TaxTMI 
TaxTMI 
2022 (7) TMI 699
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....by Deputy Commissioner, CGST & C. Ex. Division-II, Agra Commissionerate (hereinafter referred to as the "Appellant") against the Advance Ruling Order No. UP ADRG 84/2021 dated 18.10.2021 issued by the Authority for Advance Ruling, Uttar Pradesh. At the outset, we would like to make it clear that the provisions of both the CGST Act and the UPGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act, 2017 would also mean a reference to the same provisions under the UPGST Act, 2017 and vice versa. Brief Facts of the Case 1) M/s Golden Tobie Private Limited, is a private limited company, having registered address at Unit No. 302, Third....
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.... packs of cigarettes would again be leviable to GST ? Ans- Answered in negative, in view of the discussions made above. Q-2 - If yes, the taxable value which can be attributed to such extra packs of cigarettes for levy of GST ? Ans -Not answered in view of answer to Question No. 1 above. Q-3 - Whether extra packs of cigarettes would be considered as exempt supply or free samples and hence attracts provisions of Section 17(2) of the UPGST, Act 2017 read with Rule 42 of the UPGST Rules 2017, or clause (h) of Section 17(5) of the UPGST Act, 2017? Ans - The extra packs of cigarettes will not be considered as exempt supplies or free samples and hence the provisions of 17(2) of the UPGST Act, 2017 read....
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....ng all the definitions "Cess" is not the tax for which the said Circular deals with. Further buy one get one free clause in the said Circular talks about only certain sections of trade and industry such as pharmaceutical companies etc and not about evasion prone commodity like cigarette and pan masala. 6.5) The party did not inform the Authority that there are several alerts issued against the said firm by department. Investigation also revealed that the party is also one of the beneficiaries of fake ITC generated. A case against the party is pending at Hon'ble High Court of Delhi for fake input credit and misuse of ITC. 6.6) The party did not inform the authority that they are indulged in claiming refund of accumulated ITC obtain....
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....ty based system, therefore any ruling passed without considering all aspect of applicable is bad in law. b. The Authority for Advance Ruling does not have authority to discuss about Central Excise Act, 1944, IGST Act, 2017 and GST (Compensation to State) Act, 2017. c. Compensation Cess on cigarettes is applicable at specific rate (depending upon filter/ non filter and length of cigarette) hence calculation of tax on all 130 packs of cigarette on the basis of tax invoice issued showing taxable value only for 100 packs of cigarettes is misleading. d. Buy one get one free clause in the Circular No. 92/11/2019-GST dated 07.03.2019 talks about only certain sections of trade and industry such as pharmaceutical companies....
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....ed to have been paid, (e) determination of the liability to pay tax on any goods or services or both, (f) whether applicant is required to be registered, (g) whether any particular thing done by the applicant with respect to any goods or services or both amount to result in a supply of goods or services or both, within the meaning of that term. In light of above, we are of the opinion that advance ruling can be sought on the questions specified in the sub-section (2) of the Section 97 of the Act and there is no bar on the any specific commodity / entity, in the Act. Further, we also observe that the Authority for Advance Ruling can give its ruling, on the question specified under sub-section (2) of the Section ....
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.... after examining the application and the records called for and after hearing the applicant or his authorized representative and the concerned officer or his authorized 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." In view of this, we are of the opinion that the application for advance ruling can only be rejected if the issue raised in the application has already been pending or decided in any proceedings in the case of an applicant under any of the provisions of the Act. However; here we ....