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TMI Blog2020 (9) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... is Act. Hence the argument of the applicant that the issue must be pending before the jurisdictional officer is not tenable under the law. In the instant case, the Deputy Commissioner, Office of the Principal Commissioner of Central Tax, Bangalore East Commissionerate, Bangalore have reported vide their letter dated 18.08.2020 that the Directorate of GST Intelligence, Bangalore Zonal Unit have initiated the investigation against the applicant, with regard to mis-classification of flavoured milk , under Incident Report No.35/2019-20, which is under progress. DGSTI has recorded the statements of the authorised representatives of the applicant and the applicant has also paid ₹ 2.97 Lacs towards pre-deposit. Further it is an admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant sought advance ruling in respect of the following question, in relation to the classification of flavoured milk and the applicable GST rate thereon. Whether flavoured Milk is taxable at the rate of 5% under Schedule-IV of GST Act . PERSONAL HEARING: / PROCEEDINGS HELD ON 28.07.2020 4. Sri. M.N. Shankare Gowda, Advocate Authorized Representative, along with the applicant appeared for personal hearing proceedings held on 28.07.2020, appraised the facts furnished in the application and furnished the written submissions with regard to admissibility of the instant application, in support of their argument, inter alia stating as under: 4.1 The authority shall not admit the application where the question raised in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it the application if question raised in the application is already pending or decided in any proceedings in the case of particular applicant under any of the provisions of the CGST/KGST Acts. As per sub-section 1 2 the authority is empowered to call for records from the concerned authority only to know whether any proceedings are pending or decided with respect to the question raised in the application. Then only the Hon ble Authority will come to know with respect to the pendency or decision taken under the provisions of the Act with respect to the question raised in the application. By over all reading of the proviso to sub-section 2 and sub-sections, it is unambiguous that the Hon ble Authority has to take a preliminary decision eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned officer as per the guidelines issued by the Director General of Tax Payer Services, Central Board of Excise and Custom means an officer who has been designated by the CGST/SGST administration in regard to application for Advance Ruling. In normal circumstances, the concerned officer will to the officer in whose jurisdiction the applicant is located. In such cases the concerned officer will be the jurisdictional CGST / SGST officer. It is submitted that this is found in Advance Ruling Mechanism in GST, a copy of which has been produced before this Hon ble Authority by the applicant on the day the argument was addressed. So the concerned officer referred under Section 98 is nothing but a jurisdictional officer in normal circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that the proper officer has summoned the applicant to be present before him for giving evidence and to produce the documents, which is general in nature. Nowhere in the summons, the question raised before this Hon ble Authority namely, under which entry and schedule Flavoured Milk is taxable, has been referred/mentioned. There is no discussion in the summons that the records have been called for, to decide the rate of tax of Flavoured Milk , which is under dispute. The summons are absolutely silent with respect to entry and schedule of the Flavoured Milk . It cannot be made out by reading the summons, for what reason the presence of the applicant has been ordered and documents to be produced. In the absence of specific issue in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions under the KGST Act. 5.3 The admissibility of the application is governed by the first proviso to Section 98(2) of the CGST Act 2017, which reads as under: The Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of applicant under any provisions of this Act . Thus the conditions to be considered before admission of application, on the basis of above proviso are as under: i. Whether the question raised is pending or decided in any proceedings ii. Whether the question raised is pending or decided in the case of applicant iii. Whether the question raised is pending or decided under provisions of this Act 5.4 It i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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