TMI Blog2022 (11) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged on the ground that the job work charges relatable to manufacture of Alcoholic liquor in view of Notification No.6/2021-Central Tax (Rate) dated 30.09.2021 issued by the Department of Revenue, Ministry of Finance, Government of India, published in the gazette on 30.09.2021, at the rate of 18% as against 5% is illegal and contrary to law. 3. Heard Sri S. Suribabu, learned counsel for the petitioner, Sri Y. N. Vivekananda, learned Government Pleader for Commercial Tax, appearing for respondent Nos.1, 2, 4 and 5; and Sri N. Harinath, learned Deputy Solicitor General appearing for respondent No.3, and perused the record. 4. The learned counsel for the petitioner took us through the Notification, dated 28.06.2017, issued vide Notification No.11/2017, Notification No.31/2017, dated 13.10.2017 and Notification No.6/21, dated 30.09.2021, to show that a reading of the same would clearly establish that for the work done by the petitioner, it has to pay tax @ 5% tax and imposition of 18% by the assessing authority is bad in law. 5. He would submit that since the product manufactured by the petitioner i.e., alcohol/beverages/liquor falls under Chapter 22 of the First Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8% is prospective in operation? 10. POINTS:- The assessing authority, after analyzing the subject on record, held as under:- .. The objection is examined and found to be not tenable. All the products classifiable under Chapter 1 to 22 don t attracts 2.5% tax under the Act as per entry no:26(f) of notification no:11/2017-CT (Rate) dt : 28-6-2017. Only food and food products of these chapters are eligible for this exemption. Now it is to be seen whether the alcoholic liquor for human consumption can be considered as food for the purpose of levy of tax at lower rate under the said notification. There is no definition of food and food products under the Act. However, the Supreme Court in the case of Collector of Central Excise Vs Parle Exports Pvt Ltd reported in 1998 (38) ELT 741 (SC) held that non-alcoholic beverages were not eligible for exemption as food products. Everything consumed by human cannot be considered as food or food products for the purpose of exemption from GST. The context and spirt and reason of law need to be examined to extend exemption. The Hon ble Supreme Court in the aforesaid judgment has held that it cannot be contended that expensive it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ica) Services by way of job work in relation to manufacture of alcoholic liquor for human consumption 9 - From the above, it is clear that the initial tax imposed @ 5% was enhanced to 18%, in respect of the nature of the work done by the petitioner. 12. It is also to be noted here that Notification No.6/2021 does not substitute earlier notification issued by the Government. It only clarifies the earlier notification by incorporating a clause, having regard to the law laid down by the Hon ble Supreme Court. 13. It is no doubt true that only food and food products, as reflected in Chapters 1 to 22 in the First Schedule, are eligible for payment of less tax. Whether alcoholic liquor for human consumption can be considered as food for the purpose of levying tax at lower rate under the said notification? 14. 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. 15. In Collector of Central Excise Vs Parle Exports Pvt Ltd 1998 (38) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by expression giving on hire for the purposes of GST exemption. 6. The services by way of grant of mineral exploration and mining rights attracted GST rate of 18% w.e.f. 01.07.2017. 7. Admission to amusement parks having rides etc. attracts GST rate of 18%. The GST rate of 28% applies only to admission to such facilities that have casinos etc. 8. Alcoholic liquor for human consumption is not food and food products for the purpose of the entry prescribing 5% GST rate on job work services in relation to food and food products. 18. On the other hand, GST Council recommended that such job work would attract GST at the rate of 18%. It is now urged that the recommendations of the GST Council are not binding and they are only directions. Even assuming it to be so, a plain reading of the item, which is in dispute, would clearly show that same cannot be treated as an article of food. It cannot be treated as an item of food for many a reasons, more particularly, for the advertisements carried on the item that consumption of the same would be injurious to health, etc. Therefore, the argument of the learned counsel for the petitioner that since alcoholic liquor fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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