2025 (5) TMI 1883 - AAR - GST

Industrial/institutional consumers as per Rule 2bb and 2bc of the Legal Metrology (Packaged Commodities) Rules 2011 - supply to institutions is not classified as pre-packaged and labelled as per Rule 3(b) of the Legal Metrology (Packaged Commodities) Rules 2011 - nil rated supply - Supply to Bangalore branch is wholly done by Chennai Head Office and at Bangalore they sell the products only to hotels or institutions - claim of ITC on inter-branch transfer - frozen meat products packed in individual packs of 1Kg 2Kg 3Kg etc. are sold to distributors with the marking For Institutional sale only - rate of GST. HELD THAT - The Hotels qualify as an industrial consumer as per Rule 2(bb) of the Legal Metrology (Packaged Commodities) Rules 2011. The supplies to institutional or industrial consumer shall not be considered as pre-packaged and labelled for the purpose of GST levy as they get covered under Rule 3(c) of the Legal Metrology (Packaged Commodities) Rules 2011. Such supplies are indeed Nil rated as they are covered under the exemption notification No. 02/2017-CT (Rate) dated 28.06.2017 if and only if it fulfils all the conditions envisaged under Rule 2(bb) and Rule 2(bc) of the Packaged Commodities Rules 2011. As a corollary if the said conditions are not fulfilled such supplies cannot be treated as exempted even if they are made to an industry or an institution. Further in the instant case of the applicant we notice that the declaration Not for Retail Sale is reportedly not affixed/printed in the packages and therefore such supplies are not exempted from payment of GST. However on fulfilment of the requisite conditions if such outward supplies are treated as Nil rated ITC on the inward supply involved in such cases cannot be availed. As per the facts of the case furnished by the Applicant the supply of the impugned products to its branch is reported to undergo further supply only to hotels or other institutional consumers. In this regard we find that Rule 3(c) of the Chapter II of the Packaged Commodities Rules inter-alia states as packaged commodities meant for industrial consumers or institutional consumers whereby it becomes clear that the end user should be an industrial consumer or an institutional consumer and that the same should not be for retail sale. Hence for the supplies meant for industrial/institutional consumers we find that the exemption from GST would be available if and only if it fulfils all the conditions envisaged under Rule 2(bb) Rule of the Packaged Commodities Rules 2011 for Industrial Consumer or under Rule 2(bc) of the Rules ibid for Institutional Consumer . In the instant case of inter-branch transfers since the requirement of affixing/printing the declaration Not for Retail Sale is reportedly not made in the packages such supplies do not fall under the exempted category. It may be seen that packages of commodities containing quantity of more 25 kilograms as specified in rule 3(a) of the Legal Metrology (Packaged Commodities) Rules 2011 and quantity of ten gram or less as specified in rule 26(a) of the rules ibid are kept outside the purview of the said rules - the analogy of the discussion as above in respect of query Sl. No.(iii) applies to this query as well since frozen meat products packed in individual packs of 1Kg 2Kg 3Kg etc. get covered as pre-packaged and labelled commodities. Such supplies become eligible for exemption under N/N. 02/2017-CT (Rate) dated 28.06.2017 provided the distributor to whom the Applicant makes outward supply is also a wholesale dealer and provided such packages carry the declaration Not for Retail Sale . However since the mandatory requirement of declaration is not available in the instant case and since the status of the distributor as a wholesale dealer is not clear/confirmed it is opined that the applicant should charge GST on such supplies to distributors. Conclusion - i) Hotels qualify as an industrial consumer as per Rule 2(bb) of the Legal Metrology (Packaged Commodities) Rules 2011. ii) The declaration Not for Retail Sale is reportedly not affixed/printed in the packages and therefore such supplies are not exempted from payment of GST. However on fulfilment of the requisite conditions if such outward supplies are treated as Nil rated ITC on the inward supply involved in such cases cannot be availed. iii) With regard to inter-branch transfers since the requirement of affixing/printing the declaration Not for Retail Sale is reportedly not made in the packages such supplies do not fall under the exempted category. iv) Since the mandatory requirement of declaration Not for Retail Sale is not available in the packages instant case and since the status of the distributor as a wholesale dealer is not clear/confirmed the applicant should charge GST on such supplies to distributors.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Authority for Advance Ruling (AAR) pertain to the applicability of GST on supplies of frozen meat products by the applicant to various categories of consumers and branches. Specifically, the issues are:

(i) Whether hotels qualify as industrial or institutional consumers under Rule 2(bb) and 2(bc) of the Legal Metrology (Packaged Commodities) Rules, 2011;

(ii) Whether supplies to institutions, which are not classified as 'pre-packaged and labelled' under Rule 3(b) of the Legal Metrology Rules, are 'Nil' rated for GST purposes, and consequently, whether Input Tax Credit (ITC) can be availed on such supplies;

(iii) Whether GST is chargeable on inter-branch transfers of goods from the Chennai Head Office to the Bangalore branch, given that the Bangalore branch sells only to hotels or institutions and no output tax is charged;

(iv) Whether GST should be charged on supplies of frozen meat products packed in individual packs marked 'For Institutional sale only' sold to distributors, who in turn sell to hotels or institutions.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Qualification of Hotels as Industrial or Institutional Consumers

Relevant Legal Framework and Precedents: The definitions under Rule 2(bb) and 2(bc) of the Legal Metrology (Packaged Commodities) Rules, 2011 are pivotal. 'Industrial consumer' is defined as one who buys packaged commodities directly from the manufacturer/importer/wholesale dealer for use by that industry, with the package bearing the declaration 'not for retail sale'. 'Institutional consumer' is defined similarly but with the additional condition that the goods are not for commercial or trade purposes.

Court's Interpretation and Reasoning: The AAR examined the nature of hotels and their use of frozen meat. Hotels purchase frozen meat for further processing and commercial sale of cooked dishes, thereby engaging in commercial activity. This use aligns more closely with the industrial consumer definition rather than the institutional consumer, which excludes commercial or trade purposes.

Key Evidence and Findings: The applicant's packages bear the marking 'For Institutional sale only' but do not carry the mandatory declaration 'Not for Retail Sale'. The applicant sells primarily to hotels, which are engaged in commercial activities.

Application of Law to Facts: Since hotels use the goods for commercial purposes, they cannot be considered institutional consumers under Rule 2(bc). They qualify as industrial consumers under Rule 2(bb), but the packages lack the required 'Not for Retail Sale' declaration.

Treatment of Competing Arguments: The applicant argued that hotels should be treated as institutional consumers, but the AAR rejected this based on the commercial nature of hotel operations and the absence of the mandatory declaration.

Conclusion: Hotels qualify as industrial consumers under Rule 2(bb), not institutional consumers.

Issue (ii): GST Rating and ITC Eligibility on Supplies to Institutions

Relevant Legal Framework and Precedents: Notification No. 01/2017-Central Tax (Rate) and Notification No. 02/2017-Central Tax (Rate) as amended, along with Rule 3(c) of the Legal Metrology (Packaged Commodities) Rules, 2011, which excludes packaged commodities meant for industrial or institutional consumers from the definition of 'pre-packaged and labelled' for GST purposes. The FAQ issued by the Department of Revenue clarifies that supplies to industrial or institutional consumers are excluded from GST levy if conditions are met.

Court's Interpretation and Reasoning: Supplies to institutional or industrial consumers are 'Nil' rated (exempt) if the packages bear the declaration 'Not for Retail Sale', are purchased directly from the manufacturer/importer/wholesale dealer, and are for use by the institution or industry (with no commercial purpose in the case of institutions). The absence of the mandatory declaration invalidates the exemption.

Key Evidence and Findings: The applicant's packages do not bear the declaration 'Not for Retail Sale'. The applicant is a wholesale dealer, not a manufacturer or importer. Hotels are industrial consumers, and the supplies are for commercial purposes.

Application of Law to Facts: Since the mandatory declaration is absent, the supplies do not qualify for exemption and are therefore taxable. If the conditions were met and supplies were 'Nil' rated, ITC on inward supplies would not be available.

Treatment of Competing Arguments: The applicant's interpretation that supplies are 'Nil' rated and ITC cannot be availed was partially accepted but contingent on fulfillment of all conditions, including the declaration.

Conclusion: Supplies to institutional or industrial consumers without the mandatory declaration are taxable and not 'Nil' rated; ITC eligibility depends on the classification.

Issue (iii): GST Liability on Inter-Branch Transfers

Relevant Legal Framework and Precedents: Section 25(4) of the CGST Act, 2017 treats each GST registration as a distinct person. Clause (2) of Schedule I of the CGST Act treats supplies between distinct persons as supply under Section 7, even if without consideration.

Court's Interpretation and Reasoning: Since the applicant's branches in Bangalore and Andaman & Nicobar have separate GST registrations, they are distinct persons. Inter-branch transfers between distinct persons are taxable supplies.

Key Evidence and Findings: The applicant's Chennai Head Office supplies goods to the Bangalore branch, which sells only to hotels or institutions. The packages lack the 'Not for Retail Sale' declaration.

Application of Law to Facts: Inter-branch transfers to distinct persons attract GST. The exemption available for supplies to industrial or institutional consumers does not apply here due to the absence of the mandatory declaration on the packages.

Treatment of Competing Arguments: The applicant contended that no output tax should be charged and ITC should not be claimed on inter-branch transfers, but the AAR held that GST is chargeable on such transfers.

Conclusion: GST is payable on inter-branch transfers to branches with separate GSTINs; exemption applies only if all conditions including the declaration are met.

Issue (iv): GST on Supplies to Distributors Marked 'For Institutional Sale Only'

Relevant Legal Framework and Precedents: Rule 3 of the Legal Metrology (Packaged Commodities) Rules, 2011 excludes packages over 25 kilograms or those meant for industrial/institutional consumers from the 'pre-packaged and labelled' category. Exemption Notification No. 02/2017-CT (Rate) applies if conditions are met, including the declaration 'Not for Retail Sale' and the status of the recipient as a wholesale dealer.

Court's Interpretation and Reasoning: Packages of 1Kg, 2Kg, 3Kg are pre-packaged and labelled. Supplies to distributors marked 'For Institutional sale only' would be exempt if the distributors are wholesale dealers and packages bear the 'Not for Retail Sale' declaration. Absence of this declaration and unclear status of the distributors necessitate charging GST.

Key Evidence and Findings: The packages do not carry 'Not for Retail Sale', and the distributor's status as wholesale dealer is not confirmed.

Application of Law to Facts: GST is chargeable on such supplies due to non-fulfillment of exemption conditions.

Treatment of Competing Arguments: The applicant's contention for exemption based on the marking was rejected due to lack of mandatory declaration and unclear distributor status.

Conclusion: GST must be charged on supplies to distributors in the absence of the mandatory declaration and confirmed wholesale dealer status.

3. SIGNIFICANT HOLDINGS

"Hotels qualify as an 'industrial consumer' as per Rule 2(bb) of the Legal Metrology (Packaged Commodities) Rules, 2011, in view of the detailed discussions as in para 7.10 above."

"The declaration 'Not for Retail Sale' is reportedly not affixed/printed in the packages, and therefore, such supplies are not exempted from payment of GST. However, on fulfilment of the requisite conditions, if such outward supplies are treated as 'Nil' rated, ITC on the inward supply involved in such cases cannot be availed."

"With regard to inter-branch transfers, since the requirement of affixing/printing the declaration 'Not for Retail Sale' is reportedly not made in the packages, such supplies do not fall under the exempted category."

"Since the mandatory requirement of declaration 'Not for Retail Sale' is not available in the packages instant case, and since the status of the distributor as a wholesale dealer is not clear/confirmed, the applicant should charge GST on such supplies to distributors."

Core principles established include the strict requirement of the declaration 'Not for Retail Sale' on packages for exemption from GST under the Legal Metrology Rules, the classification of hotels as industrial consumers due to their commercial use of supplied goods, and the GST liability on inter-branch transfers between distinct persons with separate GST registrations.

Final determinations on each issue are that hotels qualify as industrial consumers; supplies without the mandatory declaration are taxable; GST is chargeable on inter-branch transfers to distinct persons; and GST must be charged on supplies to distributors lacking the mandatory declaration and confirmed wholesale dealer status.