TaxTMI 
TaxTMI 
2021 (7) TMI 400
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....e 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 or the appellate authority to an applicant on matters or on questions specifi....
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....e 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, 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 Centra....
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....n 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 the Applicant also declares and confirms this fact that there is no registration under the TM Act on the name "Gomaya Samidha" in the name of the Applicant. e) Moving to the meaning of the term brand name' as defined in explanation(ii)(a) of the Exemption Notification, the said ....
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...."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 the manufacturer projecting the image of the manufacturer generally." The 'AP' or 'Astra' on the container or packing was used to project the image of manufacturer generally. It did not establish any relationship between the mark and the medicine. For instance, if the appellant instead of using Dextrose injections w....
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..... 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 the Exemption Notification or not. It is submitted that as per Explanation (iii) and (iv) appended to the Exemption Notification it is clear that the rules of interpretation ('Gl Rules') as applicable to the interpretation of the Customs Tariff Act (CTA) shall apply to the interpretation of HSN classification under GST as well. Thus, GST law has borrowed classification from CTA. App....
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.... 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 "wood" in a heading of this Chapter applies also to bamboos and other materials of a woody nature. p) As per Rule 1 of the GI Rules the basic principle is that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. Applying the definition of "wood" provided in Note 6 to Chapter 44, it is clear that technically "wood" not only includes wood but also any other material which ....
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....es. 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 between the words used in the tariff entry and any other entry in the Tariff Schedule." 38 In the present case, the Entry 2 under Section 6(1)(a) uses the word 'aerated'. This is scientific term and has been repeatedly used in different statutes including the Central Excise Tariff and different HSN codes also uses the term 'aerated'. The word 'aerated' is scientific and technical word used under different statutes and the scientific and technical meaning o....
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.... 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 (P) Ltd. reported as 2012 (286) E.L.T. 321 (S.C.) 2. Oswal Agro Mills Ltd (supra) 3. Ramavatar Budhaiprasad Etc Vs Assistant Sales Tax Officer, Akola reported as (1962) 1 SCR 219 4. Commissioner of Sales Tax, Madhya Pradesh Vs Jaswant Singh Charan Singh reported as (1967) 2 SCR 720 5. Indian Aluminium Cables Ltd. Vs Union of India & Ors reported as1985 (21) E.L.T. 3 (S.C.) 6. Collector of Central Excise, Kanpur Vs Krishna Carbon Paper Co. reported as 1988 (37) E.L.T. 480 (S.C.) w) Applicant submits that from the ratio of the above cases it can be seen that courts have consis....
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....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 facts as stated by the applicant in their application. DISCUSSION & FINDINGS: 1. We have gone through the application filed by the applicant for Advance ruling and the supporting documents submitted by them as well as oral submission made by the Authorised Representative of the applicant, Mr. Ashwarya Sharma, Advocate, at the time of personal hearing held on 06.04.2021. We also considered the issue involved, on which advance ruling is sought by the applicant, relevant facts & the applicant's interpretation of law. 2. At the outset, we would like to state that the provisions of both the CGST Act and the SGST Act of Uttarakhand State are the same except for certain pr....
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....ariff, 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 3101 00 99 ---- Other". The applicant themselves have described the said item as a combination of Nitrogen, Phosphorous, Potassium, Magnesium, Calcium, Sodium etc. and also stated in their application that it is a mixture of 95% cowdung & 5% herbs. Cowdung is a kind of animal dung and covered under subheading no.31010091 which proves that it is also a fertilizer. Since all these qualities of the subject product fulfils the criteria of being a fertilizer hence it is covered under chapter heading no.3101. Cowdung is used as organic fertilizer for agriculture. If 5% herbs is mixed with it even then it does not lose its characteristics of being an organic manure i.e. natural organic fertilizer. Though both 'cowdung' and "cowdung mixed with herb....
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....nder 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 and organic manure other than those put up in unit container and, (a) bearing a registered brand name; or (b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available (other than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntarily, subject to the conditions as in the ANNEXURE I) Entry no. 108 as above covers "All goods" of Ch. Heading 3101 and Organic Manure but excludes these items if put up in unit container and bear a registered brand name or brand name on which an actionable claim or enforceable right in a court of law is available (other than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntarily, subject to the conditions....
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....ing 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 applicant has tried to give impression that the said product i.e. Gomaya Samidha is a Hawnn Samagri. For classifying any product. its use becomes irrelevant, Organic manure will always remain organic manure irrespective of its use by the public at large, We also find that Animal Dung of chapter heading 3101 covered under "All goods" and organic manure are separately mentioned under SINO. 108 of the Notification no.2/2017-Central Tax (Rate) dated 28.06.2017. Thus "mixture of cowdung & herbs" is merely not a cowdung but an "Organic Manure" by its texture. Since it is an organic manure having natural nutrients hence can be used for various purpose and not only as fertilizer. Therefore "Gomaya Samidha" is not covered under Sl.No.108 of chapter heading 3101 of Exemption Notification no.2/2017-Central Tax(Rate) da....
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.... 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 No. 1/2017-CentraI 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) 2.5 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 i....
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.... 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 Above S.No.263A covers Hawan Samagri. To be eligible for this entry, the product must be recognised as Hawan Samagri from its texture which can only be used for Hawan or Yajna purpose. But the subject product i.e. "Gomaya Samidha" is not a Hawan Samagri as already discussed at Para 11 & 12 above. They themselves stated in their application that it is cowdung though not correct as it is a mixture of cowdung & herbs. Cowdung may be a part of Hawan Samagri but it itself is neither a complete Hawan Samagri nor it is recognised like that. If we visit the various websites for Hawan Samagri then we find that it is a product manufactured by mixing of various herbs including more than 51 ingredients. In fact the applicant is separately supplying their two products....
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....hich is fairly well-settled is that those words and expressions should be construed in the sense in which they are understood In the trade, by the dealer and the consumer. The reason is that it is they who are concerned with it and, it is the sense in which they understand it which constitutes the definitive index of the legislative intention" In Collector of Central Excise, Kanpur Vs Krishna Carbon Paper Co. reported as 1988 (37) E.L.T. 480 (S.C.) the Hon'ble court held as follows:- "12. It is a well settled principle of construction, as mentioned before, that where the word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the legislature.... But there is a word of caution that has to be borne in mind in this connection, the words must be understood in popular sense, that is to say, these must be confined to the words used in a particular statute and then if in respect of that particular items, as artificial definition is given in the sense that a special meaning is attached to particu....