TaxTMI 
TaxTMI 
2021 (7) TMI 400
X X X X Extracts X X X X
X X X X Extracts X X X X
.... following question: Question No.1: As per the facts and circumstances as explained in Annexure-I supra, what is the correct classification (HSN Code) for Subject Goods i.e. 'Gomaya Samidha'? Question No.2: As per the facts and circumstances as explained in Annexure-I supra, whether the Subject Goods i.e. 'Gomaya Samidha' is exempt from levy of GST in terms of S. No. 108 of Notification No.2/2017 Central Tax Rate dated 28th June, 2017 or in the alternative in terms of S.No. 113 of Notification No. 2/2017 - Central Tax Rate dated 28th June, 2017? Question No.3: If the answer to Question No. 2 supra is in the negative, whether the Subject Goods i.e. 'Gomaya Samidha' is leviable to GST @5% in terms of S. No. 182 of Schedule I to Notification No. 1/2017 - Central Tax Rate dated 30th June, 2017? Question No.4: If the answer to both Question No. 2 and 3 supra is in the negative, whether the Subject Goods i.e. 'Gomaya Samidha' is leviable GST @5% in terms of S. No. 263A of Schedule 1 to Notification No.1/2017 Central Tax Rate dated 30th June, 2017? 2. Advance Ruling under GST means a decision provided by the authority ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ort it can be seen that the Subject Goods is nothing but 'cowdung' which is marketed to be used in the process of performing Yajna. The usage of the Subject Goods in performing Yajna shall purify the surrounding air by reducing bacteria as cowdung is considered to be anti-bacterial. c) As per S. No. 108 of the Exemption Notification No. 2/2017-Central Tax dated 28th June, 2017 all goods and organic manure falling under HSN chapter heading 3101 are exempt from levy of GST. The relevant text of the said provisions is reproduced below. GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue) Notification No.2/2017 - Central Tax Rate F.No.354/117/2017-TRU Dated 28th June, 2017 In exercise of the powers conferred by sub-section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby exempts intra-State supplies of goods, the description of which is specified in column (3) of the Schedule appended to this notification, falling under the tariff item, subheading, heading or Chapter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he First Schedule shall, so far as may be, apply to the interpretation of this notification. 2. This notification shall come into force with effect from the 1st day of July, 2017. d) Applicant submits that from the images of the packet enclosed with this application in which subject goods are packed it can be seen that the name "Gomaya Samidha" mentioned in "Hindi" on the packaging is not registered under the Trademarks Act, 1999 ("TM Act") or under any previous laws relating to trademarks and thus the same cannot be considered to be a registered brand name as provided under explanation (ii)(b) of the Exemption Notification. Further, in case of a registered brand name under the TM Act the name is generally suffixed with the letter "R" so as to communicate to the public at large that the said name or mark is registered and protected under the TM Act and copying or using the said name or mark without permission would amount to violation of the provisions of the TM Act and the same is also punishable. As there is no such registration in the present case, there is no dispute that the said name is not a registered brand name as on date of filing of this application and....
X X X X Extracts X X X X
X X X X Extracts X X X X
...... Therefore, it would attract levy only if its container or packing carried any distinctive marks so as to establish the relation between the medicine and the manufacturer. But the identification of a medicine should not be equated with the produce mark. Identification is compulsory under the Drug Rules. Technically, it is known as "house mark'. In Narayan's Book on Trade Marks and Passing-Off, the distinction between house mark' and 'product mark' (brand name) is brought out thus, "677A. House mark and product mark (or brand name) In the pharmaceutical business a distinction is made between a house mark and a product mark. The former is used on all the products of the manufacturer. It is usually a device in the form of an emblem, word or both. For each product a separate mark known as a product mark or a brand name is used which is invariably a word or a combination of a word and letter or numeral by which the product is identified and asked for. In respect of all products both the product mark and house mark will appear side by side on all the labels, cartons etc. Goods are ordered only by the product mark or brand name. The house mark serves as an emblem of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n for a purpose and the legislature's intention is that every part of a statute should have effect and that a construction which results in redundancy of some part of a statute, must not be accepted. Reliance in this regard is placed on the following decisions:- 1. Bansal Wire Industries Ltd. Vs State of U.P. reported as [2011 (269) E.L.T. 145 (S.C.)] 2. Bharat Cottaga Industries Vs Union of India reported as [1992 (59) E.L.T. 30 (Bom.)] j) From the ratio of the above decisions, it can be seen that mere mentioning of the name/mark of the manufacturer on the packaging would not amount to using of brand name in the course of business. The mentioning of the name of the manufacturer on the packaging would also not make the goods as branded goods. Thus, the subject Goods supplied by the Applicant satisfies the test of being unregistered and the same should accordingly be exempt from levy of GST by virtue of the Exemption Notification. k) The Applicant submits that once it is confirmed that Subject Goods are unbranded the only further question that remains to be answered is that whether the said goods are covered under HSN 3101 i.e. S.No. 108 of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ioned in the schedule or definition itself. n) In the absence of any specific end usage related restriction in the Exemption Notification the Subject Goods merit classification under HSN 3101 being cowdung irrespective of the usage of the product by the consumer. o) Without prejudice to the above, even if the Subject Goods are held not to be covered under HSN 3101 as mentioned supra, the same shall still be taxable at the rate of 0% under S. No. 113 of the Exemption Notification No,2/2017 - Central Tax Rate dated 28.06.2017 being in the nature of "firewood or fuel wood" covered under Chapter Heading 4401 used in the performance of Yajna'. Applicant submits that the term 'firewood' or "fuel wood" is not defined under the CGST Act or any notification or circular issued thereunder. However, the term "wood" is defined under Note No. 6 appended to Chapter 44 of the CTA wherein it is provided that the term "wood" includes all materials of woody nature. The relevant extract of the said Note is as follows. NOTES: ............................ 6. Subject to Note 1 above and except where the context otherwise requires, any reference to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....01 is specific to fire wood and the Subject Goods shall accordingly merit classification under HSN 4401. s) Lastly, even looking at the entire matter from the angle of scientific or technical meaning test the Subject Goods being technically defined under the Notes to Chapter should be understood in the technical sense only. In this regard, reliance is placed on the decision of the Hon'ble Supreme Court in Parle Agro (P) Ltd Vs Commr. of Commercial Taxes. Trivandrum reported as 2017 (352) E.L.T. 113 (S.C.). Relevant extract of the said decision is reproduced as below:- 37 ................................... "53. It is apparent from all these reports that the calcareous stone of specific gravity of 2.5 is not marble technically and scientifically. The finding of the Appellate Tribunal is, therefore, not sustainable. It is, of course, well settled that in taxing statue the words used are to be understood in the common parlance or commercial parlance but such a trade understanding or commercial nomenclature can be given only in cases where the word in the tariff entry has not been used in a scientific or technical sense and where there is no conflict betw....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (iv) 14 percent, in respect of goods specified in Schedule IV, (v) 1.5 per cent, in respect of goods specified in Schedule V, and (vi) 0.125 per cent, in respect of goods specified in Schedule VI appended to this notification (hereinafter referred to as the said Schedules), that shall be levied on intra-State supplies of goods, the description of which is specified in the corresponding entry in column (3) of the said Schedules, falling under the tariff item, subheading, heading or Chapter, as the case may be, as specified in the corresponding entry in column (2) of the said Schedules. Schedule I - 2.5% S.No. Chapter Heading/Subheading/Tariff item Description of Goods (1) (2) (3) 263A Any chapter Rosaries, prayer beads or Hawan samagri v) Applicant submits that it is settled law that in interpretation of entries in taxing statute the words used therein are generally understood in the sense in which they are understood in the trade and industry i.e. the common parlance or popular meaning. In this regard, reliance is placed on the following decisions.- 1. Commr. of C. Ex., New Delhi Vs Connaught Plaza Restaurant (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....awan samagri is described as 'cowdung cake In the market and thus the trade and industry Recognizes "cowdung cake" as "hawan samagri" only. (Image of packing/label containing hawan samagri" obtained from open market is enclosed herewith and marked as 'Annexure 5") y) Thus, as per S. No. 263A of Schedule I to the Goods Rate Notification'hawan samagri' falling under any chapter is taxable to GST @3%. Accordingly, the Subject Goods shall be taxable to GST @5% irrespective of chapter heading and HSN classification. Based on the above, the Applicant humbly request for pronouncement of the ruling on the questions raised in the application. z) Without prejudice to the above, the Applicant respectfully requests Your Honor to grant an opportunity of personal hearing in this matter in order to explain the matter more lucidly. The Applicant reserves their right to modify, rescind or alter any part of submissions and to place additional evidence in support of their contention at the time of personal hearing. 6. Accordingly hearing was fixed on 06.04.2021 which was attended by Mr. Ashwarya Sharma, Advocate on behalf of the applicant and he reiterated the fac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....II. Astha Gaumaya samindha Is made from best quality ingredients & aimedt o creating a divine atmosphere. 8. In the said package, it is nowhere written that it is "Hawan Samagri"though a picture of two saint like persons performing hawan i.e, 'yajna' is printed on the front of said package just below the wording "Gomaya Samidha" to give an impression that it Is used for hawan or yajna. 9. Now we will consider the questions put forth by the applicant one by one. The first question Put forth by the applicant is "as per the facts and circumstances as explained in Annexure-I supra, what is the correct classification (HSN Code) for Subject Goods i.e. 'Gomaya Samidha'. 10. As per CGST Tariff, 2017, Chapter Heading 3101 covers the following goods: 3101 00 - Animal or vegetable fertilisers, whether or not mixed together or chemically treated; fertilisers produced by the mixing or chemical treatment of animal or vegetable products: 3101 0010 --- Guano --- Other; 3101 00 91 ---- Animal dung 3101 00 92 ---- Animal excreta 310....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h June, 2017? 12. Further, as per SI. No. 108 of the Notification No. 2/2017-Central Tax(Rate)dated 28.06.2017, exemption is granted to Chapter Heading no. 3101 as per following schedule: GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue) Notification No.2/2017-Central Tax Rate F.No.354/117/2017-TRU Dated 28th June, 2017 In exercise of the powers conferred by sub-section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby exempts intra-State supplies of goods, the description of which is specified in column (3) of the Schedule appended to this notification, falling under the tariff item, subheading, heading or Chapter, as the case may be, as specified in the corresponding entry in column (2) of the said Schedule, from the whole of the central tax leviable thereon under section 9 of the Central Good and Services Tax Act, 2017 (12 of 2017). Schedule S.No. Chapter Heading/Subheading/ Tariff item Description of Goods (1) (2) (3) 108 3101 All goods a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e knowledge. The applicant cannot say that they will not make actionable claim against any other manufacturer who will supply that so-called Hawan Samagri in the name of "Gomaya Samidha". "Patanjali Ayurved ka utpad" has been intentionally printed by the applicant with the product name "Gomaya Samidha" despite the fact that manufacturer's name is already printed on the backside of the said package. it is concluded that "Gomaya Samidha" is a brand name of Patanjali Ayurved ltd. 14. Since the applicant wants to supply "cowdung mixed with herbs" in the name of Hawan Samagri even then they have not clearly mentioned this product as Hawan Samagri in the packages. They have left it totally on the public's discretion whether they buy it for the purpose of Yajna or for any other purpose. It is nothing but an organic manure packed in unit container with a brand name "Gomaya Samidha"- "Patanjali Ayurved ka utpad". If the applicant print only cowdung on the package then they cannot mention it on the package as "Patanjali Ayurved ka utpad" i.e. A product of Patanjali Ayurved and public at large will buy it for different purposes and not only for Hawan or Yajna purpose as the appl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wood are described as under: 1. Firewood is any wooden material that is gathered and used for fuel. Generally, firewood is not highly processed and is in some sort of recognizable log or branch form, compared to other forms of wood fuel like pellets or chips. Firewood can be seasoned (dry) or unseasoned (fresh/wet). It is generally classified as hardwood or softwood. 2. Wood fuel (or fuelwood) is a fuel such as firewood, charcoal, chips, sheets, pellets, and sawdust. The particular form used depends upon factors such as source, quantity, quality and application. The subject product i.e. Gomaya Samidha is made from cowdung & herbs which are definitely not a kind of wood, hence also not exempt under si.no.113 of the aforesaid notification. 16. Third question raised by the applicant is whether the Subject Goods i.e."Gomaya Samidha" is leviable to GST @5% in terms of S. No. 182 of Schedule I to Notification No.1/2017 - Central Tax Rate dated 28th June, 2017. 17. S. No. 182 of Schedule 1 to Notification No.1/2017 - Central Tax Rate dated 28th June, 2017 states as follows: GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue) Notification ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 28th June, 2017 is stated as below: GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue) Notification No.1/2017-Central Tax (Rate) New Delhi, the 28th June, 2017 G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 9 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby notifies the rate of the central tax of- (i) per cent. in respect of goods specified in Schedule I, (ii) 6 per cent. in respect of goods specified in Schedule Il, (iii) 9 per cent. in respect of goods specified in Schedule Ill, (iv) 14 per cent. in respect of goods specified in Schedule IV, (v) 1.5 per cent. in respect of goods specified in Schedule V, and (vi) 0.125 per cent. in respect of goods specified in Schedule VI appended to this notification (hereinafter referred to as the said Schedules), that shall be levied on intra-State supplies of goods, the description of which is specified in the corresponding entry in column (3) of the said Schedules, falling under the tariff item, subheading, heading or Chapter, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s finding of the Tribunal. Once the subject goods are found to come within the ambit of that sub-heading, for the sole reason that they are exclusively made for cars and not for "home use" (in broad terms), those goods cannot be transplanted to the residual entry against the heading 8708. As we find the subject goods come under the chapter heading 570390.90, and the other entry under the same Chapter forming the subject of dispute in the second order of the Commissioner, in our opinion, there Is no necessity to Import the "common parlance" test or any other similar device of construction for Identifying the position of these goods against the relevant tariff entries " The applicant also referred following case laws:- In case of Indian Aluminium Cables Ltd. Vs UOI & Ors. - 1985 (21) E.L.T. 3 (S.C.) the Hon'ble Court held as follows:- "....................... This Court has consistently taken the view that, in determining the meaning or connotation of words and expressions describing an article in a tariff schedule, one principle which is fairly well-settled is that those words and expressions should be construed in the sense in which they are understood In the tra....