2020 (12) TMI 1049 - AAAR - GST

Maintainability of application - Appellant is aggrieved by the grounds on which the lower Authority has refused to admit the application for advance ruling - Classification of goods - Flavoured Milk - taxable at the rate of 5% under Schedule IV of the GST Act or otherwise? - HELD THAT - An appeal can be filed before the Appellate Authority only against an advance ruling pronounced in terms of Section 98(4). In this case, there is no ruling given by the lower Authority on the question raised in the application. The application for advance ruling was not admitted and was rejected by order dated 2nd Sept 2020 in terms of Section 98(2) of the CGST Act. Such an order rejecting the application for advance ruling as inadmissible is not an order appealable before us. In the instant appeal, the Appellant is aggrieved by the grounds on which the lower Authority has refused to admit the application for advance ruling which is that, the question on which the ruling was sought is a matter that is being investigated by the Directorate of GST Intelligence and hence the application cannot be admitted in terms of the proviso to Section 98(2) of the CGST Act. The Appellant has assailed this reasoning and argued that it is only when the same question is being investigated by the 'concerned officer' that the provisions of the proviso to Section 98(2) will apply; that investigations conducted by any other agency will not attract the said proviso. The Appellant has gone into great length in analyzing the intention of the legislature in framing the provisions of Section 98 and has put forth the view that it is only proceedings which are pending before the 'concerned/jurisdictional officer' which qualify for rejection in terms of the proviso to Section 98(2) - the statement recorded by the DGSTI pursuant to the summons issued, deals mainly with the classification and rate of tax of the product Flavoured Milk - Therefore, we agree with the decision taken by the lower Authority that the application for advance ruling is inadmissible in terms of the 1 st proviso to Section 98(2) of the CGST Act. The appeal filed against the non-admittance of the application for advance ruling is not maintainable in as much as the impugned order is not an appealable order under Section 100 of the CGST Act, 2017 - Appeal dismissed.

Summary

Issues Involved:
1. Admissibility of the appeal under Section 100 of the CGST Act.
2. Interpretation of Section 98(2) and its first proviso concerning the rejection of the application for advance ruling.
3. Definition and scope of "concerned officer" and "any proceedings" under Section 98.
4. The effect of pending investigations by the Directorate of GST Intelligence on the admissibility of the application for advance ruling.
5. Condonation of delay in filing the appeal.

Detailed Analysis:

1. Admissibility of the Appeal:
The appeal was filed under Section 100 of the CGST Act, which allows an appeal to the Appellate Authority for Advance Ruling by an aggrieved applicant, concerned officer, or jurisdictional officer against an advance ruling pronounced under Section 98(4). However, the application for advance ruling was not admitted and was rejected under Section 98(2), making it non-appealable. The Appellate Authority clarified that an appeal can only be filed against an advance ruling pronounced in terms of Section 98(4), not against an order rejecting the application as inadmissible.

2. Interpretation of Section 98(2) and its First Proviso:
The first proviso to Section 98(2) states that the Authority shall not admit an application where the question raised is already pending or decided in any proceedings under the Act. The Appellant argued that this should only apply to proceedings pending before the "concerned officer" and not any other officer or agency. However, the Appellate Authority found that the phrase "any proceedings" encompasses proceedings pending before any officer or investigative agency, such as the DGSTI, and not just the jurisdictional officer. The initiation of an investigation by the DGSTI was sufficient to reject the application under the first proviso to Section 98(2).

3. Definition and Scope of "Concerned Officer" and "Any Proceedings":
The Appellant contended that the "concerned officer" should be the jurisdictional CGST/SGST officer as per guidelines issued by the Director General of Taxpayer Services, CBIC. They argued that the investigation by the DGSTI should not affect the application’s admissibility. The Appellate Authority disagreed, stating that the term "any proceedings" in the first proviso to Section 98(2) includes investigations by any authorized agency, not just the jurisdictional officer. Thus, the investigation by the DGSTI was valid grounds for rejecting the application.

4. Effect of Pending Investigations by the Directorate of GST Intelligence:
The Appellant argued that mere issuance of summons does not constitute "proceedings under the Act" and that only a show cause notice would qualify. The Appellate Authority held that the initiation of an investigation under Section 67 of the CGST Act constitutes the start of proceedings to safeguard government revenue. The records showed that the DGSTI’s investigation involved the classification and tax rate of "Flavoured Milk," which was the same issue raised in the application for advance ruling. Therefore, the application was rightly rejected under the first proviso to Section 98(2).

5. Condonation of Delay in Filing the Appeal:
The Appellant sought condonation of a 4-day delay in filing the appeal, citing Covid-19 related disruptions. However, since the appeal itself was deemed not maintainable, the question of condoning the delay did not arise.

Conclusion:
The Appellate Authority dismissed the appeal on the grounds that it was not maintainable, as the rejection of the application for advance ruling under Section 98(2) is not an appealable order under Section 100 of the CGST Act. The investigation by the DGSTI constituted "any proceedings" under the Act, justifying the rejection of the application.