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TMI Blog2022 (11) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... brandy. [It purchases extra neutral alcohol from various distilleries, food flavours, special spirits and caramel from registered dealers situated within the State of Andhra Pradesh as well as from dealers located outside the State of Andhra Pradesh]. An Assessment came to be made by the Respondent No. 1 for the Tax Period of 2017-2018, 2018-2019 & 2019-2020 in levying CGST amounting to Rs. 24,94,104/- with penalty and interest under CGST & IGST. The same is challenged on the ground that the job work charges relatable to manufacture of Alcoholic liquor in view of Notification No.6/2021-Central Tax (Rate) dated 30.09.2021 issued by the Department of Revenue, Ministry of Finance, Government of India, published in the gazette on 30.09.2021, at the rate of 18% as against 5% is illegal and contrary to law. 3. Heard Sri S. Suribabu, learned counsel for the petitioner, Sri Y. N. Vivekananda, learned Government Pleader for Commercial Tax, appearing for respondent Nos.1, 2, 4 and 5; and Sri N. Harinath, learned Deputy Solicitor General appearing for respondent No.3, and perused the record. 4. The learned counsel for the petitioner took us through the Notification, dated 28.06.2017, issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s silent as to whether it is prospective or retrospective in operation, it is an established principle of law that the same would be retrospective in operation and that the petitioner has to pay 18% tax instead of 5%. 9. The points that arise for consideration are:- "(i) Whether liquor is a food or food product? and (ii) Whether imposing tax at 18% for the job work done in relation to manufacture of liquor for human consumption at 18% is prospective in operation?" 10. POINTS:- The assessing authority, after analyzing the subject on record, held as under:- "........ The objection is examined and found to be not tenable. All the products classifiable under Chapter 1 to 22 don't attracts 2.5% tax under the Act as per entry no:26(f) of notification no:11/2017-CT (Rate) dt : 28-6-2017. Only food and food products of these chapters are eligible for this exemption. Now it is to be seen whether the alcoholic liquor for human consumption can be considered as food for the purpose of levy of tax at lower rate under the said notification. There is no definition of food and food products under the Act. However, the Supreme Court in the case of Collector of Central Excise Vs Parle Expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included, treating it as food. However, on 30.09.2021, Notification No.6/2021 came to be issued making further amendments to Notification No.11/2017 whereby, as against serial No.26, in Column (3), - (A) after item (ic) and the entries relating thereto in columns (3), (4) and (5), the following entries came to be inserted:- (3) (4) (5) "(ica) Services by way of job work in relation to manufacture of alcoholic liquor for human consumption 9 -" From the above, it is clear that the initial tax imposed @ 5% was enhanced to 18%, in respect of the nature of the work done by the petitioner. 12. It is also to be noted here that Notification No.6/2021 does not substitute earlier notification issued by the Government. It only clarifies the earlier notification by incorporating a clause, having regard to the law laid down by the Hon'ble Supreme Court. 13. It is no doubt true that only food and food products, as reflected in Chapters 1 to 22 in the First Schedule, are eligible for payment of less tax. Whether alcoholic liquor for human consumption can be considered as food for the purpose of levying tax at lower rate under the said notification? 14. It is an admitted fact that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h supply of ice cream by parlors would attract GST at the rate of 18%. 4. Overloading charges at toll plaza are exempt from GST being akin to toll. 5. The renting of vehicle by State Transport Undertakings and Local Authorities is covered by expression 'giving on hire' for the purposes of GST exemption. 6. The services by way of grant of mineral exploration and mining rights attracted GST rate of 18% w.e.f. 01.07.2017. 7. Admission to amusement parks having rides etc. attracts GST rate of 18%. The GST rate of 28% applies only to admission to such facilities that have casinos etc. 8. Alcoholic liquor for human consumption is not food and food products for the purpose of the entry prescribing 5% GST rate on job work services in relation to food and food products." 18. On the other hand, GST Council recommended that such job work would attract GST at the rate of 18%. It is now urged that the recommendations of the GST Council are not binding and they are only directions. Even assuming it to be so, a plain reading of the item, which is in dispute, would clearly show that same cannot be treated as an article of food. It cannot be treated as an item of food for many a reasons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language 'shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law." In view of law laid down by Hon'ble Supreme Court and as the notification issued herein being of clarificatory in nature it is retrospective in operation. 23. For all the above said reasons, we see no merit in Writ Petition and same is liable to be dismissed. 24. Accordingly, this Writ Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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