreement clearly spells that the agreement is for "Supply of Catering Service" 12.3 The appellant has laid emphasis that they are involved only in across the counter sale and not permitted to supply the food items inside the railway coaches in terms of Para 9(D) of Sr. DCM, NCR, Agra letter dated 15-42019. However, we observe that said letter is issued to the appellant specifying the terms & conditions for "Platform Vending". Further, the Terms & Conditions for "Platform Vending" have been defined in Para 5 of the said letter dated 15-4-2019, which is as under : From the above, we observe that the contention of the appellant that they are involved only in counter sale is not correct. From ....
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....ppellant as "Supply of Catering Service". Accordingly we observe that the Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017(as amended) is squarely applicable on them. 12.6 We notice that appellant is emphasizing that at the GMUs, no service, like provision for waiters, service of food on tables, supply of free drinking water, sitting arrangements, air-conditioning, linen, crockery and cutlery, etc. is being provided by them so their transaction should be classified as "Sale of Goods". However, we observe that the appellant has entered into a "License Agreement" with Indian Railways wherein the clause on "Scope of Service" itself clearly mention the nature of activity to be provided by the appellant as "to operate, manage and supply catering service on the GMU". Accordingly, we observe that in the light of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 (as amended) the activity being undertaken by the appellant is rightly classified under Sl. No. 7(ia) of the said Notification i.e. "supply of goods, being food or any other article for human consumption or any drink, by the Indian Railways or Indian Railways Catering and Tourism Corporation Ltd. or their ....
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....fication of any transaction entirely depends upon the facts and circumstances of that particular case and any correlation cannot be drawn between two cases having different facts and circumstances. 15.3 As far as case of M/s. Govind Ram and Ors. v. State of Rajasthan {AIR 1982 Raj 265} is concerned, we observe that in the cited case the sale of food stuffs are being made across the counter, whereas in the appellant's case the vendors even carrying the foodstuffs up to the customers in the specific sized baskets/flasks specified by the Indian Railways. 15.4 With reference to the case of M/s. Sangu Chakra Hotels Private Limited v. State of Tamil Nadu {1985 60 STC 125}, the party was running a restaurant and also providing take away facility to its customers whereas, in the instant case the appellant is running a GMU under License Agreement. We observe that the facts and circumstances of this case i.e. nature of service provided, place of provision of service, control and supervision etc. are entirely different from that of the appellant's case. Hence, no parallels can be drawn between them. 15.5 Accordingly, to conclude in a nut shell, we observe that the appellant h....