Page 107 - GSTL_16 April 2020_Vol 35_Part 3

2020 ] IN RE : GITWAKO FARMS (INDIA) PRIVATE LIMITED 321
number of the chickens, who may have different individual weight, supplied in
such packages. Hence, packages of supply in the instant case may carry weight
which may vary in a certain range due to peculiarity of the item of supply and
conditions in which the item is supplied. However, the appellant puts each dressed
chicken (broiler) carcass in individual packing i.e. LDPE Bags and this primary packing
has predetermined fixed and uniform quantity i.e. one dressed chicken in each package.
The appellant puts these primary packages in HDPE bags which also are de-
signed in such a manner to hold a predetermined quantity. As such, we find that
these LDPE Bags used for individual packing of whole chicken have to be con-
sidered as unit container in the instant case. We also find that quantity in such
unit containers is predetermined as each such package has to carry one chicken.
The appellant has argued that weight of various frozen chicken is not similar and
therefore it implies that all packages are not of same quantity. We find in this
regard that it is not necessary that unit quantity should refer only to weight in
kilograms only. Unit of quantity of a given item depends upon the nature of the
item in question and the form in which it is supplied and the use it is intended to
be put to. In the instant case the appellant is supplying frozen chicken which is
obtained out of live bird and after slaughtering, stuffed in its natural shape. In
terms of the specifications determined for the supply, the appellant has to supply
frozen chicken and not meat of chicken, that too, by preserving its natural shape.
Hence, weight in Kgs. cannot be the primary and only determinant of unit quan-
tity because emphasis has been laid on supply of chicken in natural shape which
naturally has to be quantified primarily in numbers. Number of chicken supplied
being the primary determinant the weight of such supply can vary according to
the weight of live bird and other relevant factors and, therefore the weight of
supply in the secondary packing, though pre-determined, has to be specified in a
range suitable for accommodating the weight of the birds. In any case, range of
weight also happens to be a predetermined quantity and the said range com-
bined with the one number of chicken put up in the primary package can be tak-
en to be predetermined quantity put up in a unit container.
23. We find that one dressed chicken (broiler) carcass is packed in each LDPE
bag which implies that the primary package contains predetermined quantity i.e. one in
number as from definition of unit container it is clear that unit container must hold a
pre-determined quantity or predetermined number. These primary packages are put
in HDPE bags. These HDPE bags which are used for supply of the final product
i.e. Frozen Chicken, are also designed to hold a predetermined quantity, so as to
carry chicken weighing between 10-20 kgs. Being individual packing of whole
chicken in colourless (transparent) LDPE bag, mentioning of quantity on such
LDPE bags has no meaning especially in the case where buyer and seller both are
having prior knowledge of factual position. In view of the fact that whole frozen
chicken is being packed by the appellant in individual LDPE bag in predeter-
mined quantities (one in number) and then it is put in a secondary package
(HDPE Bag) for supply, we find that such supplies are in the nature of supply in
unit containers. Thus, the requirement of phrase ‘unit container’, as laid down in
the aforesaid Explanation to the Notification No. 1/2017-C.T. (Rate), dated 28-6-
2017 (as amended) is satisfied and therefore, the goods supplied by the appellant
to the Indian Army, are not exempted under Entry No. 9 of the Notification No.
2/2017-C.T. (Rate), dated 28-6-2017 (as amended).
24. The appellant in their grounds of appeal has relied upon the deci-
sions of CESTAT in the case of Foods & Inns Ltd. v. CCE [2000 (118) E.L.T. 486

GST LAW TIMES  16th April 2020  227