In re Sri Durga Food Products Private Limited (GST AAR West Bengal)
The case in question pertains to Sri Durga Food Products Private Limited and the GST implications on their activity of converting wheat into atta or fortified atta. This wheat is supplied by the State Government for distribution via the Public Distribution System (PDS). The ruling investigates whether this process qualifies as an exempt supply or if it falls under a taxable category, shedding light on the complex nature of GST in such cases.
Analysis: The central focus of the case lies in determining the supply nature – whether it’s a composite supply of goods and services, whether it’s connected to functions entrusted to a Panchayat or Municipality under the Indian Constitution, and if the value of goods supplied is not more than 25% of the composite supply’s value.
Upon evaluating the provided documents and the applicant’s activities, the applicant appears to qualify under the definition of ‘composite supply’ in accordance with the GST Act. Their activity involves milling wheat into wheat flour, fortifying it with micronutrients, and packing for supply – a process that fits within the GST Act’s clause (30) section 2 definition.
Furthermore, it’s clear that the applicant’s composite supply aligns with functions entrusted to a Panchayat under Article 243G of the Indian Constitution. The agreement they’ve entered with the State Government for the supply of fortified atta falls within the Public Distribution System (PDS) framework.
However, a final determination is needed regarding whether the value of goods supplied surpasses 25% of the total supply value. The applicant’s charges, the non-monetary considerations, the fortification process, and the composite supply’s cost all need careful assessment to ascertain this.
Conclusion: The GST implications for Sri Durga Food Products Private Limited’s operations hinge on the fine details of their agreement with the State Government, the nature of their supply, and the regulations outlined in the GST Act. The case serves as a significant example of the nuanced layers of GST rules in relation to composite supply and the Public Distribution System, providing valuable insights for similar businesses navigating the complexities of GST law.
FULL TEXT OF THE ORDER OF AUTHORITY FOR ADVANCE RULING, WEST BENGAL
1.1 At the outset, we would like to make it clear that the Central Goods and Services Tax Act, 2017 (the CGST Act, for short) and the West Bengal Goods and Services Tax Act, 2017 (the WBGST Act, for short) have the same provisions in like matter except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the WBGST Act. Further to the earlier, henceforth for the purposes of these proceedings, the expression „GST Act‟ would mean the CGST Act and the WBGST Act both.
1.2 The Applicant is a flour miller, engaged in providing services of crushing wheat provided by the State Government, into fortified atta which in turn is supplied by the State Government through Public Distribution System. The ownership of wheat or atta is never transferred to the Applicant.
1.3 The applicant has made this application under sub section (1) of section 97 of the GST Act and the rules made there under raising following questions vide serial number 14 of the application in FORM GST ARA-01:
(i) What is the value of supply of services provided by the applicant Company to the State Government?
(ii) What is the rate of tax applicable on the value of supply? What components are to be included in calculation of the % of value of goods in the total value of composite supply for the purpose of Notification No. 2/2018- Central Tax (Rate)?
1.4 The aforesaid question on which the advance ruling is sought for is found to be covered under clause (b) and (c) of sub-section (2) of section 97 of the GST Act.
1.5 The applicant states that the question raised in the application has neither been decided by nor is pending before any authority under any provision of the GST Act.
1.6 The applicant, vide written submissions furnished on 02.05.2023, states that the Directorate General of GST Intelligence („DGGI‟) initiated an inquiry into the business of the applicant in the month of December, 2020. Summon was issued and the applicant duly honoured the summon. But no show cause notice or demand order was issued by the DGGI till date. Moreover, no specific question with respect to any matter was raised by the DGGI. Therefore, it can be construed without any doubt that no proceeding is pending in this matter and the instant application is liable to be admitted in terms of the provision of Section 98(2) of the CGST Act, 2017. In this regard, the applicant has relied upon the decision of Hon‟ble Telangana High Court in the matter of M/s Srico Projects Pvt. Ltd. vs. Telangana State Authority for Advance Ruling reported in 2022 (9) TMI 418 wherein the Hon‟ble Court had quashed and set aside the order passed by the respondent authority and held that the respondent was not justified in rejecting the advance ruling application of the petitioner. It was observed that in the absence of any specific definition of the word „proceeding‟, the said word has to be understood in the context in which it is being applied, namely, any proceedings pending or decided in the case of an applicant under the provisions of the CGST Act, it would only mean proceedings where the question raised in the application for advance ruling has already been decided or is pending decision. Therefore, inquiry or investigation which is not in the nature of any proceeding would not come within the ambit of the word “proceedings”. It cannot be a bar under the first proviso to sub-section (2) of Section 98 of the CGST Act, 2017. The applicant further relied upon the decision of the ruling pronounced by this authority in the matter of Jai Lokenath Flour Mills Private Limited bearing case number WBAAR 26 of 2022, where the members admitted the application considering the decision of Hon‟ble High Court and agreed to the fact that the inquiry or investigation would not come within the ambit the word „proceeding‟.
1.7 The officer concerned from the revenue has raised no objection to the admission of the application.
1.8 In terms of first proviso to sub-section (2) of section 98 of the GST Act, an application for Advance Ruling made under sub-section (1) of section 97 shall not be admitted by the Authority where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of the GST Act. We have duly considered the submission made by the applicant. We find that the fact of the case of M/s Srico Projects Pvt. Ltd. vs. Telangana State Authority for Advance Ruling, on which the applicant has placed his reliance, is different from the case of the applicant. In the above-referred case, the application for advance ruling was filed on 11.05.2019 and notice was issued by the DGGI on 15.12.2021 i.e., much after the filing of application for advance ruling. The Hon‟ble Court thus held that „the same cannot be a bar under the first proviso to sub-section (2) of section 98 of the CGST Act‟. In the instant case, the DGGI had initiated inquiry in the month of December, 2020 while the applicant has filed the application in the month of April, 2023. However, the applicant has submitted that no show cause notice or demand order was issued by DGGI and no specific question with respect to any matter were issued by DGGI. The Hon‟ble Telangana High Court, in para 12 of the aforesaid order, has observed that „inquiry or investigation would not come with the ambit of the word „proceedings‟. On due consideration of the fact that no specific question or show cause notice has been issued by the DGGI, we are of the opinion that the instant application is not hit by the first proviso to section 98(2).
1.9 The application is, therefore, admitted.
2. Submission of the Applicant
The submission of the applicant is that:
2.1 It has entered into a contract with the Governor of the State of West Bengal represented by the District Controller of Food & Supplies (hereinafter referred to as the State Government) for conversion of wheat provided by the State Government and owned by the State Government, at all times, into atta/ fortified atta, for distribution by the State Government through Public Distribution System (for brevity, PDS), as entrusted under the Eleventh Schedule of the Constitution of India.
2.2 It has been selected for empanelment for crushing of wheat meal atta and fortify it by premixing of micro nutrients containing (i) Vitamin A-500 µg RE- 750 µg RE, (ii) Vitamin B120.75 µg- 1.25 µg, (iii) Iron: Ferrous(II) Citrate:28mg-42.5mg or Sodium Iron (III) EDTA: 14 mg-21.5 mg, (iv) Folic Acid- 75µg- 125µg per kg in 1 Kg poly pouch/packet (1 kg wheat ≅ 950gm fortified atta)(having thickness of poly pouch not less than 50 microns).
2.3 Under the aforesaid contract, it shall obtain stock of wheat from the State Government. The ownership of wheat remains with the State Government and the applicant is required to convert the wheat into atta by way of crushing and mixing other ingredients as stated earlier.
2.4 The contract specifies that the outturn ratio of atta will be minimum of 95% per quintal of wheat allowing refraction of 1% for cleaning and 4% for debranning to the maximum. The applicant, as per the contract, will retain 1 kg refraction and 4 kg bran against conversion of 100 kg wheat. The applicant will further retain 2 gunny bags in which 100 kgs of wheat is supplied to him.
2.5 The contract stipulates that it shall pack the crushed stock of whole wheat atta after fortification into the poly pouches of 1 kilogram each in properly labelled poly-packs having thickness of 50 microns and or above and it will deliver the stock to the M.R. Distributors as nominated by the State Government for distribution to the consumers, immediately after the process of crushing.
2.6 The applicant does not gain ownership of either wheat or atta in the entire process of crushing it. This is substantiated by Clause 10(4) of the contract which states that the applicant shall under no circumstances sell the stock of atta in the open market. The atta is distributed only through PDS.
2.7 During the process of conversion of wheat into atta, two types of wastes are generated, namely bran and refraction. The bran and refraction so generated will subsequently be retained by it and sold in the open market at the prevailing market rates which is generally around Rs 20/- per kg for bran and Re 1/- per kg for refraction. This fact was further confirmed by the State Government of West Bengal, Department of Food and Supplies vide memo no. 569(3) – FS/Sectt/Food/4P-02/2016/2021 dated 18.02.2022.
2.8 The applicant will charge crushing charges from the State Government valued at Rs 179.48 per quintal. This rate was last notified by the Government of West Bengal, Food and Supplies Department vide memo no. 2583(3) – FS/Sectt/Food/4P-02/2016 dated 07.09.2018. The following table reflects the bifurcation of this amount:
