9911796707
TMI Blog2021 (10) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) of Section 98 of the CGST Act, 2017. The GAAR as well as this authority are the creature of the statute and are required to act and exercise the powers conferred in accordance with the provisions of the law. Once it is clear that the application of the appellant could not be admitted in view of the provisions of first proviso to sub-section (2) of section 98 of the CGST Act, 2017, neither the GAAR nor this authority has any discretion to allow such application - it is evident that the appellant has not informed the aforesaid material facts to the GAAR at any given point of time thereby willfully suppressing the fact from the Authority and obtaining the Ruling by suppressing the facts. Section 104 of the CGST Act, 2017 stipulates that any Ruling obtained by the applicant under Section 98(4) of the CGST Act, 2017 by fraud or suppression of material facts or misrepresentation of facts may be declared void ab-initio. The appellant has obtained the Advance Ruling by submitting application of advance ruling with suppression of material facts or misrepresentation of facts, and the application was not eligible to be admitted in view of proviso to sub-section (2) of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between or may be square with bars in between intersecting each other or may be of shape of any instrument, equipment, vehicle, aircraft, animal etc. The shape and size may vary but the ingredients, the proportion of ingredients, the composition and the recipe remains similar, if not exactly the same. However, with changing of time and considering the different demands of different class of consumers, innovations are made in shapes and sizes also and now Papad comes in different shapes and sizes. The Papad of different shape and size are not ready and suitable for human consumption till they are fried/baked as deemed fit and as and when deemed fit by the consumer. The appellant further submitted that their product Papad of different shapes and sizes that are neither fully cooked nor in ready to eat condition, are eligible to be classified under Chapter Tariff Heading - 1905 of the Customs Tariff Act, 1975 accordingly, vide entry at Sr. No. 96 under Not. No. 02/2017CT (Rate) dated 28.06.2017, product in question is exempted from the levy of tax. 6. The GAAR, vide Advance Ruling No. GUJ/GAAR/R/77/2020 dated 17.09.2020 , inter-alia observed that Papad has not been defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2017. 7. After issuance of the aforesaid advance ruling, the appellant, vide letter dated 10.10.2020, submitted that the GAAR has not taken into record and has not given any finding on whether the summons issued and statement taken by the Directorate General of GST Intelligence (DGGI), Surat Zonal Unit, Surat is proceedings pending under any of the provisions of the CGST Act, 2017 / GGST Act, 2017 or not. The appellant further submitted that the authorized representative started the oral representation in personal hearing before the GAAR with this thing only but nothing has been mentioned regarding this matter in the advance ruling issued by the GAAR. The appellant requested to consider the same and rectify the advance ruling after considering this fact. 8. The appellant has filed the present appeal on 03.11.2020 against the aforesaid advance ruling and further written submissions dated 17.01.2021. The appellant has challenged the advance ruling on various grounds and has submitted that the trade parlance theory has been wrongly applied by the GAAR; that when a product can be classified under a specific chapter heading, residuary entry cannot be resorted to; that Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered Chapters III, IV and V; that to be precise, Chapter IV onwards do not fall for the scope and ambit of Section 98. The appellant has cited several case laws relating to interpretation of proviso. 10.4 The appellant has submitted that the process of investigation carried out vide section 67, which falls under Chapter XIV of the CGST Act, 2017, is altogether distinct proceeding, do not fall within ambit and scope of section 98. The appellant has submitted that keeping in mind the object of AAR, the Legislature has selected specific instances as enumerated in clauses (a) to (g) and these are easily identifiable on cursory glance through the relevant Chapters III to V. 10.5 It has been submitted that there is nothing in the provisions of Section 67 of the CGST Act, 2017 which signals that the authority is empowered to classify the commodity and HSN, therefore, the exercise is futile and has nothing to do with proceedings as referred in section 98(2). The appellant has further submitted that commencement of investigation in terms of Section 67 of the CGST Act, 2017 can be said to be the start of a proceeding to safeguard the Government revenue; that in the entire search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orwarded to the concerned officer and, if necessary, call upon him to furnish the relevant records: Provided that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the said concerned officer. (2) The Authority may, after examining the application and the records called for and after hearing the applicant or his authorised representative and the concerned officer or his authorised representative, by order, either admit or reject the application: Provided that 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 an applicant under any of the provisions of this Act: 13. We have perused the application for advance ruling in Form GST ARA-01 dated 01.03.2020 filed by the appellant and observe that when the appellant submitted the application before the GAAR on 04.03.2020, they mentioned in Column 17 of Form GST ARA-01 that the question raised in the application is not (tick) (a) already pending in any proceedings in applicant case under any of the provision of the Act . As per column No. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on 17.02.2020 and recorded a statement of the partner of the appellant on the very same issue in respect of which application was subsequently filed by the appellant before the GAAR on 04.03.2020. Therefore, the application filed by the appellant before the GAAR was covered under the first proviso to sub-section (2) of Section 98 of the CGST Act, 2017. 17. The appellant has contended that the proceedings under section 67 or Chapter XIV of the CGST Act, 2017 are not covered under the term proceedings used in the first proviso to sub-section (2) of section 98 of the CGST Act, 2017. We find that this contention of the appellant is not borne out from the plain reading of the said proviso. As per the said proviso, 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 an applicant under any of the provisions of this Act. The term any used in the said proviso before the term proceedings and before the phrase the provisions of this Act leaves no room for any doubt and make it amply clear that the scope of the proviso is wide and it covers any proceedings under any of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
