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TMI Blog2022 (3) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... vices included in the bundle - It can be seen that the services provided by a Goods Transport Agency (GTA) by way of transport of Rice in goods carriage attracts Nil rate of GST; whereas, all other services like Clearing Forwarding, Labour Supply for loading unloading, obtaining Customs related certificates and allied/support services attract 18% GST. As the appellant intends to supply all these services as a bundle for a single consolidated rate, supply of such bundled services would be either composite supply or mixed supply , as defined under the provisions of Section 2(30) and Section 2(74), respectively, of the CGST Act, 2017. To consider any supply of service as mixed supply, there should be two or more individual supplies or any combination thereof, made in conjunction with each other for a single price where such supply does not constitute a composite supply. It is found that all the requirements of mixed supply fulfil in this case. It is clear that there is two or more individual supply of services in this case, which can be supplied separately, but the appellant intends to make such supplies as a combination or in conjunction with each other for a single price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y? - HELD THAT:- This question is not related to appellant, but it is related to the exporter, who has not filed the application for Advance Ruling before GAAR or appeal. The appellant is not entitled to raise this question as to whether their exporter client shall be eligible to claim refund of GST paid by them or not. - GUJ/GAAAR/APPEAL/2022/04 - - - Dated:- 24-2-2022 - MILIND TORAWANE AND SEEMA ARORA, MEMBER Present for the applicant : CA Avinash Poddar 1. At the outset we would like to make it clear that the provisions of the Central Goods and Services Tax Act, 2017 and Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to as the CGST Act, 2017 and the GGST Act, 2017 ) are in pari materia and have the same provisions in like matter and differ from each other only on a few specific provisions. Therefore, unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act, 2017 would also mean reference to the corresponding similar provisions in the GGST Act, 2017. 2. M/s. Shree Arbuda Transport, a partnership firm, having Principal Place of Business at Plot No.51, Office No.6, Kesar Arcade, Gandhidham (Kachchh) [here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ward supply. (4) Whether the Exporter client shall be eligible to claim refund of the GST paid by on our (appellant s) outward supply invoices? 4. In the Ruling passed by the GAAR vide Advance Ruling No. GUJ/GAAR/R/82/2020 dated 17.09.2020 , it has been inter alia observed that the issue brought before GAAR has not yet materialised so far i.e. the application for Advance Ruling had been filed on 13.10.2019 but no agreement has been reached so far by the applicant with the exporter of rice after nearly a year of filing of the application (Para 13 of Ruling refers). The GAAR has referred the provisions of Section 97 of the CGST Act, 2017, and observed that the provisions for seeking Advance Ruling made under the Act is limited to the activities conducted by the applicant only; that the applicant has asked hypothetical questions seeking Advance Ruling on an issue which had not materialised till date; that no agreement had been signed in this regard and therefore no copy had been submitted to GAAR in the instant case. Therefore, the GAAR is of the opinion that without any agreement or any other relevant documents having been provided by the applicant, it would not be possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (74) mixed supply means two or more individual supplies of goods or services, or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply. Thus, for a supply to qualify as mixed supply , a crucial condition is that it should be supplied for a single price. In the present case, the supply of subject services in the agreement is made for a single price The appellant is of the opinion that the supply is mixed supply on following grounds- Intentions of applicant is to quote a single price for the bundled service. The bundle service is not a natural bundle. Appellant will raise fixed rate consolidated invoice for supply of services and not provide Item wise / service wise bifurcation. Question-2: Applicable HSN As per Section 8(b) of CGST Act, 2017, a mixed supply comprising two or more supplies shall be treated as a supply of that particular supply which attracts the highest rate of tax. In the present case, there are few services which are exempt from GST as the export is of Rice; and few services are taxable. Among all the services in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e asked whether they require fresh hearing or not. The appellant vide their mail dated 08.01.22 informed that they would like to be heard again. Accordingly, personal hearing in the matter was held on 13.01.22 through video conferencing during which the authorized representative of the appellant reiterated the contents of the written submissions. Time limit for filing appeal 8. In the Form GST ARA-02 regarding Appeal to the Appellate Authority for Advance Ruling, at Sr.No.2, the appellant has shown the date of communication of the Advance Ruling as 21.01.2021 . In the Statement of Facts, it has been inter alia mentioned that the Ruling dated 28.09.2020 (forwarding letter date) passed by the Advance Ruling Authority was not delivered to the place of business of applicant, but, collected from the office of the Advance Ruling Authority on 21.01.2021. On going through the records of Registry, we have seen that the Ruling of GAAR was sent to M/s. Shree Arbuda Transport, Plot No. 51, Office No.6, Kesar Arcade, Gandhidham - 370201, by Registered Post A.D. on 30.09.2020. However, the envelop has been returned by Post Department to GAAR on 28.10.2020 with Remarks, addressee can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S/empty container yard to client s warehouses at various locations (5) Other allied services like: - Lift on/Lift off charges to CFS/empty container yard. - Survey Tally formality for goods loaded in container. - Obtaining Customs permission for self-sealing. (6) Obtaining Customs related certificates/clearing such as Bill of Lading, Health Certificate, Non GMO, Phytosanitary Certificate etc. with complete documentation for export shipment. 13. For more understanding, we have referred the Draft Agreement submitted by the appellant. Parties to the said Draft Agreement have been mentioned as M/s. Supple Tek Industries Pvt. Ltd., Amritsar (referred to as Principal ) and M/s. Shree Arbuda Transport, Gandhidham (referred to Service Provider ). The services to be provided by the service provider / appellant have been described as under: QUOTE ANNEX A-I: SCOPE OF WORK The Service Provider shall provide end to end solution for the Principal. Such a package of services shall comprise of the following broad categories: MAIN SERVICES 1. Agency Service :- Clearing and Agency Services related to Export/Import Consignment. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority and Shipping Line for taking delivery of containerized cargo to be exported. viii. Arrange trucks for transportation of commodities, inspect inside of the trucks, clean and disinfect, and ensure suitability for carrying commodities without incurring damage. ix. Make arrangement for Weighment of container load. x. Update Principal on daily dispatch/delivery status of commodities mentioning truck details with contact numbers. xi. Maintain effective coordination with all stakeholders, such as independent Surveyor, Shipping Agent/Vessel Agent, Port Customs Authority and Consignee. xii. Off-load commodities at the final destination points (Port/ CGS) with utmost care, taking appropriate measures during the rainy season to prevent the commodities from getting wet. xiii. Provide final Container dispatch status (vessel wise) reports to Principal. xiv. Submit Provisional Claim to shipping agent for any ocean/marine losses of commodities such as short/excess landing, and damaged commodities (torn, slack, wet, moldy, etc.) within 72 hours after discovering potential loss. xv. Submit invoice duly signed by authorized representative for payment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and confirmation of both the parties. - Above charges includes container movement services. - Diesel rate shall be considered on 1st and 16th of every month. However, the above rates are subject to change based on various cost factors like changes in Labour rate, lift on rate, transportation rate etc. with the mutual approach of the Principal and Service Provider. For the Service Provider By: Mr. Himmatlal Khandor (Partner) For the Principal Mr. Mohd. Yaseen (Authorized Signatory) UNQUOTE 15. After going through the above-mentioned submissions and draft agreement, it is clear that the appellant intends to provide bundle of services in conjunction with each other for a single rate i.e. per container rate. The rate would vary depending upon the locations and price of diesel. However, it is not the case that the appellant would charge separately for different constituent services included in the bundle. 16. Classification of the constituent services included in the bundle of services in this case, as per the Scheme of Classification of Services [as given in the Annexure to Notification No. 11/2017-Central Tax (Rate) dated 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se classified 17. After going through the nature of services to be provided by the appellant, we find that the applicable rates of GST on such constituent services, if provided separately, are as follows: TABLE Heading or Service Code (Tariff) Nature of service to be provided by the appellant Rate (per cent.) Conditions Notification No. with Sr.No. CGST SGST IGST Heading 9965 or Heading 9967 (i) Services provided by a Goods Transport Agency (GTA) by way of transport in a goods carriage of - (a) agricultural produce; ... ... ... ... ... (d) milk, salt and food grain including flour, pulses and rice; ... ... ... ... ... Nil Nil Nil Nil Sr.No.21 of Notification No. 12/2017-Central Tax (R) dated 28.06.2017. Sr.No.21 of Notification No. 12/2017-State Tax (R) dated 30.06.2017. Sr.No.22 of Notification No. 9/2017-Integrated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and physical wellbeing services; and other miscellaneous services including services nowhere else classified). 9% 9% 18% --- Sr.No.35 of Notification No. 11/2017-Central Tax (R) dated 28.06.2017. Sr.No.35 of Notification No. 11/2017-State Tax (R) dated 30.06.2017. Sr.No.35 of Notification No. 8/2017-Integrated Tax (R) dated 28.06.2017. Service Code (Tariff) 999799 Other services nowhere else classified 9% 9% 18% --- 18. From the above Table, it can be seen that the services provided by a Goods Transport Agency (GTA) by way of transport of Rice in goods carriage attracts Nil rate of GST; whereas, all other services like Clearing Forwarding, Labour Supply for loading unloading, obtaining Customs related certificates and allied/support services attract 18% GST. As the appellant intends to supply all these services as a bundle for a single consolidated rate, supply of such bundled services would be either composite supply or mixed supply , as defined under the provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plies or any combination thereof, made in conjunction with each other for a single price where such supply does not constitute a composite supply. We find that all the requirements of mixed supply fulfil in this case. It is clear that there is two or more individual supply of services in this case, which can be supplied separately, but the appellant intends to make such supplies as a combination or in conjunction with each other for a single price. This supply does not constitute a composite supply, as discussed hereinabove. We find that the appellant intend to supply of various different services in conjunction with each other for a single price, which is an important requirement for treating this supply as mixed supply. Thus, we agree with the contention of the appellant that their proposed supply of bundled services for a single price would be treated as mixed supply under the provisions of CGST/GGST Acts. 21. Now, coming to the question regarding rate of GST on such mixed supply, we reproduce Section 8 of the CGST Act, 2017, as under: SECTION 8. Tax liability on composite and mixed supplies. - The tax liability on a composite or a mixed supply shall be determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has contended that the entire bundled service is being discharged at 18%; that the supplies which would have enjoyed exemption (transportation of rice by GTA as a separate supply) is also being taxed at 18% (under mixed supply); therefore they would not rendering any exempt supplies; and therefore they wish to claim ITC. The apprehension of the appellant is that part ITC should not be denied by tax authorities on the ground that the individual supply of transportation of rice by GTA attracts Nil rate of GST. In this case, the appellant has chosen to provide various services in conjunction of each other for a single price and such services are to be treated as mixed supply, as held by us. The single price to be charged by the appellant attracts the highest rate of 18% and the said single price includes the value of transportation of rice. So, there should be no question of denying ITC merely on the ground that one of the constituent service of mixed supply attracts Nil rate of tax, if provided separately. 25. Now coming to the last question as to whether the exporter client would be eligible to claim refund of GST paid by appellant on their outward supply. We find that this qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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