pri Bakery Products, Chips etc: Branded & unbranded; Rate of tax under GST Bakery Products, Chips etc: Branded & unbranded; Rate of tax under GST

Introduction

The Goods and Services Tax (GST), a new scheme of indirect taxation, after a decade of intense debate came to realization and existence, four years back. GST was introduced to the country to reduce the tax burden on producers, to avoid procedural wrangles all across and to stimulate economic growth through more production. However, existence of grey areas and anomalies have not been completely ruled out so far. In fact, they exist in rather important spheres. Rate of tax applicable to innumerable commodities for sale is such an obscure area. Bakeries selling diverse edible items are facing such classification disputes which already bite every industry wherever an exemption or a lower rate of tax is being paid.

Having said that, this article is an earnest attempt to make some clarity and certainty with regard to the classification issues which looms large over the bakery sector under the GST regime in India.

At the outset, it is very relevant to note that, most of the goods coming under this umbrella, are generally subjected to a general classification of branded and unbranded goods. Some clarity is required with regard to the terms like “branded” and “unbranded” goods for a clear understanding of the subject. Here, the term ‘unbranded’ signifies that;

“goods other than those put up in unit container and, –

(a) bearing a registered brand name; or

(b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available [other than those where any actionable claim or any enforceable right in respect of such brand name has been voluntarily foregone, subject to the conditions as specified in the ANNEXURE]]. Usually, “branded “items attract a higher rate of tax, where as the “unbranded” attracts a lower rate.

A Bird’s Eye View

As known to all, bakery products, which have limited shell life, are prepared by baker in day today business. It includes, bread, pizza bread, cakes/birthday cake, pastries, biscuits and other bakers’ wares, whether or not containing cocoa; communion wafers, sealing wafers, rice paper and similar products. It also covers pizza bread, khakhra, plain chapatti or roti, bread, rusks, toasted bread and similar toasted products.

When it comes to GST on bakery items, at a glance, the branded snacks sold are taxed at 12%, GST on bread is 0%, the pastries/cakes are taxed at 18%, etc. This means that different items have different GST rates. Hence, the final billing in a bakery comes at the consolidated value of all the items purchased. Other than this, food items made using tapioca and its substitutes like flakes, grains, pearls, etc. are taxed @ 5% GST.

GST rates in respect of two (common) bakery products are specifically discussed as under;

GST on Namkeens (HSN 2106)

Namkeens is the Hindi word used to describe a savory flavor and is a common snack food. The word namkeen is derived from the word namak (meaning salt). It is also used as a generic term to describe savory snack foods. Typical namkeen snacks in Indian cuisine include khaara, farsan, chivda, sav, chips, and bhujiya. Namkeen of Indore and Ratlam (both in Madhya Pradesh) are two snacks that are very well known for their tastes. Popular namkeen snacks are Tikha Gathiya (combines salty sev with a red chili pepper spicing that is made from besan), Crispy Masala Puri (made from whole wheat flour that fuses in the spices of red chili pepper, ajwain, turmeric, salt, and other spices), Sakinalu (made in areas of Telangana which incorporates rice flour, spices, sesame seeds, carom seeds (ajwain), and salt)  Maida Namkeen (Deep-fried flour and spices such as ajwain, kalonji, or jeera can be added to these strips), Chivda (is made from thick poha or aval, which is a flattened rice, along with dry fruit and spices. The dried fruit provides a sweeter flavor to balance the savory snack),Gujarati Gathiya (Also known as gathia, ghatia, and ghatiya, gujaratigathiya is made from sev or ompodi. A lot of pepper and carom seeds are used in this recipe, making it similar to karasev), Punukkulu (is deep-fried and made from rice, urad dal, and other spices. The punukkulu is often served with peanut chutney that is known as verusanaga chutney, palli chutney, or Toordal chutney).

At present, non-branded namkeens, bhujias, fruit & vegetable chips, snack foods etc. are charged @ 5% GST only, while branded/in the packaged form items are charged @ 12% GST.

Here, it is relevant to note that, the phrase registered brand name means:

a) A brand registered as on 15.05.2017 shall be deemed to be a registered brand for the purposes of levy of 5% GST, irrespective of whether or not such brand is subsequently deregistered.

b) A brand registered as on 15.05.2017 under the Copyright Act, 1957 shall also be treated as a registered brand for the purposes of levy of 5% GST.

c) A brand registered as on 15.05.2017 under any law for the time being in force in any other country shall also be deemed to be a registered brand for the purposes of levy of 5% GST.

In fact, the GST tariff rate on goods under HSN 2106 has been cut down as per GST council meet held on 06th October, 2017.  In short, the GST rate on unbranded Namkeens, before 06th October, 2017 was @ 12 % and @ 5 % there after as per Sl. No. 101 A, of Schedule –l of Notification No. 1/2017-Central Tax (Rate), dated: 28.06.2017 whereas branded Namkeens attract GST @ 12 % as per Sl. No. 46 of Schedule –ll of Notification No. 1/2017-Central Tax (Rate), dated: 28.06.2017 all along.

GST on Khari (HSN 1905)

The GST rate on “khari” products have remained ambiguous since there is no specific entry in the GST tariff giving the exact GST rates to be levied on these items. Kharia biscuits, often known as khari biscuits or puffed salted biscuits are a tea-time snack (in common parlance, they are also known as namkeen biscuits) as they are crispy, flaky, fluffy, salty and mouth-melting. They are baked calorie-rich biscuits, which are made using plain flour.

According to the industry, the relevant GST tariff entry is in Notification No. 1/2017-Central Tax (Rate), dated: 28.06.2017 provides for GST of 5% on “Rusks, toasted bread and similar toasted products”. It can be observed that in the aforesaid entry “Rusks, toasted bread” are specifically covered under the 5% entry. Additionally, the entry also includes that “similar toasted products”. Industry is of the view that Khari can qualify as a “similar toasted product and as such the GST rate should be at 5 %. However, in response to one of the question, the Central Board of Indirect Taxes and Customs (CBIC) earlier clarified that “Khari and hard butters fall under heading 1905 and attract 18% GST.”

GST Rates clarified by AAR

As per Order No. GST-ARA-26/2018-19/B-91 Dated: 20.08.2018 of AAR, Maharashtra (issued to Signature International Foods India (P) Ltd, Nashik), it is ruled that;

a) The Unleavened flatbread products such as plain chapatti, Tortilla, Tortilla Wraps, roti, roti rolls, wraps, paratha and paratha wraps are covered under Entry No. 99 A of Schedule I of Notification 1/2017-Central Tax (Rate) and they would be liable to tax @ 5% (2.5 % each for CGST and SGST and 5 % for IGST).

b) The product Leavened flatbreads stated in application such as Naan, Kulcha and Chalupa are not covered by the expression ‘bread’ as mentioned under Entry No. 97 of Exemption Notifications but they would be covered under residual entry 453 of schedule III of GST ACT and they would be liable for taxes @ 18 % (9% CGST and 9% SGST). However, Pita Bread is covered by the expression ‘bread’ as mentioned under Entry No. 97 of Exemption Notification (Notification No. 2/2017-Central Tax (Rate) dated: 28.06.2017).

c) The products like Corn Chips, Corn Taco and Corn, Taco Strips would be treated as ‘wafer’ under Entry No. 16 of Schedule III of Rate Notifications and it would be liable for taxes @ 18 %(9% CGST and 9% SGST).

d) The product Pancakes supplied by the applicant would be treated as all goods as mentioned under Entry No. 16 of Schedule III of Rate Notifications and it would be liable for taxes @ 18 % (9% CGST and 9% SGST).

e) The product, Pizza Base supplied by the applicant would be treated as ‘Pizza Bread’ as mentioned under Entry No. 99 of Schedule / of Rate Notifications and it would be liable for taxes @ 18 % (9% CGST and 9% SGST)- (Remarks by the author: As per Entry No. 99 of Schedule -1 of Notification No. 1/2017-Central Tax (Rate) dated: 28.06.2017, Pizza Bread [ HSN Code 1905] is taxable @ 5 % only)

In Order No. 04/18-19 dated:  27/02/19 (re M/s Kundan Mishthan Bhandar, the Appellate Authority for Advance Ruling (AAAR), Uttarakhand has considered for ruling the following questions;

(a) whether supply of pure food items such as sweetmeats, nankeens, cold drink and other edible items from a sweetshop which also runs arestaurant is a transaction of supply of goods or a supply of service?

(b) what is the nature and rate of tax applicable to the following items supplied from ground floor of a sweetshop in which restaurant is also located on the first floor and whether the applicant is entitled to claim benefit of input tax credit with respect to the same:

(i) Sweetmeats, namkeens, Dhoklaetc commonly known as snacks, cold drinks, – ice creams and other edible items;

(ii) Ready to eat (partially or fully pre-cooked/packed) items supplied from live counters such as jalebi, cholabhatura and other edible items;

(iii) Takeaway order of sweetmeats or namkeens by a person sitting in the restaurant or a sweetshop when such products are not consumed within the premises of the applicant but are takeaway.

After having detailed discussions, the AAAR has ruled that;

(i) The ruling No. 08/2018-19 dated 22.10.2018 made by the Authority for Advance Rulings for the State of Uttarakhand is set aside.

(ii) Sale of sweets, namkeens, cold drinks and other edible items through restaurant will be treated as ‘composite supply’ with restaurant supply being the principal service. Existing GST rates on restaurant service will also be applicable on all such sales and no input credit will be allowed.

(iii) Sale of sweets, namkeens, cold drinks and other edible items from sweetshop counter will be treated as supply of goods with applicable GST rates of the items being sold and input credit will be allowed on such supply.

(iv) The applicant should maintain separate records for restaurant and sweetshop with respect to input and output and billings as well as other accounting records should also be separately maintained.

Another ruling on the topic is in re Mr. P.M. Sankaran, Fresh Products, Ernakulam, Order No. KER/53/2019 dated: 21.06.2019, AAR Kerala, whereinthe applicant has sought advance ruling with regard to the rate of tax applicable to items peanut candy &gingelly candy, uniappam, neyyappam, kinnathappam, kalathappam, rice ball (ariyunda) and avilvilayichathu, achappam, kuzhalappam, madakku, pottiappam, thatta/thattavada and murukkuand baked chips.The ingredients used by the manufacture for the different products are shown below:

SI. No. Name of the products Ingredients
1 Peanut candy Peanut, jaggery syrup, cardamom powder
2 Gingelly candy Gingelly seed, jaggery syrup, cardamom powder
3 Uniappam Rice flour, jaggery, coconut oil, coconut
4 Neyyappam Rice flour; jaggery, coconut oil, ripe banana, coconut
5 Kinnathappam Rice flour, jaggery, coconut milk, chana dhal, cardamom powder
6 Kalathappam Rice flour; jaggery, shallots, coconut oil
7 Rice Bali (ariyunda) Rice flour, jaggery, ghee, cardamom powder
8 Achappam Rice flour; whole wheat flour, coconut oil, sugar, salt
9 Kuzhalappam Rice flour; gingelly seed, salt, coconut oil
10 Madakku Refined wheat flour, palmolien, sugar, salt
11 Pottiappam defined wheat flour; palmolien, gigelly seed, cumin seed, salt
12 Thatta / thattavada Refined wheat flour, rice flour, chana dhal, palmolien, gigelly seeds, curry leaves, salt
13 Murukku Rice flour, palmolien, salt
14 AvilVilayichathu Rice flakes, jaggery, ghee, cardamom powder
15 Baked chips Vegetables/ fruits toasted / baked

The Authority has observed that, the peanut candy and gingelly candy are confectionery products made by heating a variety of sugars and thereby covered under HSN 1702.The Uniappam, Neyyappam, Kinnathappam, Kalathappam, Rice Ball (ariyunda) and AvilVilayichathuare traditional sweet/snack of Kerala. It is deep fried fitters made with rice and jaggery: Hence these items come under the category of “sweetmeats” with HSN 2106 90 covered under Entry 101 of 1stschedule.The Achappam, Kuzhalappam, Madakku, Pottiappam, Thatta/Thattavada and Murukkuetcare savouries having a salty or spicy flavour rather than a sweet one. Hence these items come under the category of “namkeens” with HSN 2106 90.Therefore, if the items are sold under trade/brand name, it will be covered under Schedule ll of Sl.No.46 and otherwise 101A of the 1stSchedule. The Baked Chips are come under HSN 2008 19 40 “other roasted and fried vegetable products”.

In view of the observations stated above, the following rulings are issued:

01) Peanut candy and Gingelly candy are taxable @ 5% GST vide Entry No.92 of 1stSchedule (Notification No. 1/2017/CT (Rate) dtd.28-06-2017 & SRO. No. 360/2017 DTD.30-06-2017).

02) Uniappam, Neyyappam, Kinnathappam, Kalathappam, Rice Ball (ariyunda) and AvilVllayichathuare taxable @ 5% GST vide Entry No. 101 of the 1stSchedule (Notification No. 1/2017/CT(Rate) dtd.28-06-2017 & SRO, No.360/2017 DTD.30-06-2017).

03) Achappam, Kuzhalappam, Madakku, Pottiappam, Thatta / Thattavada and Murakku are taxable @ 12% GST if sold at brand / trade name vide Entry 46 of the 2ndSchedule. If these items are sold in unit container without brand name or with a brand name on which any actionable claim or enforceable rights in respect of such brand name has voluntarily forgone are taxable at the rate of 5% vide Entry No. 101A of the 1stSchedule. (Notification No. 34/2017/CT(Rate) & SRO, No.727/2017}

04) Baked chips are come under HSN 2008 19 40 and taxable at 12% vide Entry 40 of 2nd Schedule. (Notification No.1/2017/CT(Rate) dtd.28-06-2017 & SRO.No.360/2017).

The AAR, Kerala in Order No. KER/66/2019 has given an advance ruling to M/s Square One Homemade Treats on 30/09/2019. The question raised was that, whether resale of food & bakery products fall under restaurant services? That apart, sought ruling regarding the rate of tax in respect of a large number of bakery/restaurant goods. It is ruled that, a restaurant is a place of business where food is prepared in the premises and served based on the orders received from the customer. In the instant case it is a bakery, where ready to eat items are sold and mere facility is provided to have it from the shop.

In Order No. KAR ADRG 38/2020/ dated: 22/05/2020, in re ID Fresh Food (India) Pvt. Ltd, the AAR Karnataka has ruled that Parantha (frozen/packaged) is different from plain roti and as such shall attract a higher rate of GST, i.e., 18% instead of 5% applicable to roti. The AAR observed that the impugned products having description “parota” do not have any specific entry in the Customs Tariff Act, 1985/ GST Tariff. The products covered under heading 1905 are already prepared or completely cooked products and no further process is required to be done on them for consumption and hence they are ready to use food preparations. In the instant case the impugned products are admittedly not ready for consumption, but need to be heated before consumption. Thus, the impugned products do not merit classification under heading 1905.

Again, the AAR, Kerala, in response to an advance ruling sought by M/s. Aswani Chips & Bakers through Ruling No. KER/115/2021 dated: 26.05.2021 answered the following questions;

a) Whether chips made from jackfruit, banana (both raw as well as ripe banana), Banana chips (masala), Potato, Tapioca, Chembu and Pavakka and sold without BRAND NAME are classifiable as NAMKEENS and are covered by HSN code 2106.90.99 and taxable under Entry 101A of the 1st schedule of Central tax (Rate) Notification-1/2017?

b) Whether roasted and salted/salted/roasted preparations such as of Ground nuts, Cashew nut and other seeds are NAMKEENS and when sold without a brand name can they be classified under HSN 2106.90.99 and taxed under Entry 101A of the 1st schedule of Central tax (Rate) Notification-1/2017?

However, the AAR has answered the questions against the applicant and ruled that chips made from Jackfruit, Banana (both raw as well as ripe banana), Banana chips (masala), Potato, Tapioca, Chembu and Pavakka and sold without BRAND NAME are classifiable under Customs Tariff Heading 2008.19.40 and is liable to GST @ 12 % (6 %CGST + 6 % SGST) as per Entry at Sl No. 40 of Schedule ll of Notification No. 01/2017, Central tax (Rate) dated: 28.06.2017 where as Namkeens are taxable @ 5 % only.

It is also ruled that, roasted and salted/salted/roasted preparations such as of Ground nuts, Cashew nut and other seeds are classifiable under Customs Tariff Heading 2008.19.20 and is liable to GST @ 12 % (6 %CGST + 6 % SGST) as per Entry at Sl No. 40 of Schedule ll of Notification No. 01/2017, Central tax (Rate) dated: 28.06.2017.

Summery

Summing up, the GST rates in respect of various goods sold in bakery outlets are shown in a tabular form as below;

Sl No Product HSN Code Rate of tax (CGST + SGST)
1. Bread & pita bread (branded or otherwise), except when served for consumption & Pizza bread) 1905 10 00 0
2. Butter Milk (Chaas) 0403 90 10 0
3. Chena or paneer (not put up in unit container and bearing a registered brand name) – (Notes: Chena or paneer put up in unit container and bearing a registered brand name is taxable @5 %) 0406 0
4. Curd, Lassi, and Buttermilk 0406 10 00 0
5. Fresh (simple & plain)milk, pasteurized milk, not concentrated &  doesn’t contain added sugar or other sweetening matter 0401 0
6. Pappad, by whatever name it is known, except when served for consumption (Sl No. 96 of Notification No. 2/2017-Central Tax (Rate)) 1905 0
7. Puffed rice (muri/pori), flattened or beaten rice (aval/chira), parched rice, (khoi), parched paddy or rice coated with sugar or gur (murki) 19041020 0
8. Achappam, kuzhalappam, madakku, pottiappam, thatta / thattavada and murakku– Un-branded – (Notes: If with brand name or sold in unit containers then attract GST @ 12 %) 2106 90 5 %
9. Cream, yogurt, kephir and other fermented or acidified milk and cream, whether or not concentrated or containing added sugar or other sweetening matter or flavoured or containing added fruit, nuts or cocoa 0403

0403

5 %
10. Diary whitener 0402 10 10 5 %
11. Khakhra, plain chapati or roti 1905 5 %
12. Milk and cream, concentrated or containing added sugar or other sweetening matter, including skimmed milk powder, milk food for babies [other than condensed milk] 0402 5 %
13. Plain chapatti, tortilla, tortilla wraps, , roti, roti rolls,wraps, paratha & paratha wraps  (Unleavened flatbread products) 1905 or 2106 5 %
14. Peanut candy and gingelly candy 1702 5 %
15. Pizza bread 1905 5 %
16. Rusks, toasted bread and similar toasted products 1905 40 00 5 %
17. Tapioca and substitutes  prepared from starch, in the form of flakes, grains, pearls, siftings or in similar forms. (sabudana) 1903 5 %
18. Uniappam, neyyappam, kinnathappam, kalathappam, rice ball (ariyunda) avalosepodi& avilvllayichathu (sweetmeats) 2106 90 5 %
19. UHT Milk 0401 20 00 5 %
20. Baked chips, chips made from jackfruit, banana (both raw as well as ripe banana), cheemachakka chips, banana chips (masala), potato, tapioca,sarkaravaratti, kovakkaivattal and pavakkai (bitter guard),vattal chembu and pavakka and sold without brand name –(Notes: If with brand name or sold in unit containers then attract GST @ 18 %) 2008 19 40 12 %
21. Butter& other fats (ghee, butter oil, etc.) and oils derived from Milk 0405 10 00

0405 90 00

12 %
22. Cheese 0406 30 00 12 %
23. Flavoured Milk 2202 90 30 12 %
24. Fried Peanuts and Chilly Nuts 2008 12 %
25. Roasted and salted/salted/roasted preparations such as of ground nuts, cashew nut and other seeds/nuts 2008.19.20 12 %
26. Biscuits 1905 31 00 18 %
27. Boiled sweets, whether or not filled 1704 90 20 18 %
28. Chocolate & other food preparations containing cocoa 1806 18 %
29. Club sandwich, crazy chicken bun, crazy veg bun, crazy yam, cutlet sweet, cutlet cheera, cutlet chicken, cutlet idichakka, cutlet meat, cutlet vaazhachundu, curd vada, cutlet vegetable, daudashe, mango mappas, macaroni chicken bake, meat roll, noodle basket, pista chicken bake, pista veg bake, sandwich carrot & egg, sandwich cheese corn, sandwich chicken, sandwich egg, sandwich pudina, sandwich sausage, sandwich veg, scotch egg, spinach chicken roll, spinach paneer roll, shepherds pie, sphageti chicken bake, sphagetti veg bake, spring roll chicken, spring roll veg, chicken burger, chicken cheese steak, chilli &padaval, chilli cauliflower, chirotta, vattayappam, sharkaravattayappam, banana ball, banana fry, bonda veg, parippuvada, sambar vada, sukhiyan, mini chicken samosa, noodle chicken samosa, noodle veg samosa arid punjabi samosa 2106 90 99 18 %
30. Condensed Milk 04029920 18 %
31. Corn chips, corn taco & corn, taco strips (treated as wafer) 1905 32 90 18 %
32. Fried/unfired Fryums 2106 90 99 18 %
33. Jelly confectionary 1704 90 10 18 %
34. Khari and hard butters 1905 90 20 18 %
35. Naan, kulcha & chalupa 2106 90 99 18 %
36. Pan cakes 1905 90 10 18 %
37. Parantha (frozen/packaged) 2106 18 %
38. Pastry, cakes, biscuits and other bakers’ wares, whether or not containing cocoa; communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products[other than pizza bread, khakhra, plain chapatti or roti, bread, rusks, toasted bread and similar toasted products 1905 18 %
39. Toffees, caramels and similar sweets 1704 90 30 18 %
40. Chewing gum, bubble gum and white chocolate, not containing cocoa 1704 28 %

*****

Author/Blogger: Aji V. Dev, Advocate, High Court of Kerala at Aji V. Dev & Associates, Ernakulam, Kochi, available at ajivdev@yahoo.co.in/advajivdev@gmail.com/9447788404

Disclaimer: The GST Rates/HSN codes  have been arranged as per the best of author’s understanding and are subject to periodic updates as per the law for the time being in force. It does not constitute professional advice or a formal recommendation. While due care has been taken in preparing this content, the existence of mistakes and omissions herein is not ruled out. Author will not be held responsible for any loss or damage of any kind arising out of any inaccurate or incomplete information in this document.

Author Bio

Qualification: Post Graduate
Company: Aji V Dev & Associates, Advocates
Location: Ernakulam , Kerala, India
Member Since: 26 Apr 2021 | Total Posts: 13
I am Aji V. Dev, a practising lawyer in the High Court of Kerala, Ernakulam. I hail from Vallicodu- Kottayam a beautiful village near to Pathanamthitta in the Kerala state of India, where undulating hills decorated by tall trees and lush green vegetation descends to the paddy fields in a rhythmic wa View Full Profile

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6 Comments

  1. Rajesh says:

    Fresh Mangoes are exempt from GST. But what would be position if Mangoes, which are otherwise exempt from GST, are sold under a Brand Name?

    1. Aji V. Dev says:

      Following goods are exempt under GST

      Fresh fruits like coconut, apples, cherries, peaches, bananas, pineapples, guavas, mangoes, citrus fruits such as oranges, mandarins, grapefruit etc. have been exempted from GST.
      (These items including mango are exempt even if sold in packaged/branded manner)

      ( Mango – HSN Code 8045020)

      Following goods (including mangos) are taxable @ 5 % GST

      Frozen vegetables and fruits whether uncooked or cooked by boiling in water or added sugar or sweeting matter.
      Provisionally preserved vegetables, fruits and nuts but unsuitable for immediate consumption in that condition.

  2. Kuldeep Rathi says:

    In case a Baker is making cakes nd pasteries in his premise but not sell it direct in public, but sell it to different shops then whether the factory can opt for composition scheme or not?

    1. Aji V. Dev says:

      GST Composition scheme for bakery would come U/s. 10 (1) [c] of the CGST Act, which says,
      “half percent, of the turnover in State or turnover in UT in case of other supplies”.
      This covers all supplies whether it from shop counter or effected to different outlets at different places. Here, “other supplies” denotes all supplies other than the supply of a manufacturer or a supply from a restaurant. Baking will neither fall under manufacturing (but it is only preparing the food for which no excise duty paid earlier) nor fall under restaurant services and thus qualified for “other supplies” .

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