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TMI Blog2024 (8) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... 12%. Thus the petitioner is at loss by approaching before the Advance Ruling Authority, more particularly, when the Appellate Authority in the case of M/s. GB Agro Industries has taken a contradictory view than that in case of the petitioner by applying Chapter 3105/3101 having GST rate of 5% whereas in case of the petitioner the bio-fertilizers are held to be classified under Chapter 3002 having GST rate of 12%. Thus there is an anomaly in the impugned order passed by the Appellate Authority of the Advance Ruling. The impugned order dated 08.03.2021 passed in case of the petitioner by the Appellate Authority is hereby quashed and set aside and the matter is remanded back to the Appellate Authority to consider de novo afresh in accordance with law after giving opportunity of hearing to the petitioner - Petition disposed off by way of remand. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1 : Mr Anand Nainawati (5970) For the Respondent(s) No. 3 : Ms Hetvi H Sancheti (5618) For the Respondent No. 1 : Mr Raj Tanna, AGP. For the Respondent(s) No. 1,2 : Notice Served By DS. ORAL ORDER (PER : HONOURABLE MR. JU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1. The products 'RhizoMyco' and 'RhizoMyx' are marketed by the Petitioner as a mycorrhizal biofertilizer designed to enhance the growth potential of crops. These products are uniquely formulated with endomycorrhizal fungal spores and other organic-based ingredients (including humic acids, cold water, kelp extracts, vitamins and other ingredients) to provide superior nutrient and water absorption properties to the plant, provide necessary root stimulating properties and to help plants cope with environmental stress. The constituting elements of the products along with their percent bandings are listed below: RhizoMyco Constituting Elements Percentage Potassium Humate (Humic Acid) 28.95 Soluble Seaweed Extract 18.00 Amino acids 10.56 Vitamins 16.7 Surfactant 2.50 Endo Mycorrhizae powder 22.97 Ectomycorrhizal Powder 0.32 Total 100.00 RhizoMyx Constituting Elements Percentage Potassium Humate (Humic Acid) 28.70 Soluble Seaweed Extract 18.00 Amino acids 7.75 Vitamins 15.5 Surfactant 2.50 Mycorrhizae 27.55 Total 100.00 3.2. Thus according to the petitioner products RhizoMyco and RhizoMyx are a mixture of various components which are helpful in increasing the productivity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oorganisms packed in some carrier material for easy application. Tariff Entry 30029030 of the First Schedule to the Customs Tariff Act, 1975 covers 'cultires of microorganisms excluding yeasts)'. Further, the HSN Explanatory Notes for Chapter Heading 3002 specifically mentions 'cultures of microorganisms for technical purposes (e.g. for aiding plant growth)'. Since the products in question are also used for aiding plant growth, the same are classifiable under Chapter Heading 3002 and taxable at 12% under Sr. No. 61 of Schedule II of the Rate Notification. (d) The issue in the judgment of the Hon'ble Supreme Court in the case of Northern Minerals Ltd. is not applicable to the present case. In the case of Northern Minerals Ltd., the issue was whether biofertilizer warrants classification as fertilizer under Chapter Heading 3101 or under Chapter Heading 3808 as plant growth regulator, whereas the issue in the present case is whether the products are classifiable under Chapter Heading 3101 or 3002. 3.6. The petitioner being aggrieved has preferred this petition. 4. Learned advocate Mr. Anand Nainawati for the petitioner submitted that the impugned decision of the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed element which is extracted from brown coal and the process involves alkaline reaction. Bio-fulvic is also commercially known as Bio Potassium fulvate. (ii) The above indicates that the ingredients viz. Sulphur powder, rock phosphate, bentonite, gypsum, potassium humate and bio-fulvic are certainly not covered under the Animal or vegetable products. For the product to be covered under Chapter head 3101, the product should necessarily be either direct animal or vegetable fertilizers such as manure, whether mixed together and chemically treated or otherwise and those obtained by mixing or chemical treatment of animal or vegetable products. The said interpretation finds support in the technical definition of the term 'organic fertilizer' which reads as Organic fertilizers are fertilizernd derived from animal matter, animal Orgeta (manure), humanering organic fertable matter (e.g. compost and crop exsidues). Naturally occurring organic fertilizers include animal wastes from meat processing, peat, manure, slurry and guano. In contrast, the majority of fertilizers used in commercial farming are extracted from minerals (e.g. phosphate rock) or produced industrially (e.g. ammonia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures thereof with diammonium hydrogen orthophosphate (diammonium phosphate) * Other mineral or chemical fertilisers containing the two fertilising elements nitrogen and phosphorus: 3105 51 00-Containing nitrates and phosphates - 3105 59 00- Other - 3105 60 00 Mineral or chemical fertilisers containing the two fertilising elements phosphorus and potassium 3105 90-Other: 3105 90 10- Mineral or chemical fertilisers containing two fertilising elements namely nitrogen and potassium 3105 90 90 Other (v) On going through the entry of the above product in the Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 (as amended vide Notification No. 18/2017-Central Tax (Rate) dated 30.06.2017), it is found that the same appears at Entry No. 182D of Schedule- 1(on which effective rate of GST is 5% (2.5% SGST + 2.5% CGST) which reads as under: S.No. Chapter/ Heading/ Sub-heading/ Tariff item Description of Goods. 182D 3105 Mineral or chemical fertilisers 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 ..... 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