In re A.M. Abdul Rahman Rowther & Co. (GST AAR Tamilnadu)
As per the first proviso to Section 98(2) of CGST/TNGST Act 2017 the authority shall not admit the application where the question tinned in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act. In the case at hand, it is established that on the issues raised by the applicant before this authority, the Central Tax authorities have initiated proceedings and the same is pending before the Jurisdictional authority at the time of fling of this application. Therefore, the application cannot he admitted nod is to he rejected without going into the merits of the issue.
FULL TEXT OF ORDER OF BEFORE THE AUTHORITY OF ADVANCE RULING, TAMILNADU
Note : Any appeal against the advance ruling order shall be filed before the Tamil Nadu State Appellate Authority for Advance Ruling, Chennai under Sub-section (1) of Section 100 of CGST ACT/TNGST Act 2017 within 30 days from the date on which the ruling sought to be appealed against is communicated.
At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax 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 Service Tax Act would also mean a reference to the same provisions under the Tamil Nadu Goods and Service Tax Act.
M/s. A.M. Abdul Rahman Rowther & Co, No.4, Old Palace Building, Pudukottai 622001 (hereinafter referred as applicant) are manufacturers of Chewing Tobacco and are registered under GST Act with Registration No. 33AAHFA0811C1ZD.
2. The applicant had filed an application for Advance Ruling on 06.02.2019 seeking ruling on the following question:
“Classification of the product “Chewing Tobacco” manufactured by them and applicability of Notification No. 01/2017-Compensation Cess-(Rate).”
In the application they had stated that they are the manufacturers of chewing tobacco under the registered brand of “Nizam Lady” and trade name of A.R. Abdul Rahman Rowther Co
3.1 The original authority after hearing the applicant personally and on careful examination of the submissions of the applicant and the comments furnished by Commissioner, CGST Trichy ruled as follows vide Order No.37/AAR/2019 dated 27.08.2019
“The application is rejected under first proviso to Section 98(2) of the CGST/TNGST Act 2017, as the issue for which Advance Ruling is sought by the applicant is already pending before the appropriate authority.
The above decision was arrived at by the lower authority as per the first proviso to Section 98(2) of CGST/TNGST Act 2017 which forbids the authority to admit the application when the question raised is already pending or decided in any proceedings in the case of the applicant, under any provisions of the Act. Commissioner GST & Central Excise, Trichy in the comments furnished on the Application, has stated that the proceedings has been initiated and an offence case booked vide O.R. No.17/2018-19(DPU-GST) dated 09.01.2019 in respect of the applicant on the very issue raised by him before the authority while the application is filed on 06.02.2019 i.e. after the proceedings initiated under the provisions of the GST Act.
3.2 The applicant aggrieved with the above decision of the lower authority filed an appeal on 17.09.2019 before the Tamilnadu Appellate Authority for Advance Ruling on the plea that in as much as their application was accepted and AAR satisfied that there is no pending issues in the subjected matter or matter already decided either in Department or court proceedings during PH on 22nd May 2019 before the lower authority, the said authority has rejected the application for the reason that proceedings are pending.
4. The appellate authority after carefully considering the various submissions of the applicant and keeping in view the applicable statutory provisions ruled vide Order -in-Appeal No. AAAR/07/2019(AR) dated 21.10.2019 as follows:
“The order No. 37/AAR/2019 dated 27.08.2019 passed by the Lower Authority in the case of the Appellant is set aside. The matter is remanded to the lower authority for consideration and passing of appropriate orders on whether the issue raised in the application by the appellant was already pending before the department after extending opportunity to the appellant.”
5.1 On the directions of the appellate authority the applicant was requested to appear for personal hearing on 07.11.2019, whereas the applicant requested for adjournment to the next convenient date in view of the fact that the authorized representative is out of station. Further, the applicant was extended another hearing on 13.12.2019 and the applicant again requested for adjournment. The applicant was once again extended an opportunity to be personally heard on 29.01.2020. The authorised representative of the applicant appeared before the authority and gave a written submission. They stated that the summons was issued on 08.01.2020 which was general in nature. The subsequent SCN was issued with specific issue of classification, hence, should not he counted towards proceedings under Section 98(2). The Jurisdictional Central Tax officer appeared and gave a written submission. They stated that a statement was recorded on 09.01.2019, where the specific issue of classification was raised and hence should be counted towards proceedings under Section 98(2) and not allowable for Advance Ruling. The Jurisdictional state officer also gave a written submission.
5.2 In their written submission the applicant has contended that
> they have been summoned on 8th Jan 2019 as per the provisions of Section(70) of the GST Act by the Jurisdictional authority and on 9th of Jan 2019 the statement was recorded with all relevant details of the productions, revenue paid and clearance of assessable goods, etc.
> The subject matter of the summon is regarding the possible shortfall in payment of GST during the past periods and in relation to it the jurisdictional authority had called for certain documents as mentioned in the schedule of summons. Under the schedule to the summon issued under Section 70 of CGST Act, they had called for
