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2019 (8) TMI 1566 - AAAR - GSTClassification of goods - HSN Code - Branded Frozen Chicken supplied in a unit container - classifiable under HSN Code 0207 12 00 or not - exemption under Entry No. 9 of Notification No. 2/2017-C.T. (Rate), dated 28-6-2017 - Challenge to AAR decision - HELD THAT:- The carcass of the chicken falling under Heading 0207 to be supplied by the appellant is not in merely fresh or chilled condition. Admittedly, the carcass of the chicken is to be supplied in frozen state and therefore, the same satisfies the first requirement of leviability of GST on it - each dressed chicken (broiler) carcass subsequent to chilling and before freezing is individually packed in a primary package colourless LDPE bag and then it is put in a secondary package (HDPE Bag) and both primary and secondary packages bear the brand name ‘Gitwako’. This is accepted by the appellant also, in its submissions. Accordingly, the packages of supply meet the requirement of bearing a registered brand name. For any package (irrespective of size, nature and shape) to be a unit container, only criteria needs to be fulfilled is that it should be designed to hold a predetermined quantity or number, which is indicated on the package. The above definition nowhere specifies size, shape or nature of packages to cover the same under the scope of the phrase “unit container”. The size, shape and nature of packages depend upon various factors including type of goods to be packed. Further, we find no such restriction that unit container should carry a same quantity in each and every case - the notification does not impose condition that after putting the goods in unit containers, the supply should also be in the same form i.e. in unit containers. The instant case involves supply of packaged Branded Frozen Chicken which is an item obtained out of live bird. Looking to the fact that weight of individual Frozen Chicken may vary depending upon various factors such as natural weight of the bird in living condition and weight obtained after dressing etc., the weight of supply in different packages vary according to the number of the chickens, who may have different individual weight, supplied in such packages. Hence, packages of supply in the instant case may carry weight which may vary in a certain range due to peculiarity of the item of supply and conditions in which the item is supplied - weight in Kgs. cannot be the primary and only determinant of unit quantity because emphasis has been laid on supply of chicken in natural shape which naturally has to be quantified primarily in numbers. Number of chicken supplied being the primary determinant the weight of such supply can vary according to the weight of live bird and other relevant factors and, therefore the weight of supply in the secondary packing, though pre-determined, has to be specified in a range suitable for accommodating the weight of the birds. In any case, range of weight also happens to be a predetermined quantity and the said range combined with the one number of chicken put up in the primary package can be taken to be predetermined quantity put up in a unit container. Whole frozen chicken is being packed by the appellant in individual LDPE bag in predetermined quantities (one in number) and then it is put in a secondary package (HDPE Bag) for supply, we find that such supplies are in the nature of supply in unit containers. Thus, the requirement of phrase ‘unit container’, as laid down in the aforesaid Explanation to the Notification No. 1/2017-C.T. (Rate), dated 28-6-2017 (as amended) is satisfied and therefore, the goods supplied by the appellant to the Indian Army, are not exempted under Entry No. 9 of the Notification No. 2/2017-C.T. (Rate), dated 28-6-2017 (as amended). Frozen Chicken packed by the appellant in individual LDPE bag in predetermined number (one in number) and supplied to the Indian Army and Paramilitary forces in the HDPE bags is leviable to GST in terms of Notification No. 1/2017-C.T. (Rate), dated 28-6-2017 (as amended) and exemption from the levy of GST under Entry No. 9 of the Notification No. 2/2017-C.T. (Rate), dated 28-6-2017 (as amended) is not available to such supplies.
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