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TMI Blog2023 (11) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tax 9% CGST 9% SGST. 2. HSN Code of -Bio kavach and its Rate of tax - Serial No 453 of Schedule III of Notification No. 1/2017. Rate of Tax 9% CGST 9% SGST. 3. HSN Code of Immunity Booster - Avinja 7 and its Rate of tax - Serial No 453 of Schedule III of Notification No. 1/2017. Rate of Tax 9% CGST 9% SGST. - SRI S.V. KASI VISWESWARA RAO, AND SRI SAHIL INAMDAR, I.R.S., MEMBER [ORDER UNDER SECTION 98(4) OF THE CENTRAL GOODS AND SERVICES TAX ACT, 2017 AND UNDER SECTION 98(4) OF THE TEALANGANA GOODS AND SERVICES TAX ACT, 2017.] ****** 1. M/s. Avinja Biotechnologies Private Limited. H.No. 14, AOC Center, Plot No 3-43-141, Mohammedi Enclave, Wellington Road, West Marredpally, Hyderabad, Telangana- 500026(36AATCA9073F1Z7) has filed an application in FORM GST ARA-01 under Section 97(1) of TGST Act, 2017 read with Rule 104 of CGST/TGST Rules 2. At the outset, it is made clear that the provisions of both the CGST Act and the TGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to any dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the TGST Act. Further, for the purposes of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilizing bacteria 5.2*10 Cells/ml Azadirachtaindica extract, Phyllanththemniruri, Cymbopogonciratthem. That they request the AAR to let them know the classification of the above product either HSN Code 30039011 (GST rate 12%) or HSN Code 31010092 (GST rate 5%) to be used ii. That their Second Product under the bio fertilizer-Bio kavach which helps in nutrients balance of soil and restores fertility, improves the humthem content of the soil. Composition: Bacillthemspp, Actinomycetes, Macro and Micro nutrients. That they request the AAR to let them know the classification of the above product either HSN Code 30039011 (GST rate 12%) or HSN Code 31010092 (GST rate 5%) to be used iii. That their product under the Immunity Booster-Avinja 7 is a herbal supplement made from herbs and Biopharmaca Extraction. Ingredients: Graviola Leaf Extract, Phyllanththemniruri, GarciniaMangostana Extract, TinosporaCordifolia water That they request the AAR to let them know the classification of the above product either HSN Code 220299 (GST Rate 18% or HSN 30039011 (GST rate 12%) to be used. In their submission they have state their understanding of the legal position as follows: a. With respect to Bio Fer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s containing two or three of the fertilising elements nitrogen, phosphorus and potassium; other fertilisers; goods of this Chapter in tablets or similar forms or in packages of a gross weight not exceeding 10 kg, other than those which are clearly not to be used as fertilizers. II 56 28 or 38 Micronutrients, which are covered under serial number 1(g) of Schedule 1, Part (A) of the Fertilizer Control Order, 1985 and are manufactured by the manufacturers which are registered under the Fertilizer Control Order, 1985 As seen from the above there is no specific entry for Bio fertilizer in the Notification 1/2017 dt: 28.07.2017. The Hon ble Supreme Court of India in the case of B Prabhakar Rao v State of AP AIR 1986 SC 120 held that when internal aids are not forthcoming, we can always have recourse to external aids to discover the object of the legislation . In Doypack Systems (P) Ltd v. UOI AIR 1988 SC 782, it was observed that Dictionaries, earlier acts, history of legislation, parliamentary history. parliamentary proceedings, state of law as it existed before when the Act was passed, the mischief sought to be suppressed and the remedy sought to be advanced by the Act are external aid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... altered through microbiological decomposition process; As seen from the above definitions in the THE FERTILISER (CONTROL) ORDER 1985, the HSN 31010092 comprising of animal or vegetable fertilizers qualify to be organic fertilizer and not bio fertilizer as argued by the applicant and therefore their products of bio fertilizers do not fall under this HSN. Bio fertilizers are not specified either in schedule I or schedule II as seen from the above table hence this is a commodity which is not specified in Schedule I, II, IV, V or VI of the Notification No. 01/2017 dt. 28.06.2017 and therefore would fall in residuary entry at Serial No. 453 of Schedule III and attract the tax at the rate of 9% CGST 9% SGST each. Further the explanation to Notification No. 01/2017 elaborates the procedure to interpret the entries in the schedules of the Notification as follows: Explanation (1) In this Schedule, tariff item , heading , sub-heading and Chapter shall mean respectively a tariff item, heading, sub-heading and Chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). (2) The rules for the interpretation of the First Schedule to the said Customs Tariff Act, 1975, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products which would be purely for the care of skin and certain other products would be clearly medicament and such cases may not pose any problem. The issue of determination as to whether a particular product falls in Chapter 30 would arise in those cases where certain products have the shades or qualities of both, namely, skin care as well as cure of skin diseases. In such cases, the necessary exercise requires to be undertaken. Whenever product has curative or prophylactic value as well, but the Department still wants the said product to be brought under Chapter Heading 3304.00, onus is on the Department to show that it is not medicament. For this, it will have to demonstrate that curative or prophylactic value is only subsidiary in nature or that the product is covered by the description under chapter notes 5, namely, either it is chiropody or barrier cream to give protection against skin irritants. If the Department fails to discharge this onus, the product has to be treated as medicament and would be covered under Chapter 30. The Hon ble Apex Court in the above case also observed that What is more relevant is the purpose for which the product is used namely, functional test ..... X X X X Extracts X X X X X X X X Extracts X X X X
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