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TMI Blog2018 (9) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. The concept of pre-determined quantity or number is possible when the buyer/customer/consumer/recipient is aware in advance i.e. before the purchase/receipt of the said goods about the fixed quantity/weight/number contained in the package which is not the case here. Regarding marking and labeling also, Army has prescribed certain details to be printed/ mentioned on the packages like date of manufacture, lot number/batch number, firm s name and address, storage instructions, thawing instructions, for defence purpose only etc. It has not been prescribed that the actual number of carcass inside the HDPE bag or the individual weight of the carcass is required to be indicated/mentioned on the HDPE bag. There cannot be any pre-determined quantity or number in the packages and when there cannot be any pre-determined quantity or number inside the package there is no question of indication of the same on the package. Therefore, the frozen meat of goat/sheep supplied by the appellant to Army in HDPE bags does not qualify for the supplies made in unit containers as per definition provided in the explanation to the notification no. 01/2017-IGST (Rate) dt. 28-06-2017 as amended. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mentioned on such LDPE Bag. Thereafter, generally two of such LDPE Bags are put in HDPE Bag (Secondary Packing) and the weight of the two carcass packed in two individual LDPE bags is manually mentioned by marker. The reason of mentioning the weight manually by an ink marker is that the weight of each packaging is not pre-determined and uniform and varies in every consignment so dispatched, since no two animals are of same weight and size. For instance, if one of the carcass weighs 7 Kg other one weighs 6.5 Kg, the HDPE Bag would bear the marking as 8+7.5 = 15.5 Kg . C) The Four digit HSN of the Subject Product is given below:- HSN Product 0204 Meat of Sheep or Goats The IGST rate schedule as notified by the Government in respect of subject product is as under- i. w.e.f. 1st July, 2017 till 14th November, 2017 a. Schedule Il 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 is provided below: S. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct should be branded. Further, Notification No. 44/2017-lntegrated Tax (Rate) dated 14.11.2017 exempted inter-state supplies of goods from the whole of the integrated tax leviable thereon and the relevant entry is reproduced as below: Schedule S.No. Chapter/ Heading/Sub-heading Tariff item Description of Goods 8 0204 All goods, fresh or chilled 9 0204 All goods (other than fresh or chilled) other than those put up in unit container and, (a) bearing a registered brand name; or (b) bearing a brand name on which actionable claim or enforceable right in court of law is available father than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntarily], subject to conditions as in the ANNEXURE l] ; Now a diligent perusal of the above relevant entries reproduced above brings out that GST is chargeable only when the following conditions are met - Up till 14th November 2017, if product is Frozen and put up in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainer as given in the statute on the subject. Here the appellant craves leave to reproduce the definition of unit container as provided in notification 1/2017- Integrated Tax (Rate) dated 28/06/2017 as amended. Explanation . - For the purposes of this Schedule, - (i) The phrase 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. Now diligent perusal of the above definition clearly brings out beyond iota of doubt that the unit container defined here is one which would hold a pre-determined quantity or the sole determinative factor for a packaging to be a unit container is that it should hold a predetermined quantity or number. The packaging should always have a predetermined quantity or number, which alone is the guiding pole star for ascertaining as to whether the packing is in a unit container or not. In the present case, the carcass of animal is packed into one LDPE bag and two such LDPE bags are then packed into one HDPE bag which is used as master packing to hold the two individual L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for sale were exigible to central excise duty. Therefore there were twin requirements to be satisfied for the levy of duty, firstly the goods should be put up in unit container and secondly, they should have ordinarily been intended for sale. The expression unit container was not defined in the old Central Excise Tariff but instructions in this regard were issued by Central Board of Excise and Customs vide letter M.F. (D.R.I.) No. B/5/1169-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 1B 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 the product is sold by retail, or it may be a large container like drum, barrel or cannister in which the product is packed for sale to other manufacturers 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 whole sale or retail dealer or to another manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d foods (or indeed any similar product of common consumer use) in a container which is not full or practically so. Nor would a prudent customer readily buy a product in a container which does not appear to be full. 46. The above observations on the methods of marketing of common consumer products, do not require any special knowledge because they are a matter of common experience. The tariff item and the Finance Ministry s instructions are consistent with the general experience and practice as mentioned above. General experience would certainly show that prepared and preserved foods and the like, as they are ordinarily sold in the market, are packed in containers which contain a specific and clearly marked quantity of the goods. The quantity may vary according to the product and the manufacturer, but even then there are many standard quantities common to different manufacturers, such as 100 gms, 500 gms, 1 kg, 100 ml, 200 ml and 500 ml. Such products are sold in what may appropriately be called unit containers which can conveniently contain that particular quantity. It is also a matter of common knowledge and experience that in such cases the container is normally nor return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indication of weight of goods is no significance to determine if a container is a unit container or not so long as the said container contained a predetermined quantity. That similar view was expressed by the Hon ble Tribunal in the case of CCE Vs. Shalimar Super Foods [2007 (210) ELT 695 (Tri.-Mumbai), = 2006 (11) TMI 56 - CESTAT, MUMBAI wherein the tribunal held that meat articles packed in loose plastic bags which were not in uniform quantities cannot be held to be a unit container. The bags in this case were not sealed similar to the LDPE bags in the present case and weight of the animal carcass is also varied in each and every consignment of ours. 6. The explanation to the notification 01/2017 Integrated Tax(Rate) and 02/2017 Integrated Tax ( Rate) both dated 28/06/2017 as amended defines Unit Container in the similar tone and phraseology as to the definition under the old and new Central Excise Tariff and accordingly the judicial precedents ordained in context to the Central Excise provisions in relation to unit containers would very well apply to the present controversy in hand and therefore it can be safely concluded that the contents of appellant s products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uage of the notification. If the tax payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority . The same view was re-iterated by the Hon ble Apex Court in the case of: Gujarat State Fertilizers Co. v/s C.C.E. 1997 (91) E.L.T. 3 (S.C.) = 1997 (2) TMI 105 - SUPREME COURT OF INDIA wherein it was held that - an exemption notification has to be interpreted by taking into consideration, the language of the notification which has to be given its due effect. Supposed object and purpose of the exemption has to be culled out from the said language. Therefore keeping with the ratio of the law laid down by the judgments referred to supra, it can be safely concluded that the interpretation forwarded by the Authority of Advance ruling is in utter misinterpretation of the facts on record and is in utter disregard to the judicial disciple on the subject and accordingly may kindly be quashed in entirety. PERSONAL HEARING 8. The personal hearing in the matter was fixed on 14.08.2018 which was attended by Sh. Gautam Chugh, Advocate and Sh. Ashok Mishra, C.A., on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the CGST Act as an explanation to the exemption Notification and we do not see any reason to resort to the similar definitions available in other Acts/Statutes. So, we will concentrate and restrict our scope to the definition available under the CGST Act which is the subject matter of this appeal. In terms of the said definition, we observe that for any package (irrespective of size, nature and shape) to be a unit container, the following two criteria need to be fulfilled- (i). It should be designed to hold a pre-determined quantity or number. (ii). That pre-determined quantity or number should be indicated on the package. 12. We have carefully gone through the submissions made by the appellant and also the tender of supplies floated by Army. The nature of supplies is such that it is not possible to decid2 the exact quantity (either weight or volume) or the number in advance in respect of the packages to be sent to Army as the goods of supply are natural, not man made, and no two animals are same. Also, there is no such requirement from the buyer side i.e. Army who have floated the tender on total weight basis and the payments are also made monthly/fortnightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observation of AAR is contrary to the wordings of question No. 1 posed before them which clearly indicates that one or two such LDPE bags further packed in HDPE bags . As claimed by the appellant, even the number is not pre-determined as the carcass may be one or two depending upon the size of the animal but it can never be more than two. Regarding the observation of AAR that Army is aware about the pre-determined number, we have seen that Army is not concerned about the number as they have neither floated tender on the basis of number nor are they making payment to appellant based on numbers. The number of carcasses is of no importance to the Army as their contract is based on weight. Also, the indication of weight of two carcasses or one carcass on the HDPE bag cannot be inferred as indication of number of carcass on the package. There does not appear to be any strong basis for conclusion of AAR that the indication of weight of carcass on HDPE bag is indication of number which in any case is not a pre-determined one. 14. From the submissions of the appellant, tender document of Army and nature of transaction involved in the supplies, we are of the considered view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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