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AGRICULTURAL PRODUCE UNDER GST LAWS

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AGRICULTURAL PRODUCE UNDER GST LAWS
Mr.M. GOVINDARAJAN By: Mr.M. GOVINDARAJAN
June 28, 2022
All Articles by: Mr.M. GOVINDARAJAN       View Profile
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Introduction

 ‘Agricultural produce’ generally means any produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fiber, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator. 

Definition

The expression ‘agricultural produce’ is defined under explanation (vii) under Para 4 of the Notification No.11/2017 - Central Tax (Rate), dated 28.06.2017 as any produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fiber, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market.

Elements

‘Agricultural Produce’ as per the definition given in above the Notifications should necessarily have three essential elements:

  • It must be a produce out of cultivation of plant and rearing of all life forms of animals.
  • On which no further processing is done or such processing is done as usually done by a cultivator or producer which does not alter its essential characteristics i.e., produce must broadly retain its physical and chemical form/constitution.
  • Most importantly the processing done should be such as is usually done by a cultivator or producer which should only help it to attain marketability at primary market i.e., the definition limits the scope of processing and allows only those activities which help the produces to attain the condition of its first marketability in primary market.

After it attains the condition of first marketability the definition restricts all other further processes on the produce for further sale to be termed as ‘Agricultural Produce’.   Once the products attains its first marketability for the primary market all other subsequent processes on produce leading to value addition and subsequent sale belong to the realm of secondary market thereon refraining the produce to fall under the category of ‘Agricultural Produce’ as defined in Notification.

Taxability

In Notification No. 02/2017- Central Tax (Rate), most of the items related to agricultural produce or of the said category has been classified under the goods listed from Sl. Nos. 1 to 137 of Schedule of Goods relates to Chapter Heading Nos. 101 to 8201 has been declared as NIL rated.  The produce out of cultivation or produced by agriculturist is exempted from tax.

Advance Rulings on ‘Agricultural produce’

Some rulings given by the Authority for Advance Ruling/Appellate Authority for Advance Ruling in respect of ‘agricultural produce’  are given below for the benefit of readers-                                                                 

Cereals

  • Whether all cereals, pulses, spices, copra, jaggery (Gur), groundnuts (with or without shell), groundnut seeds, turmeric dried and ginger dried (soonth), cashew, almond, kismis, jardalu, anjeer (fig), date, ambli foal are covered under the definition of ‘Agriculture Produce’ as defined under Notification No. 11/2017 -Central Tax (Rate) dated 28.06.2017?
  • If the answer to above point is affirmative, then whether the taxability of goods mentioned above point changes if they are received for storage either in bulk packing or small or retail packing with or without name or brand name which is not registered under the Trade Mark Act, 1999 where no further processing is done or such processing is done which does not alter its essential characteristics but makes its marketable for primary market?

The applicant contended that ‘Agricultural Produce’ includes all cereals, pulses, fruits, nuts and vegetables, spices, copra, sugar cane, jaggery, raw vegetables fibers such as cotton, flax, jute, indigo, unmanufactured tobacco, betel leaves, tendu leaves, rice, coffee and tea but does not include manufactured products such as sugar, edible oils, processed food and processed tobacco, and intra-State support services to agricultural produce by way of loading, unloading, packing, storage or warehousing of agriculture produce is chargeable at NIL rate.  There is no tax on agricultural produce unless the goods are branded with registered trademark.  Thus, the services related to storage of the goods mentioned above, either in bulk packing or small or retail packing with or without name or brand name, which is not registered under the Trade Mark Act, 1999 where no further processing is done or such processing is done which does not alter its essential characteristics but makes it marketable for primary market shall be charged at NIL rate as the same have not been branded with a registered trademark.

The Authority for Advance Ruling ruled that-

  • Pulses (commonly known as ‘Dal’) (de-husked or split), jaggery, processed dry fruits such as processed cashew nuts, raisin (kismis), apricot (jardalu), fig (anjeer), date, tamarind (ambali foal), shelled groundnuts / groundnut seeds, and copra are not agriculture produce as defined under Notification No. 11/2017 -Central Tax (Rate). ‘Cereal’ on which any processing is done as is not usually done by a cultivator or producer will fall outside the definition of agriculture produce.
  • Processed spices including processed turmeric and processed ginger (soonth), are not agriculture produce as defined under Notification No. 11/2017 - Central Tax (Rate). However, groundnuts with shell, turmeric and ginger on which no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but make it marketable for primary market would fall within the definition of agriculture produce.
  • Whole pulse grains such as whole gram, rajma etc. and ‘cereal’ on which no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market, fall under the definition of agriculture produce as defined under Notification No. 11/2017 - Central Tax (Rate).

Black tea

  • The green tea leaves plucked from the plants are not fit for the human consumption. It cannot be sold in the open market for human consumption.  The raw tea leaves are withered by exposure in the shadow of the sun or by heating in trays until pliable.  The tea leaves normally undergo the following standard procedures prior to procurement-
  • Tea leaves are plucked from the tea plant.
  • Thereafter the leaves are rolled by hand or machine in order to break the leaf cells and liberate the juices and enzymes.
  • Finally the leaves are completely dried either by further exposure to the sun, over fires, or in a current of hot air.
  • Then the leaves are fermented in baskets, glasses and in clothes.
  • Thereafter the leaves are subjected to grading with sieves of various sizes.
  • The leaves are finally roasted with charcoal for obtaining suitable flavor and color.
  • Then the said tea is packed in the bulk packs.

All the above processes are necessary for the purpose of saving the tea leaves from perishing.   In case the above process is not carried out immediately the entire tea leaves would be perished.  The process, as indicated above, at no point of time, crossed that limit and robbed the tea leaves of their character of being and continuing as such substantially.

Whether the black as processed above would amount to ‘agricultural produce’?  The expression ‘agricultural produce’ is defined under clause 2(d) of Notification No. 12/2017 - Central Tax (Rate), dated 28.06.2017 as any produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fibre, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market.

Tea

The appellant constructed warehouses at various places including at Fursungi, Pune. Unilever India Exports Limited produces tea of various qualities in bulk either from public tea auctions or directly from the manufacturers of tea in 50 Kg bags and stores them in the said warehouse.  The said procurement was undertaken during season.  Unilever undertook blending and packing of tea at the warehouse and exported to various overseas countries.

The appellant was of the view that the tea, procured in bulk, either from public tea auctions or directly from manufacturers of tea is an agricultural produce as defined in Notification No. 12/2017 - Central Tax (Rate), since the tea is not losing the essential characteristics of tea. Therefore the tea is exempted from GST. However the appellant intended to get advance ruling in this case.

The exemption benefit claimed by the appellant was rejected by the Authority for Advance Ruling. Therefore the appellant filed the present appeal before the Appellate Authority for Advance Ruling.  The Appellate Authority for Advance Ruling considered the moot issue in this appeal is whether the tea leaves of the various qualities which are precisely black tea, procured in bulk either from public tea auctions or directly from manufacturers of tea in 50 kg bags after undergoing various stages of the processes by the appellant’s client Unilever for storage in the warehouse owned by the appellant are agricultural produce or otherwise.

The Appellate Authority for Advance Ruling observed that the process meant for black tea are mostly carried out by the manufacturers after procuring the green tea leaves from the producers of the green leaves. Thus as a result of the above enumerated processes, the tea leaves acquire the new flavor and color and are now suitable for the human consumption.  The nomenclature of the tea has undergone change from the green tea leaves to the black tea. The client of the appellant stated that their main and the sole ingredients are black tea of various qualities, which are blended in the specific proportion as per the specific orders received from their respective customers before packing the same.

The Appellate Authority for Advance Ruling inferred that the product being stored in the warehouse has got different name, character and uses from the green tea leaves which are cultivated in the tea gardens.  The Appellate Authority for Advance Ruling  further inferred that there is no doubt that the processes or treatments in which are performed upon the green tea leaves amounts to manufacture as per definition under section 2(72) of Central Goods and Services Tax Act, 2017.  The said fact is acknowledged by the appellant.

The Appellate Authority for Advance Ruling also analyzed the definition of ‘agricultural produce’ under clause 2(d) of the Notification No. 12/2017 - Central Tax (Rate), dated 28.06.2017.  The Appellate Authority for Advance Ruling listed out the following two parameters which will determine any goods to be the agricultural produce or otherwise-

  • It should be a produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fiber, fuel, raw material or other similar products.
  • It should be subjected to either no further processing or such processing by the cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market.

The Appellate Authority for Advance Ruling observed that as a result of the specific manufacturing processes, carried out by the manufacturers on the original agricultural produce, i.e., green tea leaves for making them suitable for consumption by imparting the desired flavor and color by the above discussed methods. All these processes, which change the characteristics of the green tea leaves, are carried out by the manufacturers and not the cultivators or the producers of the green tea leaves as envisaged under the definition of the agricultural produce. Thus the manufactured products do not fulfill the above prescribed criteria of the agricultural produce. The Appellate Authority for Advance Ruling held that the black tea cannot be considered as agricultural produce.

The Appellate Authority for Advance Ruling rejected the contention of the appellant that the said processes carried out on the green tea leaves do have bearing on the taste and color of the tea does not alter the characteristics of the tea.  If tea stored in appellant’s warehouse is agricultural produce, the same should be covered under the Notification No. 12/2017 - Central Tax (Rate).  But the processes carried out by the client of the appellant, as submitted by the appellant, leaves no doubt in one’s mind that they have lost the nature and characteristics of an agricultural produce in terms of definition of ‘agricultural produce’ and are ready for secondary or tertiary market.  The intention of the legislature has never been to exempt agricultural produce at every stage. Had it been the case, then all agricultural produce processed or manufactured by the person other than the cultivator or producers, would have been exempted from GST. The Appellate Authority for Advance Ruling held that there is no reason to interfere with the order passed by the Authority for Advance Ruling and rejected the appeal.

Dry chilli

The Authority for Advance Ruling ruled that the product in question is produced out of the plants and used for food or raw materials.  The product obtained by drying chillies to make it marketable for the primary market and this process is not altering its essential characteristics.  The dry chillies is covered under definition of ‘agricultural produce’ in terms of definition art para 2(d) of Notification No.12/2017 - Central Tax (Rate).

Logging of trees

  • IN RE: M/S. DEPUTY CONSERVATOR OF FORESTS [2019 (9) TMI 824 - AUTHORITY FOR ADVANCE RULING, KARNATAKA], the logging of trees services received by the applicant is not related to the management of forest, i.e., planting, managing, caring, in relation to cultivation of plants, but of felling of trees and converting them into marketable timber or firewood.  The activity of the Government Corporation done to the Forest Department is independent growing of trees and hence what applies to naturally grown trees applies to trees which are nurtured, managed and protected by Forest Department. 

The Authority for Advance Ruling ruled that the activity of logging does not yield agricultural produce.

Imported yellow peas

It sought an advance ruling on whether such imported yellow peas are ‘agricultural produce’ and services by way of handling of it is eligible for exemption under Sl. No. 54(e) of Notification No. 12/2017 - Central Tax (Rate), dated 28.06.2017 (corresponding State Notification No. 1136 - FT, dated 28.06.2017) as amended from time to time.

The Authority for Advance Ruling observed that the exemption notification No. 12/2017 - Central Tax (Rate), the term agricultural produce is restricted to produce arising out of cultivation of plants on which no further processing has been carried out except by the farmer at field to make it marketable in primary market without altering essential character of such produce.  The primary market is understood in common parlance to be Mandi where farmer brings his produce for selling without processing or processing. 

The Authority for Advance Ruling ruled that the goods imported from foreign land not covered under aforesaid exemption is admissible to agricultural produce.

The applicant filed appeal against the findings of the Authority for Advance Ruling before the Appellate Authority for Advance Ruling decided on 23.12.2019. 

The Appellate Authority for Advance Ruling observed that this particular consignment of raw whole yellow peas was harvested in foreign land and the concerned primary market is in foreign land.  The spirit of the legislature was to boost the agricultural sector of the home country and not that of a foreign country. 

The Appellate Authority for advance Ruling upheld the ruling given by the Authority for Advance Ruling and dismissed the appeal filed by the appellant.

Oil seeds and pulses

  • IN RE: RAJASTHAN RAJYA SAHAKARI KRIYA VIKRAYA SANGH LTD. [2019 (4) TMI 1497 - AUTHORITY FOR ADVANCE RULING, RAJASTHAN], the applicant is a co-operative society registered under the Rajasthan Co-operative Societies Act, 1953.  The applicant deals in trading in various items and providing services as commission agent to other registered taxable persons.  The applicant carries its business activities of providing services to agriculturist for buying their agriculture produce and selling those produces in the open market.  The applicant also helps to the National Agriculture Co-operative Marketing Federation of India Limited’ (NAFED) for procuring agriculture produce from farmers and supply them as per their instructions. 

The applicant sought for advance rulings on the following questions-

  • Whether the applicant is liable for charging GST on providing service for procurement of agricultural produce i.e., oilseeds and pulses from farmers either itself or through Kray Vikray Sahakari Samithi on behalf of its principal i.e., National Agriculture Co-Operative Marketing Federation of India Limited’ (NAFED)?
  • Whether the applicant is liable for charging GST on its outward supplies of goods as well as services after having procured through Kray Vikray, Sahakari Samiti according to the purchase order of NAFED?

The Authority for Advance Ruling ruled that the applicant is not liable for charging GST on providing service for procurement of agricultural produce from farmers either itself of through KrayVikray Sahakari Samiti on behalf its principal as the same is exempted for a Commission Agent of agricultural produce under Sl. No. 54 of Notification No. 12/2017 -Central Tax (Rate), dated 28.06.2017.

The Authority for Advance Ruling also held that the applicant is not liable for charging GST on outward supply of pulses (other than branded) through Kray Vikray, Sahakari Samiti according to the purchase order of the NAFED as the same is exempted under Notification No.02/2017 - Central Tax (Rate), dated 28.06.2017. 

The applicant is liable for charging GST on outward supplies of oilseeds (other than seed quality) through Kray Vikray, Sahakari Samiti according to the purchase order of the NAFED and attracts 5% GST (2.5% CGST + 2.5% SGST) in accordance with the Notification No. 01/2017 - Central Tax (Rate), dated 28.06.2017.

Cleaning of Agricultural produce

  • IN RE : M/S RARA UDHYOG [2018 (7) TMI 884 - AUTHORITY FOR ADVANCE RULING - RAJASTHAN], the applicant is engaged in the activities of cleaning the various agriculture produce like saunf (fennel), Dhaniya (coriander), jeera (cumin seeds) etc., or the like goods which are brought to them by the farmers or by the traders.  The said agriculture produce contains dust particles, certain small pieces of stones, dust, mud and other impurities etc.  The appellant is having cleaning plant and they remove the various impurities but do not change the essential character of the agriculture produce but make the product marketable for primary market.

The applicant sought for an advance ruling as to whether the activity of cleaning the above produce is exempted under Sl. No. 24(i)(i)(c) and 24 (i)(iii) of Notification 11/2017 - Central Tax (Rate), dated 28.06.2017 and Entry No. 54(c) and 55 of Notification No. 12/2017 - Central Tax (Rate), dated 28.06.2017.

The Authority for Advance Ruling, after perusing the records submitted by the Department and the applicant ruled that the activity of the applicant is not covered by Entry No.  24(i) (i) (c) and 24 (i) (iii) of Notification 11/2017 - Central Tax (Rate), dated 28.06.2017 and Entry No. 54(c) and 55 of Notification No. 12/2017 - Central Tax (Rate), dated 28.06.2017 and will not attract NIL rate of duty.

The applicant filed appeal against the rulings given by the Authority for Advance Ruling before the Appellate Authority for Advance Ruling [IN RE: M/S. RARA UDHYOG - 2019 (3) TMI 918 - APPELLATE AUTHORITY FOR ADVANCE RULING, RAJASTHAN]. 

The appellant contended that the Authority for Advance Ruling had not taken into account of the provisions of Finance Act, 1994 which exempted the services discussed in the application for Advance Ruling. 

The Appellate Authority for Advance Ruling ruled that the activities carried out by the appellant are carried out in a factory using specialized machines and not in agricultural farm and after such activity undertaken, the products become marketable for secondary market and can be consumed directly by general public.  The same is not exempted from GST though the process undertaken did not alter essential characteristics of such agricultural produce.

The Appellate Authority for Advance Ruling further ruled  that the activity carried out in a factory using specialized machines, cannot fall under intermediate production process as job work in relation to cultivation of plants which covers operation such as harvesting, threshing, plant protection, testing and supply of farm labor, etc., carried out at agricultural farm.  Therefore the said cleaning activity is not exempted from GST under 24 (i) (iii) of Notification 11/2017 - Central Tax (Rate), dated 28.06.2017 and Entry No. 54(c) and 55 of Notification No. 12/2017 - Central Tax (Rate), dated 28.06.2017.

Goods come for storage

Group A: Fennel (Saunf), Coriander (Dhaniya), Cumin Seeds (Jeera), Carom Seeds (Ajwain), Fenugreek Seeds (KasooriMethi), Mustard Seeds (Sarson), Brown Mustard Seeds (Rai), Nigella Seeds (Kalonji), Poppy Seeds (Posara Dana);

Group B: Turmeric (Haldi), Dried Ginger (South), Dates (Khajoor), Dry Dates (Chhuhara);

Group C: Tamarind (Imli);

Group D: Dry Mango (Amchur), Kathodi, Dry Gooseberry (Dry Amla), Dry Water -Caltrop/Water Cashewnut (SukhaSingadha), Dry Peas (SukhaMatar);

Group E: Cinnamon (Dalchini), Gum(Gond, Arjuna Chhal;

Group F: Groundnuts (Mungphali), Copra Gola (Coconut);

Group G: Dry fruits such as Fig (Anjeer), Almond (Badaam). Walnuts (Akhrot), Pistachio (Pista) . Lotus Seeds Pop (PhoolMakhana) etc.

The applicant contended that being product of agriculture, it contains certain small pieces of stones, dust, mud and other impurities etc. The products are required to be clean therefore aforementioned impurities are removed by cleaning which is either done by the cultivator or traders before it comes for storage purpose.

The products which are sold by cultivator and stored at the applicants cold storage, remains the same agriculture product except the difference that farmers sold the goods with small pieces of stones, dust, mud, impurities etc., and the trader who bought the goods and arranges for the cold storage of the goods gets it cleaned prior to storage so that unnecessary storage of waste product should not be done.

            The Authority for Advance Ruling ruled that-

  • Goods mentioned under Group A fall under the definition of Agricultural Produce in terms of the notification No. 11/2017 - Central Tax (Rate) and so supply of cold storage service in relation to these is exempt from the levy of GST . However if processing is done on these products as is not usually done by a cultivator or producer at farm level, then these would fall outside the definition of agricultural produce as given in the aforesaid Notification and in that cast-supply of cold storage service in relation to these would remain chargeable to GST.
  • Goods mentioned under Group B to G are not agricultural produce in terms of the aforesaid notification and so the supply of cold storage service in relation to these would remain chargeable to GST.

The applicant filed an appeal before the Appellate Authority for Advance Ruling against the findings of the Authority for Advance Ruling.  The Appellate Authority for Advance Ruling upheld the rulings given by the Authority for Advance Ruling.

Storage of eggs

The applicant sought for advance ruling on whether the charges received by the cold storage for providing service of storing of eggs, which is produce of rearing of animals/poultry farming in cold storage is exempted from payment of GST in terms of Sl. No. 24 of Notification No. 11/2017 - Central Tax (Rate) and Sl. No. 54 of Notification No. 12/2017 - Central Tax (Rate), dated 28.06.2017.

The Authority for Advance Ruling observed that eggs are produced out of rearing of chicken (poultry farming) for food and as per definition of agricultural produce, any produce out of rearing of all life forms of animals, except the rearing of horses, for food, fiber, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market.  Thus fresh eggs in shell on which no further process is done are covered under the definition of ‘agricultural produce’.

The Authority for Advance Ruling ruled that the charges received by the applicant for providing the service of storing of ‘fresh eggs’ in shell on which no further processing is done, which are produce of rearing of animals/poultry farming, are exempted from payment of GST in terms of Entry No. 24 of Notification No. 11/2017 - Central Tax (Rate), dated 28.06.2017.

Pulses

  • Whether all cereals, pulses, spices, copra, jaggery (Gur), groundnuts (with or without shell), groundnut seeds, turmeric dried and ginger dried (smooth), cashew, almond, kismis, jardalu, anjeer (fig), date, ambli foal are covered under the definition of ‘agricultural produce’ as defined under Notification No. 11/2017 - Central Tax (Rate), dated 28.06.2017.
  • If the answer to the above point is affirmative, then whether the taxability of goods mentioned above point changes if they are received for storage either in bulk packing or small or retail packing with or without name or brand name which is not registered under the Trade Mark Act, 1999 where no further processing is done or such processing is done which does not alter its essential characteristics but makes its marketable for primary market.

The Authority for Advance Ruling ruled that-

  • The pulses (dehusked or split) are not agriculture produce being obtained after dehusking or splitting or both, processes usually not carried out by farmers or at farm level but carried out by pulse millers.  However, whole pulse grains such as whole gram, rajma, etc., covered in the definition of agriculture produce vide Sl. No. 24 of Notification No. 11/2017 - Central Tax (Rate), issued under CGST Act, 2017 and corresponding Notification issued under SGST (Gujarat) and IGST.
  • The Jaggery is also not an agriculture produce as defined under Notification No. 11/2017 - Central Tax (Rate) as processing of sugarcane into jiggery changes its essential characteristics.
  • The processed dry fruits (processed cashew nuts, almonds, raisin (kismis), apricot (jardalu), fig (anjeer), date, tamarind (ambali foal), shelled groundnuts/groundnut seeds, and copra fall outside the definition of agriculture produce under Notification No. 11/2017 - Central Tax (Rate).  The cereal on which any processing is done as is not usually done by a cultivator or a producer will fall outside the definition of agriculture produce.
  • The processed spices, including processed turmeric and processed ginger fall outside the definition of agriculture produce.  However, groundnuts with shell, turmeric and ginger on which no further processing is done or such processing done by a cultivator or producer which not alter its essential characteristics but makes it marketable for primary market would fall within the definition of agriculture produce Notification No. 11/2017 - Central Tax (Rate).

There are still  many advance rulings on ‘agricultural produce’.

 

By: Mr.M. GOVINDARAJAN - June 28, 2022

 

 

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