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TMI Blog2019 (11) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... the same provision under the APGST Act. Further, henceforth, for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST or AP GST Act would be mentioned as being under the GST Act. 3. Brief Facts of the case: The applicant is registered under GST vide GSTIN - 37ACOFS4636G2ZO. The applicant engaged in manufacturing of milk and milk products including flavoured milk. The applicant seeks clarification regarding the HSN code, and rate of duty on their outward supply of "flavoured milk". 4. Activities of the applicant: The applicant informed that; (i) Flavoured milk is a sweetened dairy drink made with milk, sugar, permissible colourings and artificial or natural flavourings; (ii) The brief manufacturing process of the flavoured milk is standardisation of fresh milk according to the fat contents and then heating at certain temperature followed by filtration, pasteurisation, and homogenisation and then mixing of sugar and flavours and finally bottling. The applicant provided process flow chart of flavoured milk. 5. Questions raised before the authority: The applicant had filed an application in form GST ARA-01, dated 13.04.2019 by paying requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Council, the Central Government notified specifying schedule wise GST rates on goods vide Notification no.1/2017 - Central Tax (Rate) dated 28.06.2017 (hereinafter referred to as the "said notification" for brevity) as detailed below: (i) 2.5 per cent. in respect of goods specified in Schedule I, (ii) 6 per cent. in respect of goods specified in Schedule II, (iii) 9 per cent. in respect of goods specified in Schedule Ill, (iv) 14 per cent. in respect of goods specified in Schedule IV, (v) 1.5 per cent. in respect of goods specified in Schedule V, and (vi) 0.125 per cent. in respect of goods specified in Schedule VI Under Schedule III, at entry number 453, it is mentioned that goods which are not specified in Schedules I, II, IV, V, VI of the said Notification attract Central Tax rate of 9%. The Explanation to the said notification is as follows; (i) ... (ii)(a) ... (ii)(b) ... (iii) "Tariff item", "sub-heading" "heading" and "Chapter" shall mean respectively a tariff item, sub-heading, heading and chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). (iv) The rules for the interpretation of the First Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items/goods are specified or included elsewhere in the Schedule; those items/goods do not fall under Chapter 4. The applicant stated that flavoured milk is a preparation. Section IV deals with goods of "Prepared food stuffs; beverages, spirits and vinegar; tobacco and manufactured tobacco substitutes" and the Chapter 22 deals with items/goods of "Beverages, Spirits and Vinegar". The tariff item no. 2202 99 30 covers "Beverages containing milk". Now, we discuss flavoured milk is classifiable under the said tariff item or otherwise. 8.5 The Hon'ble Madras High Court in the case of the State of Tamil Nadu vs Tvl. Ganesh Corporation, vide order dated 3 April, 2012 = 2012 (4) TMI 544 - MADRAS HIGH COURT, recorded that" "as per the Oxford Dictionary "beverage" means "a type of drink except water". In Webster's 3rd International Dictionary, "beverage" has been described as "liquid for drinking especially such liquid other than water (as tea, milk, fruit juice, beer) usually prepared (as by flavouring, heating, admixing) before being consumed". 8.6 In the case of M/s. Ernakulam Reg. Co-Op. Milk Products Union Ltd., Vs. CCE, Kochi [2009-236-ELT-329-TRIB- BANG] = 2008 (5) TMI 588 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DIBLE PRODUCTS OF ANIMAL ORIGIN, NOT ELSEWHERE SPECIFIED OR INCLUDED Notes :- 1. The expression 'milk' means full cream milk or partially or completely skimmed milk. Tariff Item Description of goods Unit Rate of duty (1) (2) (3) (4) 0401 Milk and cream, not concentrated nor containing added sugar or other sweetening matter. 0402 Milk and cream, concentrated or containing added sugar or other sweetening matter. 0402 91 Not containing added sugar or other sweetening matter. 0402 99 Other 0402 99 10 Whole milk kg. Nil 0402 99 20 Condensed milk kg. 16% 0402 99 90 Other kg. Nil 2.3 Simultaneously with bringing into operation the above Tariff Amendment Act, the Central Government has issued various Notifications thereby maintaining the effective rates as they stood for various products till 28-2-2005 once again signifying that the objective of the above Tariff Amendment Act was not to change scope of any Chapter or to change classification of the excisable goods, nor was the objective to change the rate structure of the excisable goods. 2.4 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.11 of the Tariff as it stood till 28-2-2005 and since it is not disputed by the Revenue even at this stage that Amul Kool/Amul Kool Cafe is flavoured milk, the respondents would now treat the goods as chargeable to nil rate of duty from 15-6-2007. However, in the process, the petitioners' right to establish classification of these goods under Chapter 4 of the Tariff as dairy produce has been defeated because the classification of this product is shown under this Notification as 2202 90 30. 2.7 The petitioners' submission is that Section 5A of the Central Excise Act empowers the Central Government to exempt excisable goods of any specific description from the whole or any part of the duty of excise leviable thereon. The power is thus, to grant exemption of excisable goods of any specified description, but not to decide a classification of any excisable goods by way of a notification issued under this Section. The Central Government could have very well prescribed nil rate of duty for flavoured milk of animal origin without referring to its classification in the said Notification, but having prescribed these goods as falling under classification Code No. 2202 90 30 under this No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest before the Commissioner of Central Excise to adjourn the hearing suitably so as to await the decision of the Central Government on the representation. We are sure that such a request will be considered by the Commissioner in the proper perspective when the matter comes up for hearing before the Commissioner on 16-8-2007. 5. The petition stands disposed of in the above terms. 6. Liberty to apply in case of difficulty. 7. Direct service is permitted. Unquote. The above, decisions relate to the Central Excise regime. However, the interpretation and Ratio Decidendi is applicable to the very goods under GST also. In fact many dairy companies approached GST Council seeking clarification on the classification of flavoured milk. The matter recorded in the Agenda for 31St GST Council Meeting (Volume-2) dated 22.12.2018, in this regard is as follows: S. No Description HSN Present GST Rate (%) Requested GST Rate (%) Comments 18 Flavoured Milk 2202 12 Clarification on that it is classificable under Chapter 4 1. The Explanatory Notes to HSN describe the goods classifiable under the heading 0402 as under: This heading covers milk (as defined in Note 1 to this Chapter) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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