TMI Blog2021 (8) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorative items which are bundled along with the cakes and are utilised by the Customers in the premises of the outlets - rates applicable as per Notification No.01/2017-Central Tax (Rate) dated 28.06.2017 on items such as chocolate, cookies which are prepared in the nearby workshop of the applicant and then processed / customized in the outlets of the applicant before selling to the customers - tax liability charged on goods which are tax free without opting for composite scheme such as bread etc. - whether the products which are prepared in the workshop but are sold only after certain customizations in the outlets will also be covered under the composite scheme or not? Time Limitation - Whether the appeal is time barred as claimed by the applicant during the personal hearing? - HELD THAT:- The time limitation period is prescribed under sub section 2 of the Section 100 of CGST Act, 2017/SGST Act, 2017 that the appeal shall be filed within 30 days from the date of the communication of the order. On verification of records, we observed that, the order of the Authority for Advance Ruling was communicated to Jurisdictional Officer on dt.30.03.2021 they have filed the appeal on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ams, handmade chocolates, cookies, beverages etc.. They offer a number of customization options to mere customers with respect to the above mentioned products. 2.1. M/s. Pioneer Bakers has submitted that the bakery products are manufactured either in the premises of the outlets itself and served to the customers or in its workshop which is located nearby to the premises of the outlet of the applicant. Generally the raw materials such as raw chocolates, cookies, etc. are manufactured in the workshops as these goods require heavy machinery and are labour intensive in nature and due to these features the same are prepared in the nearby workshop and brought to the outlets for further customization. No items is sold directly from the workshop and each and every item is brought to the outlet for sale. The outlets are equipped with all the facilities to dine such as table and chairs, air conditioner, drinking water, stylish lights for providing a nice ambience which provide an overall good experience to the customers. The customers are provided with the option of either enjoying their food in the outlets itself by utilizing the facilities present in the outlets or they are at the lib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... processed / customized in the outlets of the applicant before selling to the customers. (iv) Items such as chocolate, cookies which are prepared in the nearby workshop of the applicant and then processed / customized in the outlet as per the choice and consumed in the premises itself. Ans : The supply of the items as mentioned in Clause (iii) (iv) from the premises of the Bakery shop of the applicant qualifies as composite supply under Section 2(30) of the CGST Act. The said composite supply shall be deemed to be a supply of service as per the Entry 6(b) of Schedule II to the CGST Act and more specifically the Restaurant Service and rate of tax is 5% without any input tax credit (2.5% for CGST and 2.5% for SGST). (e) Supposing, the applicant s firm is covered under the Composite Scheme then in such cases what will be the tax liability charged on goods which are tax free without opting for composite scheme such as bread etc. Ans : Since the applicant is a manufacturer of Ice Creams , he is not eligible for `Composition Scheme . (f) Suppose, the applicant s firm is covered under composite Scheme, then in such circumstances whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Tax, Sambalpur Circle-I attended the personal hearing. 4.1. The authorized representatives on behalf of M/s. Pioneer Bakers, reiterated that the submission made by them on dt 13.07.2021, before Honourable Appellant Authority, may please be considered. They argued that the Advance Ruling order having been passed on dt.09.03.2021. The Appellant was required to file the appeal within a period of 30 days of passing of the order as per Section 100(2) of the Central goods and Service Tax Act, 2017. However, the Appellant has been able to file the instant appeal only on 28.04.2021, i.e. after a delay of about 20 days but no reasons/grounds have has been assigned in the memorandum of appeal for such delay which the appeal is barred on the grounds of limitation and is liable to be dismissed. 4.2. They pleaded that the appeal is filed, solely based upon inspection report. The inspection is not carried out in a proper fair manner. The inspection only done for the outlet located in Sahayog Nagar, Sambalpur but the inspection was not carried out for other nine outlets. Moreover during the inspection time, COVID 19 pandemic restrictions were in force by Govt. of Odisha. So the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed under sub section 2 of the Section 100 of CGST Act, 2017/SGST Act, 2017 that the appeal shall be filed within 30 days from the date of the communication of the order. On verification of records, we observed that, the order of the Authority for Advance Ruling was communicated to Jurisdictional Officer on dt.30.03.2021 they have filed the appeal on dt.28.04.2021. The appeal is filed well within 30 days of the communication of the order. The applicant claimed that, the appeal is barred on the grounds of limitation by considering the 30 days from the date of passing order i.e. 09.03.2021, which is not legally correct. The time period of 30 days shall be considered from the date of communication of the order. Accordingly, we find that the appeal is not time barred it was filed well within the prescribed time limit. 5.2. We have gone through the grounds of appeal made by the Jurisdictional Officer. The appeal made before us to revisit the ruling given by original Advance Ruling Authority of Odisha related to Question Nos.(a), (c), (d)(iii) (d)(iv) to give a fresh ruling by charging, the individual rate of SGST CGST as applicable as per the Notification No.01/2017-Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning by the applicant M/s.Pioneer Bakers, whether can be treated as Restaurant or not, is the main question before us. But the ambiguity persists on the subject issue because the Restaurant Service is defined under CGST Act, 2017/SGST Act, 2017 but what is restaurant is not defined under CGST/SGST Act, 2017. 5.6. The meaning of the restaurant is provided in the Cambridge Dictionary, where it is defined as, a restaurant is a place where meals are prepared served to the customer. The appellant, the Jurisdictional Officer has categorically stated that the applicant is running a bakery business where different items are sold on take away basis. Most of the items are not prepared in their premises. The serving of the items to the customer for taking the food in the premises is done to very few customers. Therefore, the establishment running by the applicant M/s. Pioneer Bakers cannot be considered as Restaurant. The concerned Officer, Deputy Commissioner, CT GST, Odisha also put forth their submissions on the similar grounds. The Concerned Officer submitted that, in the instant case, it is a bakery outlets where ready to each items are sold mere facility is provided to take i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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