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TMI Blog2019 (11) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... APGST Act. Further, henceforth, for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST or AP GST Act would be mentioned as being under the GST Act. 3. Brief Facts of the case: The applicant is registered under GST vide GSTIN - 37AABCT7907M1ZU. The applicant engaged in manufacturing of milk and milk products including flavoured milk. The applicant seeks clarification regarding the HSN code, and rate of duty on their outward supply of "flavoured milk". 4. Activities of the applicant: The applicant informed that; (i) Flavoured milk is a sweetened dairy drink made with milk, sugar, permissible colourings and artificial or natural flavourings; (ii) The brief manufacturing process of the flavoured milk is standardisation of fresh milk according to the fat contents and then heating at certain temperature followed by filtration, pasteurisation, and homogenisation and then mixing of sugar and flavours and finally bottling. The applicant provided process flow chart of flavoured milk. 5. Questions raised before the authority: The applicant had filed an application in form GST ARA-01, dated 12.04.2019 by paying required amount of fee for seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Central Government notified specifying schedule wise GST rates on goods vide Notification no.1/2017 - Central Tax (Rate) dated 28.06.2017 (hereinafter referred to as the "said notification" for brevity) as detailed below: (i) 2.5 per cent. in respect of goods specified in Schedule I, (ii) 6 per cent. in respect of goods specified in Schedule II, (iii) 9 per cent. in respect of goods specified in Schedule III, (iv) 14 per cent. in respect of goods specified in Schedule IV, (v) 1.5 per cent. in respect of goods specified in Schedule V, and (vi) 0.125 per cent. in respect of goods specified in Schedule VI Under Schedule III, at entry number 453, it is mentioned that goods which are not specified in Schedules I, II, IV, V, VI of the said Notification attract Central Tax rate of 9%. The Explanation to the said notification is as follows; (i) ... (ii)(a) ... (ii)(b) ... (iii) "Tariff item", "sub-heading" "heading" and "Chapter" shall mean respectively a tariff item, sub-heading, heading and chapter as specified in the First Schedule to the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The applicant opines that flavoured milk is covered in Chapter 4 of FS to CTA, 1974. We examine this aspect. The Section I of FS to CTA, 1975 deals with Live Animals; Animal Products. The Chapter 4, deals goods of "DAIRY PRODUCE; BIRDS' EGGS; NATURAL HONEY; EDIBLE PRODUCTS OF ANIMAL ORIGIN, NOT ELSEWHERE SPECIFIED OR INCLUDED. Therefore, any items/goods are specified or included elsewhere in the Schedule; those items/goods do not fall under Chapter 4. The applicant stated that flavoured milk is a preparation. Section IV deals with goods of "Prepared food stuffs; beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes" and the Chapter 22 deals with items/goods of "Beverages, Spirits and Vinegar". The tariff item no. 2202 99 30 covers "Beverages containing milk". Now, we discuss flavoured milk is classifiable under the said tariff item or otherwise. 8.5 The Hon'ble Madras High Court in the case of the State of Tamil Nadu vs Tvl. Ganesh Corporation, vide order dated 3 April, 2012 = 2012 (4) TMI 544 - MADRAS HIGH COURT, recorded that "as per the Oxford Dictionary "beverage" means "a type of drink except water". In Webster's 3rd International Dictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sweetened or not, put up in unit containers and ordinarily intended for sale. Nil. 2.2 It is submitted that even under the 8 digit code introduced from 28-2-2005, flavoured milk could only fall under Chapter 4 Heading No. 0402, more particularly under sub-heading No. 0402 99 90 reading as under :- CHAPTER 4 DAIRY PRODUCE; BIRD'S EGGS; NATURAL HONEY; EDIBLE PRODUCTS OF ANIMAL ORIGIN, NOT ELSEWHERE SPECIFIED OR INCLUDED Notes :- 1. The expression 'milk' means full cream milk or partially or completely skimmed milk. Tariff Item Description of goods Unit Rate of duty (1) (2) (3) (4) 0401 Milk and cream, not concentrated nor containing added sugar or other sweetening matter. 0402 Milk and cream, concentrated or containing added sugar or other sweetening matter. 0402 91 Not containing added sugar or other sweetening matter. 0402 99 Other 0402 99 10 Whole milk kg. Nil 0402 99 20 Condensed milk kg. 16% 0402 99 90 Other kg. Nil 2.3 Simultaneously with bringing into operation the above Tariff Amendment Act, the Central Government h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic Notification No. 3/2005-C.E. is a general exemption notification prescribing effective rate for various excisable goods, and it is under this general exemption notification that Sr. No. 11A has been inserted from 15-6-2007 thereby specifying nil rate of duty for flavoured milk of animal origin. As the product in question was classified as flavoured milk under SH No. 0401.11 of the Tariff as it stood till 28-2-2005 and since it is not disputed by the Revenue even at this stage that Amul Kool/Amul Kool Cafe is flavoured milk, the respondents would now treat the goods as chargeable to nil rate of duty from 15-6-2007. However, in the process, the petitioners' right to establish classification of these goods under Chapter 4 of the Tariff as dairy produce has been defeated because the classification of this product is shown under this Notification as 2202 90 30. 2.7 The petitioners' submission is that Section 5A of the Central Excise Act empowers the Central Government to exempt excisable goods of any specific description from the whole or any part of the duty of excise leviable thereon. The power is thus, to grant exemption of excisable goods of any specified description, but not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if the petitioners make such a representation within one week from today, it is expected that the Central Government will decide the same as expeditiously as possible and preferably within one month from the date of receipt of the representation. 4. As regards pendency of the proceedings arising from the show-cause notice, it will be open to the petitioners to make a request before the Commissioner of Central Excise to adjourn the hearing suitably so as to await the decision of the Central Government on the representation. We are sure that such a request will be considered by the Commissioner in the proper perspective when the matter comes up for hearing before the Commissioner on 16-8-2007. 5. The petition stands disposed of in the above terms. 6. Liberty to apply in case of difficulty. 7. Direct service is permitted. Unquote. The above, decisions relate to the Central Excise regime. However, the interpretation and Ratio Decidendi is applicable to the very goods under GST also. In fact many dairy companies approached GST Council seeking clarification on the classification of flavoured milk. The matter recorded in the Agenda for 31st GST Council Meeting (Volume-2) dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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