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TMI Blog2024 (2) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions. 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 SGST Act, 2017. 1. This Appeal has been filed by M/s. Sona Ship Management Pvt. Ltd (hereinafter referred to as "the Appellant") on 28.06.2023 against Advance Ruling Order No. 07/WBAAR/2023-24 dated 30.05.2023, pronounced by the West Bengal Authority for Advance Ruling (hereinafter referred to as the 'WBAAR'). 2. The appellant is engaged in the business of stevedoring and cargo handling in the Kolkata Dock Complex and are specialized in handling cargo such as food grain, fertilizers, coal, iron ore, break bulk/project cargo, etc. 3. The Appellant sought an advance ruling under section 97 of the West Bengal Goods and Services Tax Act, 20l7 and the Central Goods and Services Tax Act, 2017, (hereinafter collectively referred to as "the GST Act") on the following questions: (i) Whether the service of loading and unloading of imported unprocessed 'toor' and 'whole pulses' and 'black matpe' is exempt under Sl No. 54 (e) of the Notification No. 12/2017-Central Tax (Rate), Sl. No. 24 of noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of matters covered under clause (a) to (g) of the said sub-section. It was held by WBAAR that this question was related to applicability of clarification given in a circular and thus was not covered under the aforesaid clauses. Accordingly, the WBAAR did not proceed to pronounce any ruling on this issue. Submissions of the appellant and Grounds of Appeal: 6. The Appellant has filed the instant appeal against the above-mentioned Advance Ruling dated 28.06.2023 with a prayer to set aside/modify the said order or pass any such further or other orders as may be deemed fit and proper in the facts and circumstances of the case. 7. The appellant has stated that the impugned order dated 30.05.2023 has been passed by the said authority by observing that taxes should be imposed on agricultural produces namely unprocessed "toor" and 'whole pulses' and 'black matpe' and not allowing the services by way of loading and unloading of imported unprocessed "toor" and 'whole pulses' and 'black matpe' to qualify under Sl No. 54(e) of the Exemption Notification GST notification No. 11/2017-Central Tax (Rate), Sl. No. 24 and notification No. 12/2017-Central Tax (Rate), Sl. No. 54, both dated 28.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agricultural commodities. In these markets, a major part of the produce brought for sale by the producer-farmers themselves. Transactions in these markets usually take place between farmers and primary traders. In these markets, a major part of the produce is brought for sale by the producer-farmers themselves" did not discriminate the primary market by the land of production, whether Indian or Foreign market. 10. The Appellant has further stated that, it was apparent form the Pt. no. 4.6 of the said ruling that the said authority was pre-determined and has miserably failed in considering that the spirit of the legislature was intended to boost the agricultural sector of the home country and not that of a foreign land. The Appellant stated that the spirit of legislature is always to boost agricultural sector and reduce crisis of agricultural goods. Moreover, the Appellant expressed its view that agricultural produce is very much dependent on soil and weather conditions and climate change is the key factor of plant biotic and abiotic stresses, which has an adverse influence on global agriculture production. The appellant emphasized that legislature cannot intend to impose restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acking, storage or warehousing of agricultural produce are exempt from the levy to tax; (ii) the Advance Authority's ruling to bifurcate agricultural produce on the basis of 'land of produce' and their restrictive interpretation of 'primary market' was discriminatory in as much as the definition of 'primary market' does not distinguish the market as from a land whether Indian or foreign; (iii) The Advance Ruling Authority did not discuss the nature and type of the documents produced by the appellant and did not seek any additional documents to compare and conclude that the farmers of foreign land were not the same as those in India; (iv) the Analysis Report of Black Matpe, Toor, whole and Red Lentil issued by NMCI Inspections & Survey Company Pvt Ltd, contained observation to the effect that these pluses are unprocessed and unhusked; (v) the samples of Red Lentils, Black Matpe and Toor Whole produced by them before the Appellate Authority were drawn by the NMCI Inspections & Survey Company Pvt Ltd, as their marine surveyor, from the shipments of Red Lentils, Black Matpe and Toor Whole. 17.2 The revenue, on the other hand, stated that: (i) without physical verification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore pulses (dehusked or split) are also not agricultural produce. However whole pulse grains such as whole gram, rajma etc. are covered in the definition of agricultural produce." 17.3 It is evident from a conjoint reading of the definition and explanation provided in the notifications and circular referred above, that in order to determine whether a product qualifies as "agricultural produce," a correlation must be established between the stipulations outlined in the aforementioned circular and notifications. Rather than examining each of these stipulations separately, a holistic approach is required for such ascertainment. It can therefore be concluded that 'agricultural produce' denotes any produce out of cultivation (emphasis added) of plants for food, fibre, raw material on which either no further processing is done or such processing is done as is usually done by a cultivator or producer (emphasis added) which does not alter its essential characteristics but makes it marketable for primary market. Additionally, Circular No. 16/16/2017-GST dated 15.11.2017 clarifies that dehusked or spilt pulses are not "agricultural produce." 17.4 The revenue, though had submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cultivation of plants and the raising of all animal life forms. (ii) That it must not undergo any additional processing, other than those made by the cultivator or producer and its fundamental attributes must not be modified or altered. (iii) That such processing shall contribute exclusively to the product's marketability in the primary market. 17.9 For instance, toor (pigeon pea) after harvesting is subject to threshing by beating the goods. The clean seeds are then sun dried for 3-4 days for safe storage. Similarly for other pulses, harvesting and drying etc are done by the cultivator or producer themselves in a manner that does not alter its essential characteristics but only enhances its marketability in the primary market. This example reveals that it is the cultivator/producer who carries out certain post-harvest activity to make the goods marketable for primary market and thereby resulting in those goods being defined as 'agricultural produce'. 17.10 The activities of loading/unloading/storage by the cultivator/producer of such 'agricultural produce' have been granted exemption from the levy of tax in the cited notifications. 17.11 Also, once a product attains ini ..... 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