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2022 (11) TMI 210 - HC - GSTClassification of goods - rate of tax - Food/food products or not - alcoholic liquor for human consumption - argument of the learned counsel for the petitioner appears to be that since liquor also falls within the category of “Food and food products” under Chapter 22, as it was sought to be inserted at serial No.26 after clause ‘e’, the rate of tax payable is only 5%. Whether imposing tax at 18% for the job work done in relation to manufacture of liquor for human consumption at 18% is prospective in operation? HELD THAT:- It is an admitted fact that there is no definition of “food and food products” under the Act but at the same time, whatever consumed by human beings cannot be construed as “food and food products” for the purpose of exemption under G.S.T. In COLLECTOR OF CENTRAL EXCISE VERSUS PARLE EXPORTS (P) LTD. [1988 (11) TMI 108 - SUPREME COURT], the Hon’ble Supreme Court held that it will never be the intention of legislature to exempt expensive items like alcoholic liquor under the category of food and food products though the same is for human consumption. While dealing with the meaning of the word “food products or food beverages”, the Hon’ble Supreme Court, in Parle Exports’ case, observed that there is no direct evidence, as such, as to how in commercial parlance, unlike in ordinary parlance, non-alcoholic beverage bases are treated or whether they are treated as food products or food preparations. The purpose of exemption is to encourage food production and also give boost to the production of goods in common use and need. After all, the purpose of exemption is to help production of food and food preparations at cheaper price and also help production of items which are in common use and need. Notification No.6/2021, dated 30.09.2021, published in the Gazette on 30.09.2021 itself incorporates services by way of job work in relation to manufacture of alcoholic liquor for human consumption as item No.(ica) in Column No.3 of Serial No.26 and the rate of tax is mentioned @ 9% (i.e., 9%+9%=18%). Since the manufacture by the petitioner relates to alcohol for human consumption by way of job work, the petitioner is liable to pay tax at 18%. Whether the petitioner is liable to pay tax at 18% with prospective or retrospective effect? - HELD THAT:- The petitioner is liable to pay tax at the rate of 18% in terms of Notification No.6/2021, dated 30.09.2021. Apart from that, it is also to be noticed that at no point of time, any exemption was specifically granted to “alcoholic liquor for human consumption”. Neither the notification nor the items mentioned in Chapters 1 to 22 spell out clearly that “alcoholic liquor for human consumption” as food or food product. The petitioner, on its own, has been claiming exemption, which lead to issuance of notification No.6/2021. Though the same was published in Gazette on 30.09.2021, but this being clarificatory in nature, it has to be retrospective in operation. In view of law laid down by Hon’ble Supreme Court and as the notification issued herein being of clarificatory in nature it is retrospective in operation. Petition dismissed.
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