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2021 (3) TMI 1093 - AAR - GSTClassification of Supply - sale from the portion of the sweetmeats and bakery shop - input tax credit - supply of food items and beverages from the facility which offers the opportunity of eating at the same premises - can be classified as restaurant services attracting a rate of GST of 5% or not? - input tax credit be availed on restaurant service - receipt of common input tax credit in the form of inputs, input services and capital goods, will amount of reversal of input tax credit or not - catering services provided to the educational institution, is exempt supply or not. Supply of food and beverages from the sweetmeats counter by the applicant - HELD THAT:- Supply of food and beverages from the sweetmeats counter by the applicant, where the customers have not been provided with any services in relation to consume the same in the premises, shall be categorized as supply of goods and the applicant is eligible to avail input tax credit in respect of such supply of goods subject to conditions as laid down in Chapter V of the GST Act and rules made there under - It appears from the mode of business as carried out by the applicant that when goods are supplied from the sweetmeats parlour without any element of supply of services or as a part of any services, it cannot be considered as a ‘composite supply’. Such supplies shall be treated as supply of goods and shall attract tax accordingly. Restaurant services or not - Supply of food items and beverages by the applicant which offers the facility of eating in the same premises along with takeaway - HELD THAT:- Supply of food and beverage items made in the restaurant or as takeaways from the restaurant counter having an element of supply of services shall qualify as ‘composite supply’. The principal supply being the supply of restaurant service, tax on such supply shall be levied according to entry serial number 7 of the Notification No. 11/2017- Central Tax (Rate) dated the 28th June, 2017, as amended from time to time (corresponding West Bengal State Notification No. 1135 F.T. dated 28.06.2017). Supply of catering services to an educational institution - HELD THAT:- The term ‘catering’ has not been defined under the GST Act. In Cambridge Dictionary, ‘catering’ is defined as any job making or serving food. In Collins Dictionary, ‘catering’ has been defined as the activity or business of providing food for people - In the present case, the applicant provides catering services to an educational institution which provides education services up to secondary school. Reference may be drawn to para 2 of the Circular No. 85/04/2019-GST dated 01.01.2019 issued by the Tax Research Unit, Department of Revenue, Ministry of Finance, Government of India, where it has been clarified that “A supply which is specifically covered by any entry of Notification No. 12/2017-Central Tax (Rate) dated 28-06-2017 is exempt from GST notwithstanding the fact that GST rate has been prescribed for the same under Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017.” - thus, Supply of catering services to an educational institution providing education services up to higher secondary school or equivalent, therefore, shall get covered under the entry serial number 66 (b)(ii) of the Exemption Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017 and shall be exempted from payment of tax. Outdoor Catering services or not - Supply of food and beverages to the auditor, guests/ parents on programme days - HELD THAT:- The agreement made between the applicant and Sri Sri Academy also requires the applicant to provide food and beverages to the auditor, guests, guests /parents on programme days. Evidently such supplies of services are event based and occasional in nature and falls under the category of ‘outdoor catering’. The supply, therefore, shall attract tax @ 5% vide entry serial number 7(iv) of the Notification No. 11/2017- Central Tax (Rate) dated the 28th June, 2017, as amended from time to time (corresponding West Bengal State Notification No. 1135 F.T. dated 28.06.2017, as amended from time to time) without credit of input tax charged on goods and services used in supplying the services. Input Tax Credit - HELD THAT:- The applicant shall follow the principle of apportionment of credit as laid down in sub-section (1) and (2) of section 17 of the GST Act read with rule 42 and 43 of the CGST/WBGST Rules, 2017 in respect of common input tax credit in the form of inputs, input services and capital goods.
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