TaxTMI 
TaxTMI 
2023 (1) TMI 84
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....riety of cheese, chocolates, chips, probiotic tea, cocoa powder, bottled beverages, fresh vegetables and fruits packed in a proper manner, certain MRP-based edible products, etc. Such food and beverages are not prepared in the restaurant. * Consumed in the restaurant premises; or * Takeaway. 2. The Applicant submits that they procure the requisite raw materials, services etc. to prepare the food items and beverages in the restaurant's kitchen. The customers visit the Applicant's restaurant, order the food/beverage preparation they want and then consume the same at the restaurants. The customers can also choose to take away the food items or beverages of their choice and consume them elsewhere. It is worth noting that the element of service i.e. the customers using the restaurant's infrastructure to consume the food or beverages is included in the pricing of the prepared food and beverages irrespective of whether the customer chooses to consume the product within the restaurant premises or takes it away for consumption elsewhere. 3. The applicant has submitted that the readily available over-the-counter products the customers may choose to consume them in the rest....
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....nation (xxxvi) of paragraph 4 of the Services Rate Notification defines 'Specified premises' to mean premises providing 'hotel accommodation' services having declared tariff of any unit of accommodation above seven thousand five hundred rupees per unit per day or equivalent. 4.3 Explanation (xxxiv) of paragraph 4 of the Services Rate Notification defines 'Hotel accommodation' to mean supply, by way of accommodation in hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes including the supply of time share usage rights by way of accommodation. 4.4 Explanation (xxxii) of paragraph 4 of the Services Rate Notification defines 'Restaurant service' to mean supply, by way of or as part of any service, of goods, being food or any other article for human consumption or any drink, provided by a restaurant, eating joint including mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied. 5. The applicant has submitted that in the given case, the restaurant prepares and serves the food and beverages which are fo....
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....ular:- "3.3 The explanatory notes to the classification of service state that 'restaurant service' includes services provided by Restaurants, Cafes and similar eating facilities including takeaway services, room services and door delivery of food. Therefore, it is clear that takeaway services and door delivery services for consumption of food are also considered as restaurant service and, accordingly, service by an entity, by way of cooking and supply of food, even if it is exclusively by way of takeaway or door delivery or through or from any restaurant would be covered by restaurant service. This would thus cover services provided by cloud kitchens/central kitchens." 8.3 The Applicant has referred relevant point of the Minutes of the 23rd GST Council Meeting held on November 10, 2017 and same is as follows:- "65.29. Keeping in view the discussion as above, the Council agreed to apply tax rate of 5% tax without input tax credit on all standalone restaurants and a rate of tax of 18% with input tax credit on a restaurant in a hotel having room of declared tariff of more than Rs. 7,500 per night. The takeaway food from a restaurant shall have similar tax treatment as tha....
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....estaurant services' classifiable under SAC '996331: Services provided by restaurants, cafes and similar eating facilities including takeaway services, room services and door delivery of food' and accordingly leviable to GST @ 5% without ITC. 9. The applicant has submitted that this view is also supported by the ruling pronounced by the Appellate Authority For Advance Ruling Uttarakhand in the case of M/s Kundan Mishthan Bhandar [Appellate Authority Advance Ruling Order No. 04/18-19] wherein the following was held:- "Thus when the goods such sweets, namkeens, cold drinks and other edible items are supplied to customers in the restaurant or as takeaways from the restaurant counter and which are being billed under restaurant sales head should fall under 'composite supply' with restaurant service being the principal supply., since supply of food in this case, is naturally bundled with the restaurant service. The taxability of all such goods supplied to or through the restaurant will be governed by the principal service i.e. restaurant service and GST rate with applicable conditions will also be applicable to all such goods also. Input credit wilt not be allowed i....
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....aurant and also supplying the foods purchased from the outside and sold over the counter in the restaurant premises. The main point here is to decide the Tax Rate of GST on both types of supply which are happened from the restaurant. 15. We find that the term "restaurant service" have been defined under Explanation (xxxii) of paragraph 4 of the Notification No. 11/2017-CT (Rate) dated 28-6-2017 and same is reproduced as under :- 'Restaurant service' to mean supply, by way of or as part of any service, of goods, being food or any other article for human consumption or any drink, provided by a restaurant, eating joint including mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied. 15.1 The above meaning suggest that 'restaurant service' is a supply of goods being food or any other article for human consumption by a restaurant for consumption in or away from premises where such food or any other article for human consumption or drink is supplied. In the foods or any other article for human consumption prepared /cooked in the restaurant kitchen and served such foods to cus....
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....d and beverages prepared/cooked in the restaurant and supplied by the Applicant to its customers either consumed in the restaurant or by way of takeaway qualifies as 'restaurant services. The restaurant service is classifiable under SAC '996331: Services provided by restaurants, cafes and similar eating facilities including takeaway services, room services and door delivery of food'. 15.7 We have hold that restaurant service is classifiable under SAC 996331, now to decide the tax rate of GST on restaurant service, we refer to relevant Sr. No. 7 of Notification No. 11/217-CT (Rate) dated 28-6-2017 as amended and reproduced as under: SI.No. Heading 9963 (Accommodation, food and beverages service) (ii) Supply of 'restaurant service' other than at specified premises 2.5% Provided that credit of input tax charged on goods and services used in supplying the service has not been taken [Please refer to Explanation No. (iv)] 15.8 Thus, restaurant service is leviable tax rate of GST @ 5% (2.5% CGST +2.5% SGST) with no input tax credit as per Sr. No. 7(ii) of Notification No.11/2017 - Central Tax (Rate) dated June 28. 2017, read with Sr. No. 7(ii) of Notification No....