In Re: M/s. AOV Agro Food Pvt. Ltd.
GST
2018 (7) TMI 1333 – AUTHORITY FOR ADVANCE RULINGS HARYANA – 2018 (15) G. S. T. L. 112 (A. A. R. – GST)
AUTHORITY FOR ADVANCE RULINGS HARYANA – AAR
Dated:- 11-4-2018
AAR No. HAR/HAAR/R/2017-18/7
GST
SANGEETA KARMAKAR AND VIJAY KUMAR SINGH, MEMBER
Present for the Applicant: Sh. Ashok Misra, C.A. Sh. Aman Sharma, Manager
Present for the department: Sh. Rakesh Dhaiya, ETO, Mewat.
Factual Background
M/s. AOV Agro Food Pvt. Ltd. ('AOV') is engaged in slaughtering and processing of poultry/sheep/goat meat and supplies products export and domestic market and Army against tender.
M/s. AOV supplies to Army Sheep/goat meat in carcasses of different weight and size in frozen Slate and similarly whole chicken of different weight and size is also supplied in frozen State. The packing and dispatch pattern for both mutton and chicken is claimed to be as under:-
(i) Mutton
Each frozen carcass is put in LDPE bag (primary packing) w
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f chapter heading 0204 and 0207, frozen and put in unit containers were taxable @ 12%.
Vide schedule-I of notification no. 43/2017 Integrated Tax (rate) dated 14.11.2017 the product of chapter heading 0204 and 0207, other than fresh or chilled and in unit container and bearing a registered brand name or bearing a brand name on which actionable claim is available, were made taxable @ 5%.
In view of the above, it is the applicant's case that the dispatches made by them in LDPF/HDPE bags, both primary well as secondary packing do not qualify as unit container and therefore their product is not leviable to tax under GST.
Comment of the Officer under section 98 (1) of the CGST, HGST Act 2017
The Deputy Excise & Taxation Commissioner (ST), Nuh (Mewat) vide his letter no. 577, dated 8.03.2018 as slated that the applicant dealer supplies frozen meat backed in PDPE bags in the shape of unit container. Since the applicant is supplying his goods packed in bags hence it qualifies as supply
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n to mean a package designed to hold a pre-determined quantity or number which is indicated on such package. The applicant had cited several case laws where the definition of unit container had been discussed and adjudicated.
After hearing and discussion in detail. the decision was reserved which is being released today.
Discussion and finding of the authority
GST is chargeable as reference to value and at applicable rates. For the purpose of building a point of view reference is made to the IGST rate schedule.
W.e.f. from 1st July, 2017 till 14th November, 2017
Schedule II of the Notification no. 1/2017-Integrated Tax (rate) dated 28th June, 2017 deals with the products which are subject to 12% GST and entry No. 4 and 7 which pertain to sheep meat and poultry meat respectively are provided below:-
Schedule-II
Sr. No.
Chapter/Heading/Sub-heading/Tariff item
Description of Goods
4.
0204
Meat of sheep or goats, frozen and put up in unit containers
7.
0207
Meat and edible o
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onwards.
Schedule I of the Notification no. 43/2017-Integrated Tax (rate) dated 14th November, 2017 deals with the products which are subject to 5% GST and entry No. 1 which pertain to sheep meat and poultry meat are provided below:-
Schedule-I
Sr. No.
Chapter/Heading/Sub-heading/Tariff item
Description of Goods
1.
0204
0207
All goods (other than fresh or chilled) and put up in unit container and-
(a) bearing a registered brand name;
(b) bearing a brand name on which actionable claim or enforceable right in court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been voluntarily], subject to conditions as in the annexure I]”;
A reading of the above mentioned entries would reveal that the items mentioned in tariff heading 0204 or 0207 [other than fresh or chilled] would be exigible to tax @ 5% if these are put up in a 'unit container' and bears a b
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forceable right in court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been voluntarily], subject to conditions as in the annexure I]”;
A conjoint reading of the extracts of the above mentioned notifications reveal that on products of Chapter/Heading/Sub-heading/TarifT item 0204 and 0207 GST is chargeable subject to fulfilment of conditions as tabulated below:
W.e.f. 1st July. 2017 to 14th November, 2017
* Must be frozen
* Must be packed in unit container
W.e.f. 15th November, 2017
* Must be frozen
* Must he packed in unit container
* Must bear a brand.
Since the applicant has sought advance ruling only on the question of taxability of the product viz a viz the packing being considered as unit container or not, it is worth understanding the meaning of the word unit container. As per the explanation appended with the above stated notification:-
'the phrase' 'unit container' means a package, whet
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ity is mentioned. Thus, the packing of the frozen carcasses and chicken done by them is only a medium of delivery and since these are not in pre-determined units, these packing cannot be termed as 'Unit Containers'
To substantiate their view regarding unit container the applicant had cited several case laws. Reliance is placed on the case of CCE. Vs Shalimar Super Foods [2007 (210) ELT 695 (Tri-Mumbai) and Surya Agro Oils Ltd. vs CCE, Indore, 2000 (116) E.L.T. 514.
In CCE. Vs Shalimar Super Foods [2007 (210) ELT 695 (Tri-Mumbai) the Hon'ble bench had considered the question of 'Unit Container' and observed in para 3:
“3….However, unit container, as per the definitions contained in several dictionaries, is a container containing pre-determined uniform quantities of contents whereas the items cleared by the respondents were not of uniform quantities. For this reason the goods in question which were cleared in plastic bags not sealed and not containing pre-print
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ax (Rate) dated 28th June 2017 a unit container means a package, whether or small (for example tin, can, jar, box, bottle, bag, carton, drum. barrel or canister) designed to hold a pre-determined quantity or number, which is indicated on such package. The explanation itself suggests that the make of the container should be such which can hold a predetermined quantity or number. It should he such that when packed it holds the predetermined quantity or the number for which it is designed. As shown to us the packaging by the applicant can weigh 10 Kgs or 11 Kgs or for that matter 10.5 or 10.25 kgs. depending upon the weight of two frozen carcasses or weight or 20-25 frozen chickens, as the case may be, packed in secondary packaging. Neither the packaging is uniform or standardised nor the packages are designed to hold a predetermined quantity.
Advance ruling under section 98 or the CGST/HGST Act 2017
In the backdrop of above discussion and findings it is ruled that
(a) The whole (sheep
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