TaxTMI 
TaxTMI 
2020 (12) TMI 1049
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....mala Milk Products Pvt Ltd, 4BC 301, The Summit, 3rd Floor, 3rd Main, 4th "B" Cross, Kasturi Nagar East, Ramamurthy Nagar, Bangalore 560016(herein after referred to as Appellant) against the Advance Ruling order No. KAR ADRG 43/2020 dated: 2^nd Sept 2020 = 2020 (9) TMI 353 - AUTHORITY FOR ADVANCE RULING, KARNATAKA. Brief Facts of the case: 3. The Appellant, is engaged in processing and manufacturing of milk and milk products in the State of Andhra Pradesh. The Appellant processes various milk and milk products including "Flavoured Milk". The Appellant is carrying on the activity of selling the above said product in the State of Karnataka. 4. In this regard, the Appellant approached the Authority for Advance Ruling (AAR) seeking a ruling on the following question: "Whether Flavoured Milk is taxable at the rate of 5% under Schedule IV of the GST Act?" 5. The AAR vide its order KAR ADRG No 43/2020 dated 2^nd Sept 2020 = 2020 (9) TMI 353 - AUTHORITY FOR ADVANCE RULING, KARNATAKA rejected the application as "inadmissible" in terms of the first proviso to Section 98 (2) of the CGST Act, 2017 in as much as an investigation had already been initiated by the Directorate....
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....eport, the AAR has opined that the initiation of investigation was done prior to filing the application and hence rejected the application in terms of the 1St proviso to Section 98(2). 6.4. The Appellant submitted that the phrase "under any of the provisions of this Act" confines to the proceedings or decision taken by the concerned officer, but not the proceedings pending or decision taken by any other officer under CGST/KGST Act; that the 1st proviso to Section 98(2) cannot be read independently. The Appellant submitted that before the concerned officer no proceedings was pending or no decision was taken by the concerned officer in the Appellant's case and hence the application is maintainable. The further submitted that the "concerned officer" as per the guidelines issued by the Director General of Taxpayer Services, CBIC means an officer who has been designated by the CGST / SGST administration in regard to application for advance ruling. In normal circumstances, the concerned officer will be the officer in whose jurisdiction the appellant is located. In such cases, the concerned officer will be the jurisdictional CGST/SGST officer. They further submitted that under Sect....
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....s leading to the appeal and made the following submissions in support of the claim that the decision of the lower Authority is not correct and is liable to be set aside. He submitted that as per Section 98, the issue on which an advance ruling is sought must not be pending before the jurisdictional /concerned officer. In their case, the investigation was initiated by DGSTI, Bangalore Zonal Unit and not by the concerned officer as prescribed under Section 98(1). He submitted that the term "concerned officer" is explained in the flyer issued by the DGTPS on the Advance Ruling Mechanism under GST, wherein it is stated under the para relating to appeals against the order of the AAR, that "The word prescribed officer of CGST/SGST means an officer who has been designated by the CGST/SGST administration in regard to an application for advance ruling. In normal circumstances, the concerned officer will be the officer in whose jurisdiction the applicant is located. In such cases the concerned officer will be the jurisdictional CGST/SGST officer." Relying on this and on a conjoint reading of the provisions of sub-section (1) and (2) of Section 98 as also the proviso to Section 98(2), he subm....
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....such records shall, as soon as possible, be returned to the said concerned officer. (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 sub-section 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. (3) A copy of every order made under sub-section (2) shall be sent to the applicant and to the concerned officer. (4) Where an application is admitted under sub-section (2), the Authority shall, after examining such further material as may be placed before it by the applicant or obtained by the Authority and after prov....
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.... and argued that it is only when the same question is being investigated by the 'concerned officer' that the provisions of the proviso to Section 98(2) will apply; that investigations conducted by any other agency will not attract the said proviso. The Appellant has gone into great length in analyzing the intention of the legislature in framing the provisions of Section 98 and has put forth the view that it is only proceedings which are pending before the 'concerned/jurisdictional officer' which qualify for rejection in terms of the proviso to Section 98(2). We have already reproduced the provisions of Section 98 of the CGST Act and we find that such an interpretation is certainly not implied in the framing of the said Section. The first proviso to Section 98(2) makes an application ineligible for admission if the Authority finds that the question raised in the application is already pending or decided in 'any proceedings' in the case of the applicant under any provisions of this Act. Commencement of investigation in terms of Section 67 of the CGST Act, can be said to be the start of a proceeding to safeguard the government revenue. The investigation can be initiate....