9911796707
TMI Blog2025 (1) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... ame in the air-conditioned premises itself - HELD THAT:- On examining the records of the instant case, it was found that the Petitioner is supplying Cake, Ice Cream and other items of food which are made to order along with certain services. Hence the Petitioner is supplying both goods and services. In order to examine as to whether the said supply satisfies the conditions of a composite supply', it is pertinent to us to discuss the provisions of Section 2 (30) of the CGST Act - Since the supplies made by the Petitioner in its outlets involve both supplies of goods and services, with one of them as principal supply i.e. supply of goods which are naturally bundled and supplied in conjunction with each other, therefore, the same has to be considered as a composite supply. Further, Restaurant Services have been defined under the purview of composite supply (in clause (b) of para 6 of Schedule-II), the relevant extract is as under. It is seen that the Petitioner is supplying items of food as a part of service and since the provision of eating in the premises is provided or the customers may take the same away from the place, the transactions under question are covered under the ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, unless a mention is particularly made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the OGST Act.) 1.0. The Assistant Commissioner, CGST Central Excise, Sambalpur 1 Division, At-Danipalli, P.O.-Budharaja, Dist-Sambalpur (Odisha) (the jurisdictional officer) has filed an appeal on dated 28.04.2021 under Section 100 of CGST Act, 2017 and under Section 100 of OGST Act, 2017 in Form GST ARA 03 before the Appellate Authority for Advance Ruling, Odisha (hereinafter referred to as AAAR ) against the Advance Ruling Order No. 06/ODISHA-AAR/2020-21 dated 09.03.2021 passed by the Authority for Advance Ruling, Odisha. 2.0. In the instant case, the Petitioner M/s Pioneer Bakers, At-Sahayog Nagar, P.O.-Budharaja, Dist-Sambalpur, Odisha having GSTIN No. 21AAQFP6408F1ZB is a partnership firm filed an application for Advance Ruling on 04.05.2020. M/s Pioneer Bakers submitted that they are operating under the Brand name of Go-Cool since the year 1997. They have established as a brand Go-Cool in the field of bakery items and especially in cakes. They have several outlets operating in the State of Odisha and offer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es while the supply of services include the supply of air conditioned place to sit and to celebrate birthday? Ans . The answer is in the Negative . Q(c) Whether the sale of handmade chocolates which are manufactured in the workshop of the Petitioner and are utilized for the purpose of providing other services such as shakes, brownies and are also retailed by packing in different containers as per the choice of the customer will be covered under the restaurant services? Ans : Yes, answer is in the affirmative Q(d) What is the nature and rate of tax applicable to the following items supplied from the premises of the Bakery Shop of the Petitioner ? (i) Items such as Birthday caps, Knife, decorative items which are bundled along with the cakes and are utilized by the Customers in the premises of the outlets. Ans . Rates applicable as per Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 as amended from time to time. (ii) Items such as Birthday Caps, Knife, decorative items which are bundled along with the cakes and are taken away by the Customers from the outlets. Ans. Rates applicable as per Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 as amended from time t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner i.e. M/s. Pioneer Bakers as they are either already running a restaurant along with their subject bakery or they are planning to do so in future. The aforesaid rulings have been obtained by way of coloring the facts, therefore the said rulings are liable to be stuck down. 3.2 Accordingly, the Appellate Authority for Advance Ruling, Odisha (AAAR) after thoroughly examining the submission made by M/s Pioneer Bakers, Jurisdictional Officers and concerned officer in their presentation during PH on dated 14.07.2021 and based upon the existing rules and regulations passed the ruling in keeping the view that the establishments/outlets/premises of the Petitioner cannot be treated as restaurant. Consequently, the activities carried out by the Petitioner from their premises/outlets cannot be considered as restaurant Service. Hence, the Appellate Authority for Advance Ruling, Odisha (AAAR) passed the Order No. 02/Odisha-AAAR/Appeal/2021-22 dated 27.07.2021 as follows: (a) The appeal made by the Jurisdictional Officer is allowed; (b) The ruling made by the Authority for Advance Ruling, Odisha vide their Order No. 06/Odisha-AAR/2020-21 dt. 09.03.2021 against the Question Nos. (a), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into consideration the said report. If this Hon'ble Authority is of the opinion that a factual report is required, then it may direct the Department officials for preparation of fresh report along during the presence of the Petitioner. (ii) That, the Petitioner is also challenging the Order dt. 27.07.2021 on the following grounds: - (a) That, the definition and scope of restaurants has been explained by various other authorities and rulings, but the Judgement passed by this Hon'ble Authority based on the definition of restaurant from the Cambridge Dictionary . The reliance on definition from Cambridge University is erroneous as the definition of restaurant is different in different dictionaries. The inconsistency in the definitions from Dictionary is evident from the fact that the Oxford Dictionary provides the definition of restaurant as a place where you can buy and eat a meal. (b) The Petitioner has cited various Judgements of different Authorities, but the Order dt. 27.07.2021 has failed to take the same into consideration. The Judgements are- (i) That the Petitioner relied on the definition of restaurant from the Judgement of In re M/s Square One Homemade Treats (GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The explanatory notes to the classification of service state that restaurant service includes services provided by Restaurants, Cafes and similar eating facilities including takeaway services, room services and door delivery of food. Therefore, it is clear that takeaway services and door delivery services for consumption of food are also considered as restaurant service and, accordingly, service by an entity, by way of cooking and supply of food, even if it is exclusively by way of takeaway or door delivery or through or from any restaurant would be covered by restaurant service. This would thus coyer services provided by cloud kitchens/central kitchens. It is pertinent to mention here that the services provided by the Petitioner are squarely covered under this definition and accordingly fall within the ambit of Restaurant services. d. That, in the case of WPIL Ltd., Ghaziabad vs. Commissioner of Central Excise, Meerut, U.P., reported in (2005) 3 SCC 73 the Hon'ble Supreme Court had held that the clarificatory notification would take into effect retrospectively as the said notification merely clarifies the position and makes explicit what was implicit. e. That, this Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctional Officer, Sri P.C. Hembram (Appellant), Asst. Commissioner, CGST, Sambalpur-I Division reiterated their para wise comments submitted vide Letter No. GEXCOM/LGL/MISC/192/2024-CGST-DIV-SMBP-I-COMMRTE-RKL/3990 dated 13.09.2024. DISCUSSION FINDINGS 5.0. We have gone through the records of the case, the ruling was given by the then Odisha State Appellate Authority of Advance Ruling vide their order No. 02/Odisha-AAAR/2021-22 dated 27.07.2021, the written submissions made by the Petitioner and the Jurisdictional Officer. We have taken note of the submission made by the authorized representatives of the Petitioner during the personal hearing through virtual mode on 07.11.2024. We have also taken into account of the submission made by the Jurisdictional Officer during the personal hearing. 5.1. We are given to understand that the Petitioner has established itself as a band in the field of bakery items and especially in cakes. The business of the Petitioner is producing and selling of bakery products viz cakes, artisan cakes, pastries, pizza, patties, sandwich, self-manufactured ice-creams, handmade chocolates, cookies, beverages etc in its various outlets operating in the state of O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (b) of para 6 of Schedule-II), the relevant extract is as under. 5.3 Entry No. 6 of the Schedule-II to the Central Goods and Services Tax Act, 2017 reads as under: The following composite supplies shall be treated as a supply of services, namely:- (a) works contract as defined in clause (119) of section 2; and (b) supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (other than alcoholic liquor for human consumption), where such supply or service is for caslı, deferred payment or other valuable consideration. By virtue of the above provision, the composite supply of goods being food or any other article for human consumption or any drink, where supply or service is for a consideration, then such composite supply shall be treated as supply of services. Since the Petitioner is supplying ice creams, cakes and other eatables, which are items for human consumption, by way of or as part of any service or in any other manner, the composite supply has to be treated as a supply of services, more specifically the 'Restaurant Service'. 5.4 As per Notification No 11/2017-Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as such which are enlisted by the Petitioner is taxable as 'supply of goods and at rates applicable as per Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017 as amended from time to time. 5.7 Since the goods as specified above are supplied and output tax is payable on the same, the Petitioner is eligible to take applicable input tax credit which is admissible as per the GST laws. 5.8 Given the observations stated above, the following issue wise rulings are passed: RULING 6.0 Based on the above discussions and findings, the following ruling is passed by the AAAR Odisha State as per the questions raised by M/s Pioneer Bakers:- Q.(a) Whether supply of Cakes, bakery items, ice creams, chocolates, drinks and other eatable products prepared at the premises of the Petitioner and supplied to the customers from the counter with the facility to consume the same in the air-conditioned premises itself covered under the restaurant services? Ans : Yes, answer is in the affirmative. Q.(b) Whether supply of items such as birthday stickers, candles, birthday caps, snow sprays etc. related items which are essentially used in birthday celebration can be classified as Composite Supply d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
