2018 (7) TMI 1333 – AUTHORITY FOR ADVANCE RULINGS HARYANA – 2018 (15) G. S. T. L. 112 (A. A. R. – GST) – Levy of GST – Unit container – packing being considered as unit container or not? – 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 to Army – case of applicant is 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.
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Held 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 brand name or bears 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 forgone voluntarily], subject to
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n frozen state in different weight and size packed in LDPE bags without mentioning the weight and one or two such LDPE bags further packed in HDPE hags having mention of varying actual total weight of the carcasses packed in each such HDPE bags and supplied to Army Shall not quality as product put up in ‘unit Container'.
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The products as mentioned at (a) and (b) above fall under exemption list as per entry no. 10 and 13 of N/N. 2/2017-lntegrated tax (Rate) dated 28th June 2017 upto 14th November 2017 and thereafter as per entry No. 9 of N/N. 44/2017- Integrated Tax (Rate) dated 14th November 2017. – AAR No. HAR/HAAR/R/2017-18/7 Dated:- 11-4-2018 – 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
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pplication for advance ruling on the following:- The product meat of sheep/goat attracts HSN 0204 and for meat and edible offal of the poultry the four digit HSN code is 0207. W.e.f. 1st July, 2017 to 14th November, 2017 the provision relating to taxability/exemption under GST law was as under:- Vide schedule-II of notification 1/2017 Integrated Tax (rate) dated 28.06.2017 the product of 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
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l representative had stated that the applicant firm is packing the animal carcasses and the whole chicken in bags for supplying to their customers, i.e. Army, in unit containers and therefore it attracts GST @12% upto 14.11.2017 and thereafter @ 5%. The applicant had strongly argued that the packing done by them cannot be said to be unit containers as it is defined in the explanation 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-Int
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thereon. Relevant extract is reproduced below: Schedule- Sr. No. Chapter/Heading/Sub-heading/Tariff item Description of Goods 10. 0204 Meat of sheep or goats, [other than frozen and put up in unit containers] 7. 0207 Meat and edible offal, of the poultry of heading 0105, [other than frozen and put up in unit containers.] W.e.f. from 15th November, 2017 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
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ing/Sub-heading/Tariff item Description of Goods 1. 0204 0207 All goods, fresh or chilled 2. 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 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
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acked in LDPE bag (primary packing) which is not sealed and no weight is mentioned on such LDPE bags. Thereafter. such LDPE bags are put in HDPE bags (secondary packing) which do not contain fixed number or primary packing and also no quantity 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-de
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dardised quantity done by the applicant cannot be regarded as Unit Container' since it is not standardised to hold a uniform pre-determined quantity. Also in the explanation appended to the Notification No. 1/2017-Integrated Tax (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 unifo
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