2022 (7) TMI 699 - AAAR - GST

Validity of advance ruling - revenue appeal - Levy of GST - Supply of extra packs of cigarettes along with regular supply quantity without receiving any extra consideration for that additional supply - GST ON extra packs of cigarettes - ascertainment of taxable value which can be attributed to such extra packs of cigarettes for levy of GST - whether extra packs of cigarettes would be considered as exempt supply or free samples and hence attracts provisions of Section 17(2) of the UPGST, Act 2017 read with Rule 42 of the UPGST Rules 2017, or clause (h) of Section 17(5) of the UPGST Act, 2017? HELD THAT - Cigarettes are subjected to ad-valorem taxation as well as specific taxation of quantity based system, therefore any ruling passed without considering all aspect of applicable is bad in law - The Authority for Advance Ruling does not have authority to discuss about Central Excise Act, 1944, IGST Act, 2017 and GST (Compensation to State) Act, 2017. Buy one get one free clause in the Circular No. 92/11/2019-GST dated 07.03.2019 talks about only certain sections of trade and industry such as pharmaceutical companies etc and not about evasion prone commodity like cigarette and pan masala - The respondent did not inform the Authority that there are several alerts issued against the said firm by department and that they are indulged in claiming refund of accumulated ITC obtained through fraudulent means and many search operations have been conducted against the party. Ad-valorem / specific taxation - mandate of the Advance Ruling Authority - Compensation Cess - HELD THAT - The advance ruling can be sought on the questions specified in the sub-section (2) of the Section 97 of the Act and there is no bar on the any specific commodity / entity, in the Act. Further, it is also observed that the Authority for Advance Ruling can give its ruling, on the question specified under sub-section (2) of the Section 97 of the Act, with reference to the tax levied under the Act. If any particular commodity attracts tax/cess, levied under any other statutory Act/Rules then the advance ruling will be restricted to the tax portion levied under the CGST Act, 2017 only. The application for advance ruling can only be rejected if the issue raised in the application has already been pending or decided in any proceedings in the case of an applicant under any of the provisions of the Act - It is observed that though the Appellant has informed that there are several alerts issued against the said firm by department and that they have indulged in claiming refund of accumulated ITC obtained through fraudulent means and many search operations have been conducted against the party, but, nowhere it has been objected by the Appellant that the questions raised in the advance ruling application of the respondent is already pending or decided in any proceedings in the case of an applicant under any of the provisions of the Act.

Summary

Issues:
- Appeal filed against Advance Ruling Order
- Tax liability on extra packs of cigarettes
- Consideration of extra packs as exempt supply or free samples

Analysis:
1. Appeal Against Advance Ruling Order:
The appeal was filed under Section 100 of the CGST Act and UPGST Act against the Advance Ruling Order issued by the Authority for Advance Ruling, Uttar Pradesh. The Appellant challenged the ruling on various grounds, including the taxation system for cigarettes and the authority's jurisdiction to discuss certain Acts.

2. Tax Liability on Extra Packs of Cigarettes:
The respondent, a registered assessee under GST, launched a new sales scheme involving supplying extra packs of cigarettes without additional consideration. The Advance Ruling Order clarified that the extra packs would not be leviable to GST. However, the Appellant raised concerns about the specific taxation of cigarettes and potential tax evasion due to compensation cess calculations.

3. Consideration of Extra Packs as Exempt Supply or Free Samples:
The ruling also addressed whether the extra packs of cigarettes should be treated as exempt supplies or free samples under specific provisions of the UPGST Act. The Authority for Advance Ruling determined that the extra packs would not fall under these categories, thereby affecting the tax implications.

4. Discussion and Finding:
The Appellate Authority reviewed the grounds of appeal, emphasizing the scope of Advance Ruling under the Act. It clarified that the ruling pertains to questions specified in the Act and does not bar rulings on specific commodities. The Authority also addressed the Appellant's objections regarding the respondent's compliance history and the admission of the advance ruling application.

5. Ruling:
After thorough examination and discussion, the Appellate Authority upheld the Advance Ruling Order, stating that it was proper and required no interference. The decision was based on the legal provisions and interpretations provided in the Act, ensuring clarity on the tax liability of the extra packs of cigarettes as per the specific circumstances presented in the case.