TaxTMI 
TaxTMI 
2023 (3) TMI 54
X X X X Extracts X X X X
X X X X Extracts X X X X
....hese outlets have seating capacity with air conditioning where food or ice cream or both is served as per the desire of the customer; • the menu includes Punjabi food. Pay bhaji, Snacks, Ice cream, etc; 4. As far as 'The HOCCO Eatery' is concerned, the activities include * serving delicacies such as channa puri, pay bhaji, rice meals, sandwiches, pizza etc; * their menu also consists of various desert options viz milk shakes, ice creams, etc.; * the outlets have two types of arrangements i.e. o outlets having sitting arrangement wherein the customers can have dine in experience and also order food online and o outlets that do not have proper sitting facility; * that of the 10 company owned outlets, 8 have seating capacity; * the outlets without proper seating arrangements, have few odd chairs; * that there is no differentiation in the items being served at such outlets; * that the outlets have similar menu irrespective of whether there is proper seating arrangement or otherwise; * that though ice cream, preparation are sold/served, the sales mix is having significant share ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... advance ruling viz 1. Whether supply of ice cream from any of the outlets of HRPL be considered as supply of 'restaurant services' or not? 2. If the supply is classified as 'restaurant services', what would be the applicable rate of tax thereon in accordance with notification No. 11/2017-CT(Rate) dtd 28.6.2017 las amended from time to timer 3. If not the restaurant services, supply of ice cream from any of the outlets of HRPL can be considered as supply of ice cream from ice cream parlour & chargeable to GST @ 18% ? 10. Personal hearing was granted on Dt.22.12.2023 wherein Shri Rutvij Modi (Manager), Divya Soni (Deputy Manager) appeared and reiterated the facts as stated in the application. Discussion and findings 11. At the outset, we would like to state that the provisions of both the CGST Act and the GGST 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 would also mean a reference to the same provisions under the GGST Act. 12. We have considered the submissions made by the Applicant in their application for advance ruling as well as t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing or Group Service Code (Tariff) Description (1) (2) (3) (4) 80 Group 99633 Food, edible preparations, alcoholic and non-alcoholic beverages serving services 81 996331 Services provided by restaurants, cafes and similar eating facilities including takeaway services, room services and door delivery, of food • Notification No. 20/2019-C.T. (Rate), dated 30.9.2019 [amending notification No. 11/2017-C.T. (Rate)] In exercise of the powers conferred by sub-sections (1), (3) and (4) of section 9, sub-section (1) of section 11, sub-section (5) of section 15, sub-section (1) of section 16 and section 148 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, and on being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 11/2017-Central Tax (Rate), dated the 28th June, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y way of cooking and supply of food even if it is exclusively by way of take away or door delivery or through or from any restaurant would be covered by restaurant service further going on to add that the service would also cover cloud kitchens/central kitchens within its fold. The above clarification spells out the intention of the legislature, to the effect that service provided by any entity, which is engaged in cooking and supply of food would be covered within the ambit of 'restaurant service'. 17. It is in this background, that we would like to examine the question raised by the applicant as to whether supply of ice cream from any of the outlets of the applicant would be considered as supply of 'restaurant services' or not. We have already dealt with the form of outlets of the applicant in detail. For the sake of brevity, we do not intent to repeat it. 18. We find that the circular No. 164/20/2021-GST dated 6.10.2021, has also further covered the supply of ice cream by ice cream parlours. The relevant extract is reproduced below for ease of reference viz 4. Supply of ice cream by ice cream parlours 4.1 Representations have been received requesting for ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion is only to regularize the past practice, no refund of GST shall be allowed, if already paid at 18%. With effect from 6-10-2021, the ice Cream parlors are required to pay GST on supply of ice-cream at the rate of 18% with ITC'. 20. A conjoint reading of the aforementioned notification, clarification issued vide the circulars. leads us to a conclusion. that readily available food items [not prepared, cooked in the restaurant] sold over the counter by the applicant through their outlets to the customer whether consumed in the outlets/restaurant or by way of takeaway, does not qualify as 'restaurant services' and is a supply of goods. 21. In view of the foregoing, we hold that the outlets of the applicant selling already manufactured ice-cream, do not engage in any form of cooking. As already discussed above, restaurant service involves the aspect of cooking/preparing during the course of providing service. Hence, as recommended by the Council, supply of ice-cream [not prepared, cooked] by the outlets of the applicant, stands on a different footing than restaurant service. Further, their activity entails supply of ice cream as goods [a manufactured item] and not as a service....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The tax liability on a composite or a mixed supply shall he determined in the following manner, namely :- (a) a composite supply comprising two or more supplies, one of which is a principal supply, shall he treated as a supply of such principal supply; and (b) a mixed supply comprising two or more supplies shall be treated as a supply of that particular supply which attracts the highest rate of tax. 24. Now, when an ice cream is ordered as a desert along with cooked or prepared food at their outlets, the question that arises is whether it would be treated as supply of goods or supply of services. Under GST, a composite supply mean a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply. Here, principal supply means supply of goods or service which constitutes the predominant element of a composite supply and to which any other supply forming part of that composite supply is ancillary. Likewise, a mixed supply means two or mor....