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TMI Blog2019 (8) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions. Accordingly, the packages of supply meet the requirement of bearing a registered brand name. For any package (irrespective of size, nature and shape) to be a unit container, only criteria needs to be fulfilled is that it should be designed to hold a predetermined quantity or number, which is indicated on the package. The above definition nowhere specifies size, shape or nature of packages to cover the same under the scope of the phrase unit container . The size, shape and nature of packages depend upon various factors including type of goods to be packed. Further, we find no such restriction that unit container should carry a same quantity in each and every case - the notification does not impose condition that after putting the goods in unit containers, the supply should also be in the same form i.e. in unit containers. The instant case involves supply of packaged Branded Frozen Chicken which is an item obtained out of live bird. Looking to the fact that weight of individual Frozen Chicken may vary depending upon various factors such as natural weight of the bird in living condition and weight obtained after dressing etc., the weight of supply in different packages var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 are same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central GST Act, 2017, would also mean a reference to the same provisions under Rajasthan GST Act, 2017. 2. The present appeal has been filed under Section 100 of the Central GST Act, 2017 (hereinafter also referred to as 'CGST Act') read with Section 100 of the Rajasthan GST Act, 2017 (hereinafter also referred to as 'RGST Act') by Gitwako Farms (India) Private Limited, Alwar, Rajasthan (hereinafter also referred to as 'the Appellant') against the Advance Ruling No. RAJ/AAR/2019-20/4, dated 22-4-2019 [2019 (24) G.S.T.L. 791 (A.A.R. - GST)]. Condonation of delay : 3. The first issue relates to the delayed filing of appeal under Section 100(2) of the CGST Act. The said Advance Ruling dated 22-4-2019 was received by the appellant on 26-4-2019. Thus, the prescribed time limit of 30 days from the receipt of the Advance Ruling ended on 26-5-2019. However, the appeal has been submitted by the appellant electronically on GST portal on 12-6-2019 with a delay of 17 days. The appeal has been submitted physically also before this forum on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous monitoring of Frozen chicken. 4.4 The appellant filed an application before the Rajasthan Authority of Advance Ruling, seeking clarification about the classification and HSN code of the frozen chicken when sold in packaged form and whether the same is exempt from GST under Entry No. 9 of the Notification No. 2/2017-C.T. (Rate), dated 28-6-2017. 4.5 The Rajasthan Advance Ruling Authority, vide its Ruling dated 22-4-2019 has held that the Branded Frozen Chicken supplied in a unit container is classifiable under HSN Code 0207 12 00 and such frozen chicken supplied by the appellant is not exempted under Entry No. 9 of Notification No. 2/2017-C.T. (Rate), dated 28-6-2017 (as amended from time to time). 5. Aggrieved by the aforesaid Ruling, the Appellant has preferred the present appeal before this forum. Grounds of appeal : 6. The Appellant in its aforementioned Appeal, has, inter alia, mentioned the following grounds of Appeal :- (A) The Advance Ruling Authority has erred in classifying the HDPE bags as unit container (i) As part of its supply, the meat is put in primary and secondary packaging and thus, the question which is to be examined is whether suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary for security, hygiene, preservation and transportation purposes. The Hon'ble Tribunal in the case of CCE v. Shalimar Super Foods [2007 (210) E.L.T. 695 (Tri. - Mum.] has held the goods cleared in plastic bags not sealed and not containing predetermined quantities thereon, as not cleared in unit containers for the purpose of classification of meat articles packed therein under C.E.T. sub-heading 1601.10. (vii) Sealing is not a decisive factor but the predetermined quantity. The Hon'ble Tribunal in the case of CCE, Chennai v. Rajam Condiments [2009 (245) E.L.T. 706 (Tri. - Chennai)], held that in absence of predetermined uniform quantity, the packaged goods cannot fall within the ambit of unit containers. (B) The mention of predetermined quantity is a necessary requirement to term a package as unit container (viii) The Ld. AAR had mentioned in the impugned ruling as under :- We further observe that :- The HDPE bags are designed to hold a pre-determined quantity or number, so as to carry carcass weighing between 10 to 20 kgs, as is evident from the document submitted by the applicant i.e. Specification No. 209D of Defence Food Specifications-2016, Secretariat of the Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turing of frozen chicken, the weights are not similar of various frozen chicken. This implies that by no means it can be concluded that all packages are of same quantity. (xiv) Thus, it is only after the packaging of the chicken one can know the weight and thus, there is no predetermined weight in the containers. The appellant has relied upon the Advance Ruling(s) by the Authority for Advance Ruling, Maharashtra and Authority for Advance Ruling, Haryana, in various cases including appellant's own case and Ruling by the Appellate Authority for Advance Ruling, Maharashtra in the case of M/s. Ahmednagar District Goat Rearing and Processing Co-Op Federation Ltd. Personal Hearing : 7. A personal hearing in the matter was held on 23-7-2019. Sh. Gaurav Gupta C.A. and Sh. Neeraj Garg C.A. authorised representatives of the appellant, appeared for personal hearing on 23-7-2019 on behalf of the appellant. Sh. Gaurav Gupta C.A. submitted additional written submission (narrated below) and explained the points mentioned therein. He had nothing further to add. Additional submissions : 8. Sh. Gaurav Gupta C.A reiterated the submissions made already in the Appeal Memo and the case l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant is not satisfied with the above Ruling and has therefore filed the present appeal before this forum. 12. The appellant in the Appeal Memo has submitted that the Indian Army awarded work order to them for supply of a specified amount of weight of chicken dressed chilled/frozen over a specified period of time and also described the process of manufacture, packing and supply of the same according to which the bird is slaughtered and its carcass is processed, sealed and delivered in its natural shape. During the process, each dressed chicken (broiler) carcass subsequent to chilling and before freezing is individually packed in a primary package colourless LDPE bag and then it is put in a secondary package (HDPE Bag). The appellant further submitted that various details/particulars viz. product name, firm's name and brand, net weight (if required), batch number/lot number and instructions for consumptions and preservation are printed on such HDPE bags. The package is specifically mentioned for Defence Personnel Only. Frozen chicken is then delivered in temperature controlled refrigerated vans with data logger installed for continuous monitoring of frozen chick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 0207 Meat and edible offal, of the poultry of heading 0105, (other than frozen and put up in unit containers) The above entry has since been substituted vide Notification No. 42/2017-C.T. (Rate), dated 14-11-2017 vide Entry No. 9 as under - S. No. Chapter/Heading/ Sub-heading/tariff item Description of Goods 9 0202 0203 0204 0205 0206 0207 0208 0209 0210 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 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]" 17. From a plain reading of Notification No. 1/2017-C.T. (Rate), dated 28-6-2017 (as amended from time to time), we find that all goods of Heading 0207 [other than fresh or chilled] put up in unit container and bearing a registered brand name, are leviable to GST. In this background, the following three conditions are crucial for determining the leviability of GST on the goods falling und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the submissions made by the appellant and also the Specification No. 209D of the Defence Food Specifications-2016, Secretariat of the Technical Standardisation Committee (Food Stuffs) (Directorate General of Supplies and Transport). In the para 8 of the said Specifications-2016 dealing with 'Packing of the Final product', the following is mentioned : Final product 8. Packing. Each dressed chicken (broiler) carcass subsequent to chilling and before freezing shall be individually packed into suitable sized oxygen - water impermeable heat shrink food grade colourless LDPE bags of minimum 200 gauge/50 micron. These LDPE packages will then be packed into dust proof, moisture and heat resistant food grade HDPE bags with thermal stability of minus 50°C to + 60°C, capable of holding 10 kg to 20 kg or suitable plastic crates..." 22. The instant case involves supply of packaged Branded Frozen Chicken which is an item obtained out of live bird. Looking to the fact that weight of individual Frozen Chicken may vary depending upon various factors such as natural weight of the bird in living condition and weight obtained after dressing etc., the weight of supply in diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up in a unit container. 23. We find that one dressed chicken (broiler) carcass is packed in each LDPE bag which implies that the primary package contains predetermined quantity i.e. one in number as from definition of unit container it is clear that unit container must hold a pre-determined quantity or predetermined number. These primary packages are put in HDPE bags. These HDPE bags which are used for supply of the final product i.e. Frozen Chicken, are also designed to hold a predetermined quantity, so as to carry chicken weighing between 10-20 kgs. Being individual packing of whole chicken in colourless (transparent) LDPE bag, mentioning of quantity on such LDPE bags has no meaning especially in the case where buyer and seller both are having prior knowledge of factual position. In view of the fact that whole frozen chicken is being packed by the appellant in individual LDPE bag in predetermined quantities (one in number) and then it is put in a secondary package (HDPE Bag) for supply, we find that such supplies are in the nature of supply in unit containers. Thus, the requirement of phrase 'unit container', as laid down in the aforesaid Explanation to the Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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