TaxTMI 
TaxTMI 
2021 (4) TMI 938
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....he Appellate Authority under Chapter XVII of the Act shall be binding only (a). On the applicant who had sought it in respect of any matter referred to in sub-section (2) of Section 97 for advance ruling; (b). On the concerned officer or the jurisdictional officer in respect of the applicant. 3. Under Section 103 (2) of the Act, this advance ruling shall be binding unless the law, facts or circumstances supporting the said advance ruling have changed. 4. Under Section 104 (1) of the Act, where the Appellate Authority finds that advance ruling pronounced by it under sub-section (1) of Section 101 has been obtained by the appellant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void sb-initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the appellant as if such advance ruling has never been made. At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar prov....
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....s finding that the appellant's product K Juice Grape which are sold as fruit juice based drinks will fall under serial number serial no.12 of schedule IV under notification no.1/2017(Rate) and thereby leviable at 14% CGST and 14% SGST on the ground that the product falls under the category of 'others" under CTH 2202 10 90, is against the facts and settled proposition of Law laid down by the Hon'ble Supreme Court of India in similar and identical facts of case in the matter of M/s. Parle Agro Private Limited Vs The commissioner of commercial taxes, Trivandrum, Kerala reported in 106 VST Page 1. * The Authority for Advance Ruling failed to appreciate the fact that there is a specific entry enumerating "Fruit Juice Based Drinks" under the GST schedule attracting 12% tax and the Customs Tariff Head (CTH) also having a similar entry. The relevant entries under the both Acts are extracted below. Chapter 2202 OF Customs Tariff Covers: 2202 99 20.............Fruit Pulp or Fruit Juice based drinks Entry under GST Act: S.No HSN Schedule Commodity Name Rate of Tax Notification 47 2202 II Fruit Pulp or Fruit Juice Based Drinks 12% 1/2017 C. T. (Rate) dated 28.06.2....
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....ping 86 Shrink wrapping * The product "K juice Grape" is made from reconstituted natural grape juice made from grape juice concentrate. It contains fruit content and solids content more than 10% and is a Thermally processed fruit beverage / Ready to serve fruit beverage complying with category 2.3.10 as per FSSAI regulations, 2011 despite having carbon dioxide as an ingredient which is used for preservation purpose only. The above-mentioned point is purely based on scientific and technical information * The Authority has totally failed to follow the finding given by the Supreme Court in the case reported above while deciding "Appy Fizz" a fruit juice based drink. The said judgement is squarely applicable to the subject issue and the authority ought to have followed the same which is binding on them. The Authority has completely failed to consider the above judgement of the Hon'ble Supreme Court which is binding and no discussion whatsoever is made of the same inspite of the fact that it is specifically referred and cited before them. The authority is bound to follow the principles laid down by the Hon'ble Supreme Court while deciding the similar facts and interpretation....
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....that revenue has not filed any material on the record before the-clarification authority or before the High Court in support of its view that product is covered under section 6(1) (a) that "aerated branded soft drink? This court in several cases has observed that onus to prove that particular goods fall in particular tariff item is on the Revenue. In this context, in the judgment of this court in Hindustan Ferodo Ltd Vs Collector of Central Excise, Bombay (1997) 89 ELT 16 (SC), in paragraph 3 it was laid down: "3. It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within item 22F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed". We, thus conclude that orders of foods safety authority and expert opinion regarding process of manufacture relied by the appellant were relevant materials and clarification authority and High Court erred in law in discarding these materials. * By considering the above facts, statutory provisions an....
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....on is fast approaching even after excluding the period which was not considered for counting in view of Notification No. 35/2020-C.T. dt. 03.04.2020 amended by 91/2020 dt. 14.12.2020. While seeking adjournments all through, the appellant has stated that since their advocate/director (admin& Tax)/ Tax consultant is out of the station on that date due to personal engagements, they requested for postponement. We find that adhering to the Principals of Natural Justice, the appellant had been extended ample opportunities to present their case in person, which has not been availed by them by citing personal reasons repeatedly. We do not find any reason to still extend any further opportunity to hear in person and proceed to decide the case based on the documents available in file. DISCUSSIONS: 6. We have carefully considered the submissions made by the Appellant and the applicable statutory provisions. The appellant has sought ruling on the following questions: 1) Whether their product K Juice Grape fall under category of fruit beverages or fruit based drinks? 2) What is the rate of tax and HSN code for their product? 3) Is there any persevered percentage of fruit or pulp in the ....
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....und to follow the same. The contentions are discussed as under. 8.1 We find that the appellant contends that their product is 'Thermally processed fruit beverage complying with Para 2.3.10 of the FSSAI regulation and that the lower authority has given a factually false finding that "the applicant product is not thermally processed fruit juice but covered under para 2.3.30 of the regulation category and category 14.1.4.1 in the food category system in Appendix A to these regulations'. We, further find that the Lower Authority has examined the FSSAI regulation under Para 2.3.6-Thermally processed Fruit Juices, Para 2.3.30 - 'Carbonated Fruit Beverages or Fruit Drinks', 2.10.6-Beverages Non-Alcoholic-carbonated and food category 14.1.2.1-Fruit juices and 14.1.4.1 -'Carbonated water-based flavoured drinks', 14.1.1.2- Table waters and soda waters and thereupon concluded that the products are covered under Para 2.3.30 of the regulations and Category 14.1.4.1 in the food category in Appendix A to the regulations. The appellant claims that their product comes under Para 2.3.10 of the Regulation and the same is examined as under: 23.10: Thermally Processed Fruit Beve....
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....onated Fruit Beverage'. From the regulation at 2.3.10, the product is to be thermally processed whereas in the case at hand, the product is subjected to mild thermal treatment for an effective loss of water by 2 to 3 % and also is a carbonated product sold as Carbonated Fruit Juice. Thus we find this contention of the appellant is not legally sustainable and therefore not acceptable. Also, Para 2.3.30 of the FSSAI Regulation (given below) specifically covers Carbonated Fruit Drinks made of Fruit Juices: 2.3.30 Carbonated Fruit Beverages or Fruit Drinks: 1. Carbonated Fruit Beverages or Fruit Drink means any beverage or drink which is Purported to be prepared from fruit juice and water or carbonated water and containing sugar, dextrose, invert sugar or liquid glucose either singly or in combination. It may contain peel oil and fruit essences. It may also contain any other ingredients appropriate to the products. 2. The product may contain food additives permitted in these regulations including Appendix A. The product shall conform to the microbiological requirements given in Appendix B. It shall meet the following requirements: (1) Total Soluble Solids(m/ m) Not less th....
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....overs non-alcoholic beverages, as defined in Note 3 to this Chapter. not classified under other- headings. particularly heading 20.09 or 22.01 (A) Waters, Including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured. This group includes. inter : (1) Sweetened or flavoured mineral waters (natural or artificial) (2) Beverages such as lemonade, orangeade, cola, consisting of ordinary drinking water, sweetened or not, flavoured with fruit juices or essences, or compound extracts, to which citric acid or tartaric acid are sometimes added. They are often aerated with carbon dioxide gas, and arc generally presented in bottles or other airtight containers (B) Other non-alcoholic beverages, not including fruit or vegetable juices of heading 20.09. This group includes. inter alia: (1) Tamarind nectar rendered ready for consumption as a beverage by the addition of water and sugar and straining (2) Certain other beverage ready for consumption, such as those with a basis of milk and cocoa. 9.2 From the above provisions, the following are evident * As per Note A(1) above, CTH 220210 covers-Sweetened or flavoured mineral waters *....
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.... been labelling the product as "Fruit Drink" and as seen from Para 53 the FSSAI vide its Order dated August 19, 2015 has stated that "It is.......the product "Appy Fizz" in pet bottles under the category 2.3.10, i.e., Thermally Processed Fruit Beverage...with name of the food item as fruit pulp or fruit juice based drinks.......", whereas in the case at hand, the product do not fall under category 2.3.10 of the FSSAI but under 2.3.30 and also marketed as 'Carbonated Fruit Juice'. Therefore, the cited Apex Court decision is not applicable to the facts of the case at hand. 11. The issue of classification of Carbonated beverage with fruit juice and the applicable GST Rate has been dealt with by the committee of Secretaries, Fitment Committee in the GST Regime. The observation of the Fitment Committee, which recommended for no change in the prevailing rates under Annexure-III of their recommendations placed for consideration by the GST Council during the 37th Council Meeting held on is as under: Annexure III Issues where no change has been proposed by the Fitment Committee in relation to goods S.No. Description HSN Present GST Rate (%) Requested GST rate (%) Comments ....