TMI Blog2020 (1) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... dd words to a statute or read words into it which are not there. Hence, it is the bounden duty and obligation to interpret the statute as it is. It is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated. Thus we are in unison with the Advance Ruling Authority that the activity provided by the appellant correctly falls under Entry No. 7(ia) of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 (as amended). The contention of the appellant that they involved in the Supply of goods is not tenable in the light of letter dated 15-4-2019 and License Agreement entered into between Divisional Railway Manager (Commercial), NCR, Agra and the appellant, which clearly spells the nature of work provided by the appellant as Supply of Catering Service . Accordingly, the N/N. 11/2017-Central Tax (Rate), dated 28-6-2017(as amended) is squarely applicable on them. The appellant has quoted case laws prior to GST era, whereas with the introduction of GST, the ambiguity in taxation has been removed to a greater extent. We observe that after introduction of Sl. No. 7(ia) in the Notification No. 11/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. (iii) If the assessee pays the taxes @ 5% under Serial No. 7(ia), whether assessee can claim the Input Tax Credit (ITC) of GST paid on license fees to Indian Railway or IRCTC. (iv) If answer to question (iii) is negative. What will be the consequences for wrong availing of ITC? 4. Appellant was granted hearing on 22-5-2019. Shri Gaurav Goyal, CA and Shri Amit Agarwal, Advocate, Authorized Representatives, appeared for hearing. 5. After going through the submissions of appellant, the Jurisdictional office, Authority for Advance Ruling ruled as under :- (i) Supply of Food items at GMUs (General Minor Units) at railway platforms which includes only counter sale of packed food items, drinks and cooked item shall be treated as 'Supply of Services'. (ii) Whole revenue shall be taxed @ 5% without ITC under Serial No. 7(ia) of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017. (iii) Appellant cannot claim the Input Tax Credit of GST paid on license fees to Indian railway or IRCTC. (iv) Question raised is out of purview of the mandate of Advance Ruling u/s 95(a). 6. Being aggrieved with the Order No. 32, dated 30-6-2019, M/s. Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, the consumer intends to buy and the applicant intends to sell. Thus, it is clear that there is only one activity which has taken place predominantly i.e. buying and selling of packed food items. The applicant does not intend to provide any sort of service to their consumers. (e) In the instant case, the supply has not been made by way of any service. The appellant's only intent is to sell the packed food items, etc. Here again the appellant submits that it is the pre-dominant intention of the supplier and the recipient of supply which must be the decisive factor in order to determine the nature of the supply. (f) In the instant case, the outlets of the applicant do not serve the food items to their customers on the table. Rather the same has to be collected by the customer themselves from the counter. Further, the appellant does not provide any sitting facility to the customers as well. (g) Accordingly, the activity of supply of food items in the outlet is purely a contract for supply of goods and the GST must be levied accordingly. 1 (i) The appellant is the licensees of Indian Railway not of the IRCTC Ltd. All the tenders allotted to him a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 11/2017-C.T. (Rate) is to decide the rate of Service, it cannot classify any supply as Service . Any supply shall be considered as service in accordance with Section 2(52), (102) of CGST Act read with Schedule II of CGST Act, 2017 and not by Notification No. 11/2017-C.T. (Rate). (D) The appellant also placed reliance upon the ruling issued by the Appellate Authority for Advance Ruling-Uttarakhand, in case of M/s. Kundan Misthan Bhandar. 11. The appellant vide his application has prayed for : (i) To set aside/modify the impugned advance ruling passed by the Authority for Advance Ruling; (ii) To grant a personal hearing; (iii) To pass such further or other order or orders as may be deemed fit and proper in the facts and circumstances of the case. 12. The first issue to be decided is whether supply of food items at GMUs (General Minor Units) at railway platforms which include counter sale of packed food items, drinks and cooked item shall be treated as Sale of Goods or Sale of Services . 12.1 We observe that the appellant has been awarded License to set up General Minor Units (GMUs) at various railway platforms. The appellant, in his submission, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed sized baskets/flasks. Thus we observe that the activity being undertaken by the appellant at GMU is entirely different from across the counter supply and the service provided by them is rightly classified under Catering Service . 12.4 We further observe that Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017, which specify the rate of central tax, on the intra-State supply of service was amended vide Notification No. 13/2018-Central Tax (Rate), dated 26th July, 2018 and an entry at Sl. No. 7(ia) was added, which is as under : Supply, of goods, being food or any other article for human consumption or any drink, by the Indian Railways or Indian Railways Catering and Tourism Corporation Ltd., or their licensees, whether in trains or at platforms. We noticed that after addition of Entry No. 7(ia) in the Notification No. 11/2017, the issue, regarding classification of the supply of goods, by the Indian Railways, Indian Railways Catering and Tourism Corporation Ltd., or their licensees, whether in trains or at platforms, has attained finality that the same would be classified as Supply of Service . We observe that it is not the duty of the Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue shall be taxed @ 5% without ITC under Serial No. 7(ia) of Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017 and the appellant cannot claim the Input Tax Credit of GST paid on license fees to Indian Railway or IRCTC. 14. As regard to the ruling issued by the Appellate Authority for Advance Ruling-Uttarakhand, in the case of M/s. Kundan Misthan Bhandar , on which reliance is paid by the appellant, we observe that in that case, the Party was running a sweet shop and a restaurant in two distinctly marked separate place on their own, whereas, in the instant case the appellant is running a GMU, under the supervision and contractual agreement with Indian Railways for Catering Service. Accordingly, we observe that the facts and circumstances of M/s. Kundan Misthan Bhandar case is entirely different from that of the appellant's case and the ratio of the said case cannot be applied here. 15. In addition to above, the appellant has also placed reliance on some other case laws, which are as under : 15.1 In the case of M/s. Northern India Caterers v. Lt. Governor of Delhi {AIR 1980 SC 674}, on going through the contents of the case we observe that in that case ..... 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