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TMI Blog2020 (6) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... Sitapura Industrial Area, Jaipur, Rajasthan (hereinafter also referred to as 'the Appellant') against the Advance Ruling No. RAJ/AAR/2019-20/27, dated 28.11.2019 = 2020 (1) TMI 1006 - AUTHORITY FOR ADVANCE RULING, RAJASTHAN. CONDONATION OF DELAY 3.1 The first issue relates to the delayed filing of appeal under Section 100(2) of the CGST Act. The said Advance Ruling dated 28.11.2019 was received by the appellant on 03.12.2019. Thus, the prescribed time limit of 30 days from the receipt of the Advance Ruling ended on 01.01.2020. However, the appeal has been submitted by the appellant electronically on GST portal on 06.01.2020 with a delay of 05 days. The appeal has been submitted physically also before this forum on 13.01.2020. As per the proviso to the Section 100(2) of CGST Act, 2017, the Appellate Authority has the discretion to extend the appeal filing time by further 30 days if satisfied with the reasons for the delayed filing of appeal. 3.2 The appellant has attributed the delay in filing of appeal to the difficulty faced by them in filing the appeal online due to technical glitches on the portal. 3.3 The appellant has requested to condone the delay as the circumstances wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant in its Appeal has, inter alia, mentioned the following grounds of Appeal: 5.1 The decision passed by the Ld. AAR is bad in law, as the same is without jurisdiction as the Ld. AAR has no jurisdiction on deciding the rate of duty on particulars goods, because the rationale and reasoning in fixing quantum of levy is a policy decision of Government(s)/GST Council and thus, is beyond the scope and domain of Ld. AAR. 5.2 While holding the goods manufactured and supplied by the appellant under HSN 19049090, the Ld. MR has failed to give any cogent reasoning much less any reasoning whatsoever in this regards. 5.3 The GST Council vide Circular No. 52/26/2018-GST dated 09.08.2018, has taken decision with regards to the taxability of Fortified Toned Milk and clarified that toned milk fortified (with vitamins 'A' and 'D') attracts NIL rate of GST under HSN Code 0401." 5.4 That whilst considering the taxability of similar kind of product i.e., Fortified Milk, milk having additional or enriched with minerals and vitamins, the Council has held that the same should be classified under the tariff heading of Milk only. The Ld. AAR, ought to have considered the decisions taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le cornflakes); cereals [other than maize (corn)] in grain form or in the form of flaked or other worked grains (except flour, groats and meal), precooked or otherwise prepared, not elsewhere specified and included" Further the relevant extract of said chapter note (Chapter 19) is as below: "For the purpose of heading 1904, the expression "otherwise prepared" means prepared or processed to an extent beyond that provided for in the heading of, or Notes to, Chapter 10 or 11." 5.9 That the Ld. AAR has classified the goods manufactured and supplied by the appellant under the Chapter heading 1904, based on the Chapter note. It is submitted that FRK by no stretch can be held to be prepared food or food otherwise prepared rather FRK cannot be held to be a food. 5.10 Because it is the basic principle that the interpretation and classification has to be given as per Chapter heading and sub-heading. Chapter 19 i.e., "Preparation of cereals, flour, starch or milk; pastrycooks' products" as the heading suggest preparation of cereals, flour, starch or milk into pastry products, bakery products or confectionary products, the same has no connect whatsoever with fortification and therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arboiled or broken remains classified in heading 1006. (iii) That on perusal of above definition, it is very clear that rice is specifically mentioned and any husked, milled, polished rice etc. will fall under 1006 and the product in question is a milled rice as per expert opinion also and as per applicant and on analysis of manufacturing process. (iv) That the Chapter19 pertains to preparations or ready to eat food and the present goods in question are not the same, Chapter Heading 1904 is an two parts end the learned authority has not considered the heading pertaining to "puffed" rice....... rice quoted with sugar or Gur, commonly known as "murki" which attracted Nil rate of duty and is addition to HSN in GST Tariff. (v) That Chapter Heading 1904 pertaining to prepared foods............... cereals or cereal products (for example cornflakes... or included and Chapter Heading 19049000 will not include FRK in it as per expert opinion and the reasons stated in their appeal. (vi) That jurisdictional High Court Judgment In D.B. Civil Writ Petition No.7091/2019 = 2019 (7) TMI 943 - RAJASTHAN HIGH COURT has issued notices on the constitutional validity of section 96(2) pertaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant with an Indication of present duty rate structure. 13. It is further observed that the Appellant's main contention is that the Fortified Rice Kernels has the essential character of Natural Rice and classifiable under HSN 1006 as Rice. To arrive at any conclusion of the said claim of the appellant, we find It imperative to go through the process of manufacturing of FRK. We find that, first, the natural rice is converted to flour form, then, the premix of vitamin-mineral is added to it. Post mix, the prepared material is passed through a machine which converts it back In to granule shape similar to rice, which are known as Fortified Rice Kernel (FRK). The FRK is packed in a 25Kg bag to be further supplied to various millers/suppliers with instruction "this product should be first mixed (blended) with traditional rice in ratio of 1:100 and then the mixed rice is cooked and consumed." Further Chapter 1006 which has been claimed by the appellant to be proper classification for FRK reads as under: 1006 RICE 100610 - Rice in the husk (paddy or rough): 10061010 --- Of seed quality kg. 80% - 10061090 --- Ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter/Heading/ Subheading/Tariff item Description of Goods (1) (2) 1904 Prepared foods obtained by the swelling or roasting of cereals or cereal products (for example, corn flakes); cereals [other than maize (corn)] in grain form or in the form of flakes or other worked grains (except flour, groats and meal), precooked or otherwise prepared, not elsewhere specified or included 190410 -Prepared foods obtained by the swelling or roasting of cereals or cereal products 19041010 ---Corn flakes 19041020 --Paws, Mudi and the like 19041030 ---Bulgur wheat 19041090 --Other 19042000 -Prepared foods obtained from unroasted cereal flakes or from mixtures of unroasted cereal flakes and roasted cereal flakes or swelled cereals 19043000 -Bulgur wheat 19049000 -Other The relevant extracts of Note to Chapter 19 are as below: '4. For the purposes of heading 1904, the expression "otherwise prepared" means prepared or processed to an extent beyond that provided for in the headings of, or Notes to, Chapter 10 or 11' 15. We also note that the appellant supplied the FRK to various millers/suppliers with instruction "this product should be first mixed (blended) with traditiona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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