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TMI Blog2018 (5) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... animal carcass in its natural shape in 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 HD PE bags being supplied to Army by applicant against tender shall qualify as product put up in "unit container"? 2. Whether the products as mentioned in query 1 shall be taxable under GST as per entry no. 4 of schedule II of the Notification no. 1/2017- Integrated Tax (Rate) dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 1 of schedule I of the Notification No. 43/2017-lntegrated Tax (Rate) dated 14th November 2017 or fall under exemption list as per entry no 10 of Notification No. 2/2017- Integrated Tax (Rate) New Delhi dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 9 of the Notification No. 44/2017-Integrated Tax (Rate) dated 14th November 2017? At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is Specification made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t up in a 'unit container ', it would be exigible to tax @ 12%. c. Correspondingly, in exercise of the powers conferred by sub-section (l) of section 6 of the Integrated Goods and Service Tax Act, 201 7, the Central Government via Notification -Integrated Tax (Rate) New Delhi dated 28.06.2017 has exempted inter-State supplies of goods from the whole of the integrated tax leviable thereon as under. Relevant extract is reproduced below: Schedule S 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] A conjoint reading of the extracts of the above-mentioned notification reveals that GST is chargeable only when the frozen meat is put up in 'unit containers'. ii. An amendment made in the schedule II of Notification No. 1/2017 dated 28th June 2017- Integrated Tax (Rate) vide Notification No. 43/2017 - Integrated Tax (Rate) dated 14th November 2017, w.e.f 15th November 2017 onwards, the following entry inserted which relates to taxability on subject products. a. Schedule I of the Notification No 43/2011-Integrated Tax (Rate) dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a tax called the central goods and services tax on all intra-state supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 and at such rates, not exceeding twenty per cent per cent., as may be notified by the Government on the recommendations of the Council and collected m such manner as may be prescribed and shall be paid by the taxable person. Thus, GST is chargeable as a reference to 'value' and at applicable rates. For the purpose of building the point of view, reference made to the [GST rate schedule as noti fied by the Government as under: 2. W.e.f from 1st July, 2017 till 14th November, 2017 Schedule II of the Notification No 1/2017-lntegrated Tax (Rate) dated 28th June 2017 deals with the products which are subject to 12 % GST and entry No 4 which pertain to sheep/Goat meat respectively are provided below: Schedule II S No Chapter Heading Sub- heading Tariff item Description of goods 4. 0204 Meat of Sheep or goats, frozen and put up in unit containers 3. A reading of the above-mentioned entry in the above reproduced notification would reveal that if the ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of such brand name has been foregone voluntarily], subject conditions as in the ANNEXURE I/": 8. Conditions for Taxability:- A conjoint reading of the extracts of the above-mentioned notifications reveals that GST is chargeable subject to fulfillment of conditions as tabulated below. * W.e.f. from 1st July, 2017 till 14th November, 2017 * Must be frozen * Must be packed in unit container * W.e.f. from 15th November, 2017 onwards * Must be frozen * Must be packed in unit container * Must bear a brand 9. keeping in mind all three conditions extracted from the notifications for the taxability of the products. There is clarity on two conditions i.e. Product is frozen and branded, However Advance Ruling is requested on the Question whether the product is put up in unit container or not. 10. Applicant's point of view Keeping in mind the facts, definition of unit container given as explanation appended to the IGST notification prescribing rates & notification granting exemption & various judicial pronouncements on and relating to "Unit Container", the applicant is of view that the packaging being used to supply frozen Sheep/Goat meat to A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined in the old Central Excise Tariff but instructions in this regard were issued by Central Excise Board's letter M.F (D.R.I.) No. B/5/1/69-CX-I, dated 3-4-1969, clarifying the meaning of the term 'unit container' as under: "Meaning of Unit Containers. The expression 'unit container' used in Tariff item IB means a container in which prepared or preserved food is intended to be sold by the manufacturer. It may be a small container like tin, can, box, jar, bottle or bag in which product is sold by retail or it may be a large container like drum, barrel, cannister in which the product is packed for sale to other manufacturer or dealers. In short 'unit container' means a container, whether large or small, designed to hold a pre -determined quantity or number which the manufacturer wishes to sell whether to a wholesale or retail dealer or to another manufacturer." 11.7 In this background, in the context of old Central Excise Tariff, reference is placed on the following observations of the Special Bench of the Hon'ble CEGAT while interpreting the term 'unit container' in the case of Collector of Central Excise v. Himachal Pradesh Horti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modity like packages of 1kg, 100 ml, 200 ml, etc. The said conclusion also follows from the meaning of the term 'unit'. 11.9 Under the new Central Excise Tariff Act, 1985 (which replaces the old Tariff) also, certain products cleared and manufactured and put up in a 'unit container' were exigible to excise duty. The term unit container' under the New Central Excise Tariff Act, 1985 was defined to mean as under: "Container whether large or small for examples, tin, can, box, jar, bottle, bag or carton, drum, barrel or canister) designed to hold u pre-determined quantity or number." 11.10 In the context of new Central Excise Tariff Act, 1 985, in the case of Agro Foods Punjab Ltd. v. Collector of Central Excise, 1990 (49) E.LT. 404 = 1990 (3) TMI 194 - CEGAT, NEW DELHI , the tribunal observed as below: We hold that there is no difference either in the entry in between 1B of the bold tariff and new tariff 2001.10 or in the issue involved in both the cases. Fallowing the ratio of the decision in the case of M/s. HPMC we hold that clearance in barrels does not amount to sale of the contents as put in a unit container. Accordingly, the goods in question are not cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT, NEW DELHI ] which was later affirmed by the Hon'ble Supreme Court in 2006 (199) ELT A183 = 2006 (4) TMI 554 - SUPREME COURT . 11.16 Explanation appended to the IGST notification prescribing rates and notification granting exemption defines 'Unit container' similar to the definition under the old and new Central Excise Tariff is provided as under: " The phase 'unit container' means a package, whether large or small (For example, tin, can, box, jar, bottle, bag, or carton, drum, barrel, or canister) designed to hold a predetermined quantity or number, which is indicated on such package." 12. In view where of the judicial principles evolved for determination of 'unit container' would hold good in the context of GST law as well. We are therefore summarizing the said principles as under: (i) In order for a container to be categorized as a 'unit container', the said container should be designed to hold a predetermined quantity and should be standardized i.e. it is standardized for a particular commodity like packages of 1kg, 100 ml, 200 ml, etc. (ii) The words unit container' does not mean only small containers which must have predeterm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks and HDPE sacks would be in different weight and sizes. Further, we are also given to understand that there is no fixed quantity and size in which these carcasses are dispatched to the Army against tender. The said dispatches are made on the basis of the actual weight of the frozen carcasses. Furthermore, the consideration is charged by Ahmednagar District Goat Rearing and Processing from the Army on the basis of the weight. Therefore, there is no doubt that the said LDPE/ HDPE bags i.e., primary as well as secondary packing do not qualify as unit container. (iii) Further, the meat in the present case is sold by the Ahmednagar District Goat Rearing and Processing on the basis of actual weight of that particular bag. That the case of CCE vs. Shalimar Super Foods supra is directly in support wherein bags containing meat which was not of pre-determined quantity was held not to be a 'unit container'. 14. Therefore, we are of the view that the product supplied by Ahmednagar District Goat Rearing and Processing shall not qualify as unit container. 15. Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts as mentioned in query I shall be taxable under GST as per entry no. 4 of schedule II of the Notification no. 1/2017- integrated Tax (Rate) dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 1 of schedule I of the Notification No. 43/2017-lntegrated Tax (Rate) dated 14th November 2017 or fall under exemption list as per entry no. 10 of Notification no. 2/2017-lntegrated Tax (Rate) New Delhi dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 9 of the Notification No. 44/2017-lntegrated Tax (Rate) dated 14 November 2017 Officer Comments :-Yes -The products as mentioned in query 1 shall be taxable under GST as per entry no. 4 of schedule II of the Notification no. 1/2017 - Integrated Tax (Rate) dated 28th June 2017 upto 14th November 201 7 & thereafter as per entry no. 1 of schedule I of the Notification No. 43/2017-lntegrated Tax (Rate) dated 140' November 2017. It is not fall under exemption list as per entry no 10 of Notification no. 2/2017 -Integrated Tax (Rate) New Delhi dated 28th June 2017 upto 14th November 2017 & thereafter as per entry no 9 of the Notification no 44/ 2017 Integrated Tax (Rate) dt. 14th November 2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Army. We were provided with photo copies of the bags in which the product is supplied. The facts as informed are thus - * The 'Acceptance of Tender' document copies as supplied by the applicant reveal thus - CONTRACT FOR SUPPLY OF MEAT DRESSED CHILLED/FROZEN AT SUKNA FOR THE PERIOD FROM 01 APR 2017 TO 31 MAR 2018 (BOTH DAYS INCLUSIVE) ON FORTNIGHTLY PAYMENT BASIS Rates tendered for delivery at Supply Point ASC Sukna as and when ordered by OC Supply Point ASC, Sukna or his authorised representative:- Item No Articles/Services to be supplied Unit Quantity in Kgs Basic price per 100 Kgs (In Rs.) Total value at basic price (In Rs.) Taxes (CST/VAT) in % Total value with tax (In Rs.) (a) Meat Dressed Chilled/Frozen Kg 35,000 41,000/- 14350000.00 6 15211000.00 CONTRACT FOR SUPPLY OF MEAT DRESSED CHILLED/FROZEN AT RANGIA AND DELIVERY POINT BARAMA FOR THE PERIOD FROM 01 APR 2017 TO 31 MAR 2018 (BOTH DAYS INCLUSIVE) ON FORTNIGHTLY PAYMENT BASIS Rates tendered for delivery at Supply Point ASC Rangiya as and when ordered by OC Supply Company ASC, Rangiya or his authorised representative.- Item No Articles/Services to be supplied Unit Quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in these bags on the basis of the statement in point e above. A perusal of all above makes us infer thus- * The phrase "unit container" is defined as "means a package, whether large or small (for example, tin, can, box, jar, bottle, bag, or carton, drum, barrel, or canister) designed to hold a predetermined quantity or number, which is indicated on such package." * Definition of 'unit container' requires that there should be mention of a predetermined quantity or number on the package (a package includes a bag). c. The definition has not specified any condition as to sealing of the package. d. The words used are "quantity or number". e. Each LDPE bag would carry one carcass. And each HDPE bag would carry two carcasses. f. There is mention of the weight of the two carcasses on the bag in the manner as follows : "8+7.5=15.5 kg" g. The above manner of marking on the bag indicates that the sum is of two items. Thus, the manner of marking reveals a "number". h. The "number" in point (f) is a 'predetermined number' as the concerned persons from the Army are aware that each LDPF bag would carry one carc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we look at the schedule entries as have been contended to be applicable. Let us reproduce the same as under - Notification S. No. Chapter /heading/ Sub-heading / Tariff item Description of Goods Period Tax rate Notification no. 1/2017 Integrated Tax (Rate) dated 28th June 2017 4 (Schedule II) 02041 Meat of sheep or goats, frozen and put up in unit containers 1-2017 TO 13-11-2017 12% Deleted w.e.f 14.11.2017 1 (Schedule I) 0202, 0203, 0204, 0205, 0206, 0207, 0208, 0209, 0210 All goods [other than fresh or chilled], and put up in unit container and, - (a) bearing a registered brand name; or (b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available (other than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntarily], subject to the conditions as in the ANNEXURE] 14-11-2017 Onwards 5% Notification no. 2/2017 Integrated Tax (Rate) dated 28th June 2017 10 0204 Meat of' sheep or goats, fresh, chilled or frozen [other than frozen and put up in unit container] 1-7-2017 TO 13-11-2017 NIL Deleted w.e.f 14.11.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held hereinabove, we pass the order as follows : ORDER (under clause (xviii) of section 20 of the Integrated Goods and Services Tax Act, 2017 read with section 98 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) NO.GST-ARA-21/2017-18/B- 27 Mumbai, dt. 21/04/2018 For reasons as discussed in the body of the order, the questions are answered thus - Q.1 Whether the whole (Sheep/Goat) animal carcass in its natural shape in 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 bags being supplied to Army by applicant against tender shall qualify as product put up in "unit container"? A.1 The question is answered in the affirmative. Q.2 Whether the products as mentioned in query 1 shall be taxable under GST as per entry no. 4 of schedule II of the Notification no. 1/2017- Integrated Tax (Rate) dated 28th June 2017 upto 14th November 2017 and thereafter as per entry no. 1 of schedule I of the Notification No. 43/2017- Integrated Tax (Rate) dated 14th November 2017 or fall under exemption list as per entry n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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