Page 110 - GSTL_14th May 2020_Vol 36_Part 2

212 GST LAW TIMES [ Vol. 36
ing has not been done by cultivator or producer in the field - However, said
circular has totally ignored sub-clause (e) of clause (i) ibid wherein support
services of loading, unloading, packing, storage or warehousing of agricultural
produce is specifically included in exemption entry - There is nothing in sub-
clause (e) that these activities have to be performed in agricultural field only as
it is there in sub-clause (c) ibid - In this case, agricultural produce, i.e., raw un-
processed milk has to be essentially chilled for storage to avoid it being spoilt
- Thus, storage of milk would include its chilling and packing even after
which it still remains raw milk - It is not a case that support services are being
supplied to chilled and packed milk - Reference in this circular to exemption
available to transport of said goods has no relevance with petitioner’s case -
Further reference to levy of 5% GST on job work relating to food and food
products is also not applicable to ‘support service’ - In view of above, im-
pugned circular is based on wrong and fallacious premise and hence quashed -
Exemption admissible to petitioners who are at liberty to file refund claim for
tax already paid - Section 8 of Central Goods and Services Tax Act, 2017 - Arti-
cle 226 of Constitution of India. [paras 17, 18, 22, 23, 24, 25, 26, 27, 28, 30]
Petition allowed
DEPARTMENTAL CLARIFICATION CITED
C.B.I. & C. Instruction F. No. 354/292/2018-TRU, dated 9-8-2018 .................... [Paras 1, 10, 13, 21, 28, 29]
REPRESENTED BY : S/Shri Amal Paresh Dave and Paresh M. Dave, for
the Petitioner.
Ms. Trusha K. Patel and Shri Viral K. Shah, for the
Respondent.
[Judgment per : Harsha Devani, J. (Oral)]. - By this petition under Arti-
cle 226 of the Constitution of India, the petitioners have challenged the Letter/
Circular F. No. 354/292/2018-TRU, dated 9-8-2018 issued by the Government of
India through the Tax Research Unit (hereinafter referred to as “TRU”). The peti-
tioners also seek a declaration that milk chilling and packing services provided
by the contractors to the petitioners’ dairies are exempted by virtue of Serial No.
24 of the table to Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017.
The petitioners also seek a direction to the respondents to return the amount re-
covered and collected from the petitioners through their contractors as GST on
milk chilling and packing services.
2. The Petitioner No. 1 - M/s. Gujarat Co-operative Milk Marketing
Federation Limited is a co-operative society, registered under the Gujarat Co-
operative Societies Act, 1961. The Federation is an apex body for marketing of
milk and milk products produced by the various District Co-operative Milk Pro-
ducers Unions which are co-operative societies of farmers and agriculturists of
various districts and are also registered as co-operative societies under the said
Act. The petitioner Nos. 2 to 5 are four of such district co-operative societies
which are members of the Federation. The petitioner Nos. 2 to 5 are operating
plants popularly known as dairies for production of milk and milk products.
3. The dairies are engaged in the activities of producing milk and milk
products on co-operative principles and the goods so produced by the dairies are
sold and marketed by the Federation.
4. Prior to 1-7-2017, that is before the Goods and Services Tax Laws
came into force, the goods produced by the dairies were excisable goods covered
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