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2022 (3) TMI 1083 - AAR - GSTClassification of goods - rate of tax - supply of Ready to Serve Fruit Beverage named as ‘Apple Cola Fizzy’ and ‘Malt Cola Fizzy’ made by the applicant - applicability of N/N. 1/2017 – CT (Rate) dated 28.06.2017 as amended up to date - HELD THAT:- The burden of Classification is on Revenue. However, Revenue has neither appeared for personal hearing nor submitted its comments on the applicant’s application. In the present case, it is found that the applicant has cited classification of subject goods based on Food safety and standards regulations - the Legislature has empowered competent authority vide Section 168 CGST Act, 2017 with the power to issue Instruction or directions as per the GST scheme of law. As per CGST Act and rules framed thereunder, we do not find FSSAI empowered under GST scheme of law to issue directions/ instructions for GST Classification. The names of both the goods have the word ‘ fizzy’ which gives a reasonable impression in the market that these goods are carbonated with carbon dioxide, due to the very word ‘ fizzy’ appearing in their descriptions. We note that it is a fact that both the goods have been carbonated with carbon di oxide (INS 290). Further, both the goods have INS 211, INS 224, INS 202 as preservatives - carbon di oxide in subject beverages has given them the carbonated effect and the goods are thereby carbonated beverages. The subject goods which consist of water, sugar, sweetener, apple juice concentrate, flavours, aerated with carbon dioxide gas and presented in airtight containers fulfil the criteria to merit consideration for classification at HSN 220210 - also, there is a Tariff item at 22029920 with the description ‘fruit pulp or fruit juice based drinks’. Now it is observed that the subject goods having apple juice concentrate 1.9 % [Equivalent to 12.7% Apple Juice Reconstituted] appear to satisfy this description also and prima facie this heading 22029920 cannot be brushed aside as not applicable for subject goods. From reading of Annexure III to the recommendation of the Fitment Committee, it is noted that the Fitment Committee has cited classification of Carbonated beverages with fruit juice at HSN 220210. We, further note that GST Council has approved the recommendation of Fitment Committee. Thus, with this, we infer that competing entries of HSN 220210 and 220299 for subject goods, is answered by the GST Council decision to be 220210 for carbonated beverages with fruit juice. Apple Cola Fizzy and Malt Cola Fizzy are Carbonated Beverages with fruit juice, classifiable at HSN 22021090 - GST is leviable at 28% on said goods - GST Compensation Cess leviable at 12% on said Goods.
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