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TMI Blog2020 (12) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Directorate of GST Intelligence and hence the application cannot be admitted in terms of the proviso to Section 98(2) of the CGST Act. The Appellant has assailed this reasoning and argued that it is only when the same question is being investigated by the 'concerned officer' that the provisions of the proviso to Section 98(2) will apply; that investigations conducted by any other agency will not attract the said proviso. The Appellant has gone into great length in analyzing the intention of the legislature in framing the provisions of Section 98 and has put forth the view that it is only proceedings which are pending before the 'concerned/jurisdictional officer' which qualify for rejection in terms of the proviso to Section 98(2) - the statement recorded by the DGSTI pursuant to the summons issued, deals mainly with the classification and rate of tax of the product Flavoured Milk - Therefore, we agree with the decision taken by the lower Authority that the application for advance ruling is inadmissible in terms of the 1 st proviso to Section 98(2) of the CGST Act. The appeal filed against the non-admittance of the application for advance ruling is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has filed this appeal on the following grounds. 6.1. The Appellant submits that the AAR ought not to have dismissed/rejected the application filed for advance ruling as not maintainable; that the AAR failed to understand the intention of the Parliament while framing Section 98 of the CGST Act; that the Section 98 has to be read as a whole in order to interpret the said provision as understood by the legislature. By reading the 1 st proviso to Section 98(2) of the CGST Act in isolation, it does not give the right concept the legislature had in mind at the time of enacting the provision. By overall reading of Section 98, it is categorical that the issue which has been raised before the AAR must be pending before the jurisdictional/concerned officer for the AAR to dismiss /reject the application. 6.2. They submitted that the AAR has completely misconstrued Sections 98(1) and 98(2) and 1St proviso to sub-section (2); that in sub-section (2), the Parliament has empowered the authority either to admit or reject the application after perusing the records called for from the concerned officer; that the legislature has not mentioned the reasons for admitting or rejecting the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for advance ruling, there should not be any proceeding pending or decision taken by the concerned officer; that there is no reference to the 'proper officer' in Section 98. Therefore, summons issued under Section 70 will not come under the purview of proviso to Section 98(2). 6.5. The Appellant also submitted that mere investigation of certain facts itself cannot be called as proceedings pending; that the investigation has been undertaken by the proper officer who has not been referred to in Section 98(1) of the CGST Act; secondly, the AAR has not been empowered under Section 98 to call for records or report of any nature from the office of the DGSTI to ascertain whether the proceedings are pending or decision is taken with respect to the issue which is raised in the application. The AAR has been empowered to call for the records from the concerned officer and hence it presupposes that only if the proceedings are pending before the concerned officer, the Appellant's application can be rejected. 6.6. The Appellant also submitted that nowhere in the summons, the question raised before the AAR i.e. entry and schedule under which Flavoured Milk is taxable, is me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 98(2) be invoked; that the lower Authority has erred in reading the proviso in isolation. 7.2. He submitted that mere issuance of summons to the Appellant cannot be called as `proceedings under the Act'; that it is only when a show cause notice has been issued to the Appellant can it be said that proceedings are pending. Even assuming for the sake of argument that the proviso is applicable in the Appellant case, he submitted that there is nothing to prove that the question raised in the application was the subject matter being investigated. None of the three summons issued to the Appellant had any mention that the classification of Flavoured Milk or its rate of tax was being investigated by the authorities. DISCUSSIONS AND FINDINGS 8. We have gone through the records of the case and considered the submissions made by the Appellant in their grounds of appeal as well as the detailed submissions made at the time of personal hearing. 9. We first address the issue of admissibility of this appeal under Section 100 of the CGST Act. In terms of the said Section an appeal to the Appellate Authority for Advance Ruling may be made by either the applicant, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative, pronounce its advance ruling on the question specified in the application. (5) Where the members of the Authority differ on any question on which the advance ruling is sought, they shall state the point or points on which they differ and make a reference to the Appellate Authority for hearing and decision on such question. (6) The Authority shall pronounce its advance ruling in writing within ninety days from the date of receipt of application. (7) A copy of the advance ruling pronounced by the Authority duly signed by the members and certified in such manner as may be prescribed shall be sent to the applicant, the concerned officer and the jurisdictional officer after such pronouncement. 11. An advance ruling pronounced by the Authority under Section 98(4) may be appealed against to the Appellate Authority within a period of 30 days from the date on which the ruling sought to be appealed against is communicated to the aggrieved person. However, the Appellate Authority may, if it is satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the said period of thirty days, allow it to be presented within a further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the use of the phrase any proceedings in the 1st proviso to Section 98(2) encompasses within its fold proceedings pending either before the concerned/jurisdictional officer or before any investigative agency such as DGSTI. We also find from the records that the statement recorded by the DGSTI pursuant to the summons issued, deals mainly with the classification and rate of tax of the product Flavoured Milk . Therefore, we agree with the decision taken by the lower Authority that the application for advance ruling is inadmissible in terms of the 1 st proviso to Section 98(2) of the CGST Act. 14. In view of the aforesaid, we hold that the appeal filed against the non-admittance of the application for advance ruling is not maintainable in as much as the impugned order is not an appealable order under Section 100 of the CGST Act, 2017.Since the appeal itself is not maintainable, the question of condoning the delay in filing the appeal does not arise. 15. In view of the above discussion, we pass the following order ORDER We dismiss the appeal filed by M/s Tirumala Milk Products Pvt Ltd, 4BC 301, The Summit, 3rd Floor, 3rd Main, 4th B Cross, Kasturi Nagar 5600 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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