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TMI Blog2021 (4) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... ilage is categorised under para 2.3.10, above and the products under this category are not carbonated. The manufacturing process furnished by the appellant, states that the process involves, addition of Grape juice (13%) to the filtered sugar solution (86%-76% RO water and 10% Sugar) in a blending tank which is subjected to Mild Thermal Treatment (loss of water by 2 to 3%), cooled to room temperature, to which additives and preservatives as per the formulation and coloring flavoring agent are added - the products prepared from fruit juice and water or carbonated water with the minimum Fruit content of not less than 10.0 percent in cases of fruits other than Lime or Lemon juice falls under this category. In the case at hand, the product has a content of fruit juice as required under this Regulation 2.3.30, contains sugar and other ingredients appropriate to the product and is carbonated and therefore we do not find any reason to deviate from the finding of the Lower Authority that the product in hand is 'Carbonated Fruit Beverages or Fruit Drinks'. The schema of arrangement in the CTH under consideration is based on whether the product is water/ aerated water flavoured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of any matter referred to in sub-section (2) of Section 97 for advance ruling; (b). On the concerned officer or the jurisdictional officer in respect of the applicant. 3. Under Section 103 (2) of the Act, this advance ruling shall be binding unless the law, facts or circumstances supporting the said advance ruling have changed. 4. Under Section 104 (1) of the Act, where the Appellate Authority finds that advance ruling pronounced by it under sub-section (1) of Section 101 has been obtained by the appellant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void sb-initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the appellant as if such advance ruling has never been made. At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Service Tax Act would also mean a refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold as fruit juice based drinks will fall under serial number serial no.12 of schedule IV under notification no.1/2017(Rate) and thereby leviable at 14% CGST and 14% SGST on the ground that the product falls under the category of 'others under CTH 2202 10 90, is against the facts and settled proposition of Law laid down by the Hon'ble Supreme Court of India in similar and identical facts of case in the matter of M/s. Parle Agro Private Limited Vs The commissioner of commercial taxes, Trivandrum, Kerala reported in 106 VST Page 1. The Authority for Advance Ruling failed to appreciate the fact that there is a specific entry enumerating Fruit Juice Based Drinks under the GST schedule attracting 12% tax and the Customs Tariff Head (CTH) also having a similar entry. The relevant entries under the both Acts are extracted below. Chapter 2202 OF Customs Tariff Covers: 2202 99 20 .Fruit Pulp or Fruit Juice based drinks Entry under GST Act: S.No HSN Schedule Commodity Name Rate of Tax Notification 47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Addition of 10% sugar solution, 13% grape juice and other additives with purging of carbonation(0.6%) at 20 deg Celsius in beverage mix Filling at 2-4 deg Celsius, Capping 86 Shrink wrapping The product K juice Grape is made from reconstituted natural grape juice made from grape juice concentrate. It contains fruit content and solids content more than 10% and is a Thermally processed fruit beverage / Ready to serve fruit beverage complying with category 2.3.10 as per FSSAI regulations, 2011 despite having carbon dioxide as an ingredient which is used for preservation purpose only. The above-mentioned point is purely based on scientific and technical information The Authority has totally failed to follow the finding given by the Supreme Court in the case reported above while deciding Appy Fizz a fruit juice based drink. The said judgement is squarely applicable to the subject issue and the authority ought to have followed the same which is binding on them. The Authority has completely failed to consider the above judgement of the Hon'ble Supreme Court which is binding and no discussion whatsoever is made of the same inspite of the fact that it is speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both by the clarification authority as well as by the High Court and we are of the opinion that expert opinion and materials have been erroneously discarded. It is further relevant to note that revenue has not filed any material on the record before the-clarification authority or before the High Court in support of its view that product is covered under section 6(1) (a) that aerated branded soft drink? This court in several cases has observed that onus to prove that particular goods fall in particular tariff item is on the Revenue. In this context, in the judgment of this court in Hindustan Ferodo Ltd Vs Collector of Central Excise, Bombay (1997) 89 ELT 16 (SC), in paragraph 3 it was laid down: 3. It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within item 22F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed . We, thus conclude that orders of foods safety authority and expert opinion regarding process of manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the stipulated statutory time period. We find that the appeal is filed on 28.11.2019 and the authority has extended many opportunities to be heard in person as required under law. The due date for rendering the decision is fast approaching even after excluding the period which was not considered for counting in view of Notification No. 35/2020-C.T. dt. 03.04.2020 amended by 91/2020 dt. 14.12.2020. While seeking adjournments all through, the appellant has stated that since their advocate/director (admin Tax)/ Tax consultant is out of the station on that date due to personal engagements, they requested for postponement. We find that adhering to the Principals of Natural Justice, the appellant had been extended ample opportunities to present their case in person, which has not been availed by them by citing personal reasons repeatedly. We do not find any reason to still extend any further opportunity to hear in person and proceed to decide the case based on the documents available in file. DISCUSSIONS : 6. We have carefully considered the submissions made by the Appellant and the applicable statutory provisions. The appellant has sought ruling on the following questions: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry under the CTH. Similarly the Fruit Juice based drinks have a separate entry under the GST Act and hence the ruling of the Hon'ble Apex Court above, squarely covers the issue in the present case also and the Authority for Advance Ruling is bound to follow the same. The contentions are discussed as under. 8.1 We find that the appellant contends that their product is 'Thermally processed fruit beverage complying with Para 2.3.10 of the FSSAI regulation and that the lower authority has given a factually false finding that the applicant product is not thermally processed fruit juice but covered under para 2.3.30 of the regulation category and category 14.1.4.1 in the food category system in Appendix A to these regulations'. We, further find that the Lower Authority has examined the FSSAI regulation under Para 2.3.6-Thermally processed Fruit Juices, Para 2.3.30 - 'Carbonated Fruit Beverages or Fruit Drinks', 2.10.6-Beverages Non-Alcoholic-carbonated and food category 14.1.2.1-Fruit juices and 14.1.4.1 - Carbonated water-based flavoured drinks', 14.1.1.2- Table waters and soda waters and thereupon concluded that the products are covered under Para 2.3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (13%) to the filtered sugar solution (86%-76% RO water and 10% Sugar) in a blending tank which is subjected to Mild Thermal Treatment (loss of water by 2 to 3%), cooled to room temperature, to which additives and preservatives as per the formulation and coloring flavoring agent are added. This is mixed well by circulation for 3 hrs, carbonated at 20 deg Celsius (0.61%) chilled and filled at 2-4 deg Celsius, capped shrink wrapped and are sold as 'Carbonated Fruit Beverage'. From the regulation at 2.3.10, the product is to be thermally processed whereas in the case at hand, the product is subjected to mild thermal treatment for an effective loss of water by 2 to 3 % and also is a carbonated product sold as Carbonated Fruit Juice. Thus we find this contention of the appellant is not legally sustainable and therefore not acceptable. Also, Para 2.3.30 of the FSSAI Regulation (given below) specifically covers Carbonated Fruit Drinks made of Fruit Juices: 2.3.30 Carbonated Fruit Beverages or Fruit Drinks: 1. Carbonated Fruit Beverages or Fruit Drink means any beverage or drink which is Purported to be prepared from fruit juice and water or carbonated water and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 --- Aerated waters 22021020 --- Lemonade 22021090 --- Other - Other: 22029100 -- Non alcoholic beer 220299 -- Other : 22029910 --- Soya milk drinks, whether or not sweetended or flavoured 22029920 --- Fruit pulp or fruit juice based drinks 22029930 --- Beverages containing milk 22029990 --- Other Explanatory Notes as per HSN is as below: 22.02 - Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 20.09. 2202.10 - Waters, including mineral waters and aerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of heading 2009 and under the said single dash (-), CTH 2202 99 20(with a (---)) covers 'Fruit pulp or fruit juice based drink'. Thus, the heading 220299 as per the Explanatory Notes covers non-alcoholic beverages and includes Tamarind nectar rendered ready for consumption, Certain other beverages with the basis of milk and cocoa. 9.3 The schema of arrangement in the CTH under consideration is based on whether the product is water/ aerated water flavoured with fruit juices and containing sugar, etc which may be carbonated [220210] or a non-alcoholic beverage of Fruit pulp/juice-based drink [220299]. In the case at hand it is evident that the product contains fruit juice but is not 'Fruit pulp or Fruit juice based drink' but a Carbonated fruit beverage as marketed by the appellant and therefore, the product is not classifiable under CTH 22029920 as claimed by the appellant and is rightly classifiable under CTH '2202 1090-Other' as has been decided by the lower authority who have dealt in detail the applicable Food regulations as per FSSAI and the CTH 2202 readwith the explanatory notes to arrive at the said conclusion. 10. On the contention of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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