liable declared as void ab-initio
Case Title | J.K. Food Industries |
Court | Gujarat Bench AAAR |
Honorable Judges | Member J.P.Gupta & Member Seema Arora |
Citation | 2021 (7) GSTPanacea 47 HC Gujarat GUJ/GAAAR/APPEAL/2021/26 |
Judgement Date | 20-July-2021 |
Council for Petitioner | NA |
Council for Respondent | NA |
Section | Section 98 |
In Favour of | In Favour of Revenue |
The Gujarat Bench of Member J.P.Gupta & Member Seema Arora has held that Bench are of the view that the appellant has obtained the Advance Ruling by submitting application of advance ruling with suppression of material facts or misrepresentation of facts, hence the advance ruling pronounced by the Gujarat Authority of Advance Ruling is liable to be declared as void ab-initio.
FACTS OF THE CASE
The present appeal has been filed under Section 100 of the CGST Act, 2017 against the Advance Ruling No. GUJ/GAAR/R/76/2020 dated 17.09.2020.
The appellant has raised the following questions for advance ruling in the application for Advance Ruling filed by it before the Gujarat Authority for Advance Ruling (herein after referred to as the ‘GAAR’).
Under which tariff Heading the product dealt in by the applicant i.e. PAPAD of different shapes and sizes are eligible to be classified?
Ans. The product of different shape and sizes manufactured and supplied by applicant in “un-fried Fryums” and not “Papad” and is classifiable under Tariff item 21069099 of the First Schedule to the Customs Tariff Act, 1975.
What is the applicable rate of SGST and CGST on supply of such Papad of different shapes and sizes.
Ans. Goods and Services Tax rate of 18% (CGST 9% + GGST 9% or IGST 18%) is applicable to the product ‘Un-fried Fryums’ as per Sl. No. 23 of Schedule III of Notification No. 1/2017-Central Tax (Rate), dated 28-6- 2017, as amended, issued under the CGST Act, 2017 and Notification No. 1/2017-State Tax (Rate), dated 30-6-2017, as amended, issued under the GGST Act, 2017 or IGST Act, 2017.
Aggrieved by the aforesaid advance ruling, the appellant has filed the present appeal on 03.11.2020 and further written submissions dated 17.01.2021.
The appellant in their grounds of appeal has submitted that the officer of DGGI, Surat Zonal Unit, Surat had visited their premises on 17.02.2020, while they submitted the application for Advance Ruling on 29.02.2020 and this fact was stated during the course of Personal Hearing but Members of the Authority of Advance Ruling have not taken cognizance of this fact.
liable declared as void ab-initio
COURT HELD
Considering the facts as recorded, held that as per column No. 17 of the Form GST ARA-01, if the question raised in application is not already pending in any proceedings in the applicant’s case under any of the provisions of the Act, then the applicant is required to “tick” box before item (a) of column 17 of the said Form.
Bench are of the view that the appellant has obtained the Advance Ruling by submitting application of advance ruling with suppression of material facts or misrepresentation of facts, and the application was not eligible to be admitted in view of proviso to sub-section (2) of Section 98 of the CGST Act, 2017.
Therefore, in terms of Section 104 of CGST Act, 2017, and the GGST Act, 2017, the advance ruling pronounced by the Gujarat Authority of Advance Ruling is liable to be declared as void ab-initio
liable declared as void ab-initio
ANALYSIS OF THE JUDGEMENT
Advance ruling to be void in certain circumstances.-
(1) Where the Authority or the Appellate Authority finds that advance ruling pronounced by it under sub-section (4) of Section 98 or under sub-section (1) of section 101 has been obtained by the applicant or the appellant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void ab-initio and thereupon all the provisions of this Act or the rules made there under shall apply to the applicant or the appellant as if such advance ruling had never been made.
The appellant had “ticked” both the items (a) and (b) of column 17 of Form GST ARA-01, in the application filed before the GAAR in Form GST ARA-01, meaning that the question raised in the application is neither already pending nor already decided in any proceedings in applicant’s case under any of the provisions of the Act. However, when the officers of the DGGI Surat had visited the premises of the appellant and recorded the statement of the partners, and proceedings related to Question raised in the application for advance ruling was already pending when the application for advance ruling was filed before the GAAR, then the appellant should not have “ticked” the item (a) of column 17 of Form GST ARA 01.
It appears that had the fact of pending proceedings before the DGGI Surat in applicant’s own case relating to questions raised in the application filed before the GAAR been brought to the notice of the GAAR, the application for advance ruling would not have been admitted in view of the proviso to sub-section (2) of Section 98 of the CGST Act, 2017 and the question of issuing advance ruling would not have arisen.
Provided that no order shall be passed under this sub-section unless an opportunity of being heard has been given to the applicant or the appellant.
Therefore, in terms of Section 104 of CGST Act, 2017, and the GGST Act, 2017, the advance ruling pronounced by the Gujarat Authority of Advance Ruling is liable to be declared as void ab-initio.
Download PDF :
J.K. Food Industries
For Reference Visit:
AAAR Gujarat