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TMI Blog2024 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... sentation of facts, shall render such ruling to be void ab initio in accordance with Section 104 of the Act. 5. The provisions of both the Central Goods and Services Tax Act and the Tamil Nadu Goods and Services Tax Act (herein referred to as an Act) are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the Central Goods and Services Tax Act would also mean a reference to the same provisions under the Tamil Nadu Goods and Services Tax Act. M/s. Asvini Fisheries Private Limited, No. 3, First Canal Cross Road, Gandhi Nagar, Adyar, Chennai - 600020 (hereinafter called as 'the Applicant') is engaged in the business of exporting processed shrimps for over three decades. They are registered under GST Act with GSTIN 33AAACA2931P2ZP. They have filed an application seeking Advance Ruling on the following issues :- 1) Whether the export of processed frozen shrimps (HSN: 0306) packed in individual printed pouch / box, further packed inside a printed master carton (of upto 25 legs each), containing the design, label and other particulars provided by the buyer, attracts GST. 2) Whether the export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The applicant is classifying the above commodities under chapter 3 under sub heading 0306 and discharging tax as per S. No. 4 of Schedule 1 of Notification 02/2017 - Central Tax (Rate) dated 28th June 2017 up to 12/07/2022, as reproduced here for easy reference, S.No. Chapter / Heading / Sub-heading / Tariff item Description of Goods 4 0306 Crustaceans, whether in shell or not, frozen, dried, salted or in brine; crustaceans, in shell, cooked by steaming or by boiling in water, frozen, dried, salted or in brine; flours, meals and pellets of crustaceans, fit for human consumption 4.2 Entry No. 4 of Schedule I of the Notification No. 1/2017-Central Tax (Rate) was amended by Notification No. 06/2022-Central Tax (Rate) dated 13-07-2022 whereby GST at the rate of 5% was made applicable to supply of "pre-packaged and labelled" Crustaceans (i.e., shrimps). 4.3 As per explanation (ii) of Notification No. 1/2017-Central Tax (Rate), the expression "pre-packaged and labelled" means a pre-packaged commodity as defined under Section 2 of the Legal Metrology Act, 2009, where the package in which the commodity is pre-packed or a label is securely affixed thereto is required to bear the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buyer. Accordingly, the applicant's interpretation of the above provisions of the Act, are as follows 1) GST would be applicable on specified goods (namely shrimps) where the pre-packaged commodity is supplied in packages containing a quantity of less than or equal to 25 kgs. 2) Pre-packaged and labelled commodities processed exclusively for export have not been excluded from the Legal Metrology Act, 2009 and rules made thereunder. 3) Therefore, we understand that GST would be applicable on the supply of processed frozen shrimps in packages of up to 25 kgs, irrespective of the fact that the said supply is for domestic sale or for exports. 5. The State jurisdiction Officer viz. the Assistant Commissioner (ST), Kotturpuram Assessment Circle stated that- * According to Entry No. 4 of Schedule I of the Notification No. 1/2017-Central (Rate) as amended by Notification No. 06/2022-Central Tax (Rate) dated 13-07-2022 whereby GST at the rate of 5% was made applicable to supply of "Pre-packaged and labelled" Crustaceans (i.e Shrimps). * As per Explanation (ii) of Notification No. 1/2017-Central Tax (Rate), the expression "Pre-Packaged and labelled" means a pre-packaged commod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Arihanth Kumar Jain and Shri. Lokesh Reddy N, both Chartered Accountants who are the Authorized Representative of the Applicant appeared for the hearing and they reiterated the submissions made in their application. 7.2 The members enquired as to whether the activity involved in the processing of shrimps for the purpose of intended export by the applicant would fit into the relevant entry under the Notification No. 1/2017-CT (Rate), or, under the Notification No. 2/2017-CT (Rate). The AR replied that they would furnish a detailed additional submission within a weeks' time, incorporating the process involved in detail and about the application of the aspect relating to Pre-packaged & labelled to the instant case. 7.3 In continuation of Personal hearing, the applicant in their further submissions filed vide their letter dated 10.01.2024, has submitted that the Company is engaged in processing and export of frozen Vannamei Shrimps which is covered under SI. No. 2 of the Notification No. 1/2017 - Central Tax (Rate), dated 28.06.2017 as amended by Notification No. 41/2017-Central Tax (Rate) dated 14.11.2017 and Notification No. 6/2022 - Central Tax (Rate) dated 13.07.2022. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shrimps (HSN: 0306), packed in individual plain pouch / box, further packed inside a plain master carton (of upto 25 kgs each), attracts GST? 8.5 We intend to begin the analysis with a discussion on "export of goods" before proceeding further in this regard. In terms of Section 2(5) of the IGST Act, 2017, "export of goods" with its grammatical variations and cognate expressions, means taking goods out of India to a place outside India". Further, vide Section 7(5), read with Section 11 of the IGST Act, 2017, export of impugned product shall be treated as a supply of goods in the course of inter-State trade or commerce. Section 5 of the IGST Act, 2017, envisages that: "Subject to the provisions of sub-Section (2), there shall be levied a tax called the integrated goods and services tax on all inter-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 of the Central Goods and Services Tax Act and at such rates, not exceeding forty per cent, as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment in terms of Notification no. 44/2017 dated 14.11.2017, read with Notification No. 7/2022-Integrated Tax (Rate) dated 13.07.2022, pertaining to the commodity in question is extracted and reproduced hereunder: S. No. Chapter / Heading / Sub-heading / Tariff item Description of Goods (1) (2) (3) "21 0304, 0306, 0307, 0308 All goods, fresh or chilled 22 0303, 0304, 0305, 0306, 0307, 0308 All goods [other than fresh or chilled] and, other than prepackaged and labelled; Explanation: For the purpose of this Schedule The expression 'pre-packaged and labelled' means a 'pre-packaged commodity' as defined in clauses (I) of section 2 of the Legal Metrology Act, 2009 (1 of 2010) where, the package in which the commodity is pre-packed or a label securely affixed thereto is required to bear the declarations under the provisions of the Legal Metrology Act, 2009 (1 of 2010) and the rules made thereunder. 8.8 It is understood that consequent to the amendments carried out in I GST Rate notifications 1/2017 and 2/2017, both dated 13.07.2022, wherein the words 'pre-packaged and labelled', has been substituted in place of "other than those put up in unit container a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017, as amended, which provides for tax exemption, (or) Sl.No 2, i.e., "All goods [other than fresh or chilled], pre-packaged and labelled" of the Schedule I to Notification No. 1/2017-Integrated Tax (Rate) dated 28.06.2017, as amended, whereby the goods become liable to tax @ 5%. 8.12 We observe that both the entries relate to goods other than fresh and chilled, the only distinction being, whether the goods are "pre-packaged and labelled-", or "other than pre-packaged and labelled". Hence, the point for determination herein is as to whether the supply of specified pre-packaged and labelled frozen Shrimp meant for export would fall within the meaning of the definition of 'prepackaged and labelled commodity' under the Legal Metrology Act, 2009, and the rules made thereunder, as defined under explanation (ii) of the respective Notifications, which is reproduced below:- "The expression 'pre-packaged and labelled' means a 'pre-packaged commodity' as defined in clause (I) of section 2 of the Legal Metrology Act, 2009 (1 of 2010) where, the package in which the commodity is pre-packed or a label securely affixed thereto is required to bear the declarations under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted master carton (of up to 25 kgs each) containing the design, label, and other particulars provided by the buyer. Under the statement of facts as in para 6 of SI. No. 15 of the application for advance ruling furnished by the applicant, it is seen that they have stated as follows "The weight of the individual inner packaging generally ranges from about 250 grams to 2 Kilograms which are further packaged in master cartons with a maximum weight of up to 25 Kilograms." We find that in the instant case, since the inner packing is printed and is having pre-determined quantity it immediately attains the characteristics of 'pre-packaged and labelled' category, meant for retail sale, irrespective of the fact whether the outer packaging is printed or not. Under these circumstances, the inner packagings which ranges from 250 grams to 2 kilograms becomes liable to GST, as the same fall within the ambit of 'pre-packaged and labelled' category which is mandated to bear the declarations under the provisions of the Legal Metrology Act, 2009 (1 of 2010) and the rules made thereunder. The stand above gets validated through the FAQs dated 18.07.2022 issued by the CBIC which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, under the Legal Metrology (Packaged Commodities) Rules, 2011 (rule 6 thereof). Hence, miller 'X' would be required to pay GST on supply of such package(s). 8.16 In fine, we find that Notification No. 6/2022-Central Tax (Rate), and the parallel IGST Notification No. 6/2022-Integrated Tax (Rate), both dated 13.07.2022, stipulates that tax under GST is applicable on 'pre-packaged and labelled' commodities as per the provisions of Legal Metrology Act, 2009, with effect from 18.07.2022. In the instant case, the ultimate buyer is not present when commodity is placed in package and the commodity is being pre-packed for an unknown ultimate buyer. Therefore, where the quantity involved is 25Kgs or less in respect of specified commodities including shrimps (HSN 0306) which are pre-packed, they would mandatorily get covered within the ambit of Legal Metrology Act, 2009, and the rules made thereunder. Accordingly, we are of the considered view that GST would be applicable on the supply of pre-packaged and labelled shrimps upto 25 kgs, irrespective of the fact whether it is meant for domestic supplies or for export, as long as they are specified commodities that are pre-pac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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