TaxTMI 
TaxTMI 
2021 (7) TMI 482
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....nd to use the brand name "AYYAPPA" without taking registration of the brand under the Trade Marks Act, 1999 for conducting the business of banana chips, jack fruit chips, jaggery coated banana chips (sarakaraupperi in Malayalam), masala kadala (masala coated fried groundnut. The brand name shall be printed only on the retail packs though supply is intended to be made to wholesalers also. The applicant also submits that they do not wish to raise any actionable claim on the above brand name "AYYAPPA". The Applicant was informed that there is confusion regarding the classification as well as the rate of GST applicable on the above products. While most of the dealers are paying GST at the rate of 5%, it is learnt that some departmental officers have contacted a few dealers and insisted for payment of tax at the rate of 12%. In the circumstances there is uncertainty in the market regarding the classification and rate of, tax applicable on the above products. Hence the applicant wishes to start the business after getting the correct information regarding the classification and rate of tax applicable on the above products. 4. Accordingly, the applicant requested for advance ruling on t....
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....kage would be usually in 10 kgs or 5 Kgs packets and the retail packs will be in 1 kg and 1/2 kg packets. Those packets would contain the name, address and other particulars of the applicant to meet the requirement of various applicable laws like Legal Metrology Act, 2009, Food Safety and Standards Act, 2006 etc. It is also submitted that the applicant does not wish to raise any actionable claim before any court of law on its unregistered brand name "AYYAPPA" and they are prepared to execute affidavits affirming the same. 5.3. The applicant is of the view that the Tapioca Chips are taxable at 5% as it falls under SI.No.98 of Schedule I of Notification No. 01/2017 CT(Rate) dated 28.06.2017 under the Chapter Heading 1903. Alternatively, the applicant is of the view that the Tapioca Chips are taxable at the rate of 5% as it would fall under S1 No. 101A of the 1st Schedule to the Notification No. 01/2017 CT(Rate) dated 28.06.2017 as inserted by Notification No. 34/2017 CT (Rate) dated 13.10.2017. Further, the applicant submits that the Banana Chips and Jackfruit Chips are taxable at the rate of 5% as it would fall under SI.No.101A of the First Schedule to the Notification No. 01/201....
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.....No.101A of the Notification No. 01/2017 CT (Rate) dated 28.06.2017; i.e., "similar edible preparations in ready to consumption form". Accordingly, the applicant is of the view that the Banana Chips, Jackfruit Chips and Tapioca Chips proposed to be supplied is taxable at the rate of 5% as per SI No. 101A of 1st Schedule to Notification No.01/2017 CT (Rate) dated 28.06.2017 as amended by Notification No. 34/2017 CT (Rate) dated 13.10.2017. The applicant does not intend to raise any sort of actionable claim on the brand name till it is registered and also prepared to execute affidavits or similar undertakings stating that the applicant shall not raise any actionable claim in respect of the branded banana chips, branded jackfruit chips and branded tapioca chips. The rate of 12% will be applicable to the Banana, Jackfruit and Tapioca Chips only if the same are supplied in packets containing registered brand name. 5.6. Jaggery coated banana chips are sweet in taste and sweetness predominates. Therefore, the applicant is of the view that jaggery coated banana chips squarely falls in the category of "Sweetmeats" under Serial No.101 in Schedule I of the Notification No.01/2017 dated 28.....
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....from starch in the form of flakes, grains, pearls, siftings or in similar forms. The Tariff Item only covers Tapioca products in the form of flakes, grains, pearls, siftings or similar forms not fried products and hence Tapioca Chips does not qualify to be classified under the Tariff Item. 7.3. Chapter 21 of the Customs Tariff covers "Miscellaneous edible preparations". The Heading 2106 of the Chapter 21 covers food preparations not elsewhere specified or included. Those food preparations not specified or included elsewhere in the tariff being preparations for use either directly or after processing for human consumption are to be classified under this head. Therefore, it is evident that the entry is a residuary entry in respect of edible preparations and hence the edible preparations shall be classified under this entry only if the same are not classifiable under any of the other specific entries for edible preparations. 7.4. The Explanation appended to the Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017 reads as follows; "Explanation: - (1) In this Schedule, tariff item, heading, sub-heading and Chapter shall mean respectively a tariff item, h....
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.... headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character. insofar as this criterion is applicable. (c) When goods cannot be classified by reference to (a} or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. Rule 4: Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin. 7.6. Chapter 20 of Customs Tariff specifically covers 'Preparations of vegetables, fruits, nuts or other parts of plants. As per Chapter ....
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.... contained 23% sugar and hence it was classified as "sweetmeat" whereas it is an admitted fact that the Jaggery Coated Banana Chips do not contain any sugar and it is neither known in commercial or common parlance as a sweet edible preparation containing sugar. Hence Jaggery Coated Banana Chips do not merit classification as "Sweetmeat". The contention of the applicant is that both jaggery and sugar are manufactured from sugarcane and the initial process for manufacture of both is the same and therefore the jaggery coated banana chips is to be considered as sweetmeat. It is evident from Annexure - M and N of the application itself that jaggery is manufactured from sugarcane by a simple process which can be done in the farms by the farmers themselves but the manufacturing of sugar involves many processes that cannot be carried out in a farm. The only process that is common for manufacture of jaggery and sugar is the extraction of juice from sugarcane and its concentration. Moreover, Jaggery and Sugar are commercially distinct products having individual characteristics and economic value and both cannot be equated. Hence by no stretch of imagination Jaggery Coated Banana Chips be con....