Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.2220 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 1. M/s. Pioneer Bakers *** Regn. No.GSTIN: 21AAQFP6408F1ZB At: Sahayog Nagar, P.O.: Budharaja District: Sambalpur – 768 003, (Odisha) represented through Shri Amit Singhania, Aged about 44 years, R/o.: 8kc, Mani Tribhuvan, Raghunathpur Patia, Bhubaneswar, Odisha … -VERSUS- 1. Union of India Represented through its Secretary Ministry of Finance (Department of Revenue), North Block, New Delhi. Petitioner 2. Commissioner, Central, Goods and Services Tax and Central Excise, At Rajaswa Vihar, GST Bhawan, Bhubaneswar – 751 007, Odisha. 3. State of Odisha Represented through Secretary, Department of Finance, At: Secretariat Building Sachivalaya Marg, Unit-2, Keshari Nagar, Bhubaneswar – 751 001, Odisha. 4. Odisha Appellate Authority for Advance Ruling, Goods and Services Tax Represented through its Assistant Commissioner, CGST W.P.(C) No.2220 of 2022 Page 1 of 60 Office of the Chief Commissioner At: Rajaswa Vihar, GST Bhawan Bhubaneswar – 751 007, Odisha. 5. Assistant Commissioner of GST & Central Excise Sambalpur-I Division, At: Danipali, Budharaja Sambalpur – 768 004, Odisha. 6. Superintendent, CGST & Central Excise Sambalpur-I Division, At: Danipali Budharaja, Sambalpur – 768 004 Odisha. … Opposite parties Counsel appeared for the parties: For the petitioner : Mr. Jagabandhu Sahoo, Senior Advocate, along with M/s. Kajal Sahoo, Saurav Tibrewal, Abhay Khandelwal, Pankaj Khandelwal, Advocates For the opposite party No.1 : Mr. Prasanna Kumar Parhi Deputy Solicitor General of India For the opposite party Nos.2 to 6 : Mr. Radheyshyam Chimanka, Senior Standing Counsel, GST, Central Excise & Customs P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 25.01.2024 :: Date of Judgment : 25.01.2024 W.P.(C) No.2220 of 2022 Page 2 of 60 J UDGMENT MURAHARI SRI RAMAN, J.4 THE CHALLENGE BY THE PETITIONER: The petitioner, registered partnership firm engaged in the business of bakery products, craves to question the legality and propriety of Order No.02/Odisha- AAAR/Appeal/2021-22, dated 27.07.2021 passed in Appeal bearing No.01/Odisha-AAAR/Appeal/2021-22 by the Odisha Appellate Authority for Advance Ruling (<AAAR= for short) constituted under Section 99 of the Odisha Goods and Services Tax Act/the Central Goods and Services Tax Act, 2017 (collectively abbreviated as <GST Act=), whereby the ruling rendered by Odisha Authority for Advance Ruling (<AAR=, for brevity) constituted under Section 96 vide Order No.06/Odisha- AAR/2020-21 dated 09.03.2021 in consideration of the Application filed under Section 97 of the GST Act has been set aside in the appeal preferred by the Jurisdictional Officer and held that <the items sold by the applicant-M/s. Pioneer Bakers will attract the GST tariff rate as individual items=. 1.1. It is alleged that the Appellate Order has been passed in gross violation of the established position of law and suffers from procedural irregularities warranting W.P.(C) No.2220 of 2022 Page 3 of 60 interference being in violation of principles of natural justice. FACTS AS NARRATED BY THE PETITIONER: 2. The Petitioner-firm is operating its outlets under the name of <GO-COOL= since 1997. It has established itself as a brand in the field of bakery items, especially in cakes. It has several outlets operating in the State of Odisha and it offers a wide range of goods and services in the aforementioned outlets. 2.1. Principal business of the petitioner is making and selling of bakery products, viz., cakes, artisan cakes, pastries, pizza, patties, sandwich, burgers, handmade chocolates, cookies, beverages etc., in its outlets. It offers a large number of customisation options to its customers with respect to the above-mentioned products as the same are prepared in its outlets and served to the customers. 2.2. The bakery products are prepared in the outlet premises and served to the customers. The materials for some of the items are prepared in its workshop, being located nearby the premises of the outlet of the petitioner. Such materials include chocolates, pizza base, etc. which are prepared in the workshops as these goods require heavy machinery. It is asserted that no food items are sold directly from the workshop and the retail sale takes place through outlets only as the same is prepared in the outlets. W.P.(C) No.2220 of 2022 Page 4 of 60 2.3. Outlets of the petitioner are equipped with the requisite facilities to provide for dining and the outlet is arranged with table and chairs, air conditioner, drinking water, stylish lights for providing a nice ambience to provide an overall good experience to the customers. The customers are provided with the option of either enjoying their food in the outlets by utilising the facilities made available in the outlets or they have the option to take away their food. 2.4. The customer can order his food and can customise his order by demanding to add or remove any particular ingredient from any item or to add any topping of his choice according to his taste. After the food is ordered, the same is prepared in the premises itself as per the instruction supplied by the person ordering the food. The customer also has the option of ordering artisan cakes and pastries as per own choice. Based on the demand and requirement of the customer, the cake is prepared and provided in the outlets. 2.5. After the food is prepared as per the instructions of the customer, the same is served to the customer on their tables or the customers can also collect the same from the counters and enjoy the same using the facilities available in the outlets. 2.6. With respect to chocolates, various chocolates are displayed in a display freezer with name tags giving W.P.(C) No.2220 of 2022 Page 5 of 60 details of the ingredients and the customer has the option to select the same. After the item is selected, it is heated or served in different forms such as, brownies to the customer. A customer has the option of taking away the same in different customised containers. Certain customers after selecting different varieties of chocolates ask for special packaging in different shaped containers, which is also a form of service provided by the petitioner. The chocolates prepared in the workshop are also used in the preparation of brownies, smoothies, shakes and other beverages, etc. prepared in the outlets itself and the customer is normally served with various dishes of hot chocolates in the premises. 2.7. The customer has also the option to choose a suitable beverage from a whole lot of options or to ask for a custom drink (non-alcoholic), which is prepared instantly in the outlets on demand. Different customers have different tastes and as per their demand various drinks are prepared in the outlets. 2.8. The facilities provided in the outlets coupled with the ambience make it a perfect place for customer to celebrate birthday, anniversary or any other event of the like and accordingly, sometimes the customer also demand for special arrangements in the premises to celebrate special moments. While the petitioner is indulged in preparation and supply of varieties of items W.P.(C) No.2220 of 2022 Page 6 of 60 from pizza base to creams for cakes in the outlets or from the workshop, some of the items, like balloons, plastic knife for cutting cake, birthday caps and posters and other related items used in decoration are purchased goods from the market. These goods, which form essential and inseparable part of celebration of special occasions, are supplied by the petitioner as a set of bundled goods as it is natural for a person to demand a knife who is taking a cake. It is stated by the petitioner that these goods constitute about a mere 0.5% of the total turnover and give insignificant profit, but the same are indispensable to be supplied as they form part of inseparable combo. 2.9. The nature of business in the present case is not merely selling of goods but is a combination of goods and services in which the customer avails the above mentioned services/facilities along with the goods in the outlets of the petitioner. Numerous facilities along with options of various customised special packaging etc. are provided to the customers distinguishes the petitioner’s bakery from any other normal bakery which are generally involved in resale of goods. 3. With the above backdrop of facts, the petitioner applied for an advance ruling of the AAR by filing an Application in Form GST ARA-01 prescribed under Rule 104(1) of the Odisha Goods and Services Tax Rules/the Central W.P.(C) No.2220 of 2022 Page 7 of 60 Goods and Services Tax Rules, 2017 (collectively be called <GST Rules=) on 04.05.2020 to ascertain correct classification so as to correctly apply rate of tax on supply of aforesaid goods and services and inter alia sought for adjudication whether the services rendered by the petitioner would fall within the ken of <restaurant services=. 3.1. After affording opportunity of personal hearing, the AAR answered the questions by elaborately discussing the factual merit of the matter and held as follows:
Decision
<In view of the above, we rule as follows: Q.(a) Whether supply of cakes, bakery items, ice creams, chocolates, drinks and other eatable products prepared at the premises of the applicant and supplied to the customers from the counter with the facility to consume the same in the air-conditioned premises restaurant services? itself covered under the Ans: Yes, answer is in the affirmative. Q.(b) Whether supply of items such as birthday stickers, candles, birthday caps, snow sprays etc. related in birthday items which are essentially used celebration can be classified as Composite Supply defined under Section 2 (30) of the CGST Act, 2017 and Section 2 (30) of the OGST Act, 2017 wherein the Principal supply of goods consists of bakery items, chocolates while the supply of services include the supply of air conditioned place to sit and to celebrate birthday. W.P.(C) No.2220 of 2022 Page 8 of 60 Ans: The answer is in the 8Negative9. Q.(c) Whether the sale of handmade chocolates which are manufactured in the workshop of the Applicant and are utilised for the purpose of providing other services such as shakes, brownies and are also retailed by packing in different containers as per the choice of the customer will be covered under the under the restaurant services? Ans: Yes, answer is in the affirmative. Q.(d) What is the nature and rate of tax applicable to the following items supplied from the premises of the bakery shop of the Applicant (i) Items such as Birth caps, knife, decorative items which are bundled along with the cakes and are utilised by the Customers in the premises of the outlets. Ans: Replied at para 4.5 & 4.6 as above. (ii) Items such as Birthday caps, knife, decorative items which are bundled along with the cakes and are taken away by the Customers from the outlets. Ans: Replied at para 4.5 & 4.6 as above. (iii) Items such as chocolate, cookies which are prepared in the nearby workshop of the Applicant and then processed/customized in the outlets of the Applicant before selling to the customers. (iv) Items such as chocolate, cookies which are prepared in the nearby workshop of the Applicant and then processed/customized in W.P.(C) No.2220 of 2022 Page 9 of 60 the outlet as per the choice and consumed in the premises itself. Ans: The supply of the items as mentioned in clause (iii) & (iv) from the premises of the bakery shop of the Applicant qualifies as 8composite supply9 under Section 2(30) of the CGST Act. The said composite supply shall be deemed to be a supply of service as per the Entry 6(b) of the CGST Act and more Schedule specifically the 8Restaurant Service9 and rate of tax is 5% without any input tax credit (2.5% for CGST and 2.5% for SGST). to II Q.(e) Supposing, the Applicant9s firm is covered under the Composite Scheme then in such cases what will be the tax liability charged on goods which are tax free without opting for composite scheme such as bread etc. Ans: Since the applicant 8Ice Creams9, he is not eligible for 8Composition Scheme9. is a manufacturer of Q.(f) Suppose, the Applicant9s firm is covered under composite Scheme, then in such circumstances whether the products which are prepared in the certain workshop but are sold only after customizations in the outlets will also be covered under the composite scheme or not? Ans: Since the applicant 8Ice Creams9, he is not eligible for 8Composition Scheme9.= is a manufacturer of 4. At the behest of the Jurisdictional Officer (Assistant Commissioner, CGST & Central Excise, Sambalpur-I Division, at: Danipalli, P.O.: Budharaja, District: Sambalpur (Odisha) appeal was preferred before the W.P.(C) No.2220 of 2022 Page 10 of 60 AAAR against the advance ruling rendered by the AAR. It is contended by the petitioner that upon hearing, relying on the version of the Jurisdictional Officer that the petitioner is running a bakery business where different items are sold on take away basis, the AAAR overturned the ruling of the AAR and observed as follows vide Order dated 27.07.2021 in Appeal bearing No. 01/Odisha- AAAR/Appeal/2021-22,: <Most of the items are not prepared in their premises. The serving of the items to the customer for taking the food in the premises is done to very few customers. Therefore, the establishment running by the applicant M/s. Pioneer Bakers cannot be considered as Restaurant. The concerned Officer, Deputy Commissioner, CT & GST, Odisha also put forth their submissions on the similar grounds. The Concerned Officer submitted that, in the instant case it is a bakery outlets where ready to each (sic. eat) items are sold and mere facility is provided to take it from the shop. The applicant has only prepared birthday cakes, as per order for take out service and they do not prepare birthday cakes immediately from the customers order. Those who want to take within the premises, they merely supply the readily available cakes. They do not serve food to the Customer table & in most cases, sold the items from the counter. Therefore, the applicant should not be considered as Restaurant Services.= 4.1. It has further been observed by the AAAR as follows: <We examined the submission made by the applicant. We have also gone through the above verification put forth by the Jurisdictional Officer and the Concerned Officer.= W.P.(C) No.2220 of 2022 Page 11 of 60 4.2. And, thereafter, it has been concluded as follows: <Ruling (a) The appeal made by the Jurisdictional Officer is allowed; (b) The ruling made by the Authority for Advance Ruling, Odisha vide their Order No.06/Odisha- AAR/2020-21 dt.09.03.2021 against the Question Nos. (a), (c), (d)(iii) & (d)(iv) are set aside; and (c) The items sold by the applicant M/s.Pioneer Bakers will attract the GST tariff rate as individual items.= 5. Being aggrieved, the petitioner has approached this Court by way of writ petition. REPLIES OF THE OPPOSITE PARTIES TO THE CONTENTS OF THE WRIT PETITION: 6. This Court issued notice on 02.02.2022, pursuant to which counter-affidavit dated 30.03.2022 supporting the stance contained in the Order dated 27.07.2021 passed by the AAAR was filed by the opposite party Nos.2 to 6. It is affirmed that the nature of activities of business conducted by the petitioner on verification of the petitioner’s premises led to conclude that the supply of goods and services could not be comprehended within the meaning of <restaurant services=. It is clarified by the opposite parties that in order to be <restaurant=, the place must be a place where meals are prepared and served to the customers; nonetheless, the bakery cannot be construed to fall within the ordinary meaning of Page 12 of 60 W.P.(C) No.2220 of 2022 <restaurant=. By referring to the meaning ascribed to the word <restaurant= in the dictionary, it is made clear by the opposite parties that the bakery business in which the petitioner is indulged and the nature of supply of goods and services as referred to by the AAAR would not fall within ambit of <restaurant service=. 6.1. It is suggested by the answering opposite parties that in the instant case, the nature of business carried on by the petitioner is <bakery= which cannot be construed as <restaurant service= as <running a bakery business where different items like cakes, bakery items, ice creams, chocolates, drinks and other eatable products are sold on Counter. The serving of the items to the customer for taking the food in the premises is done to a very few customers only as it is done usually by any of normal bakery. However, serving a very few items in the manner done by a bakery does not make the establishment of the petitioner a restaurant=. 6.2. Drawing distinction between <restaurant= and <bakery= business, it is contended that whereas cooking and serving full/complete cooked meals give the essential character to a restaurant service, in case of bakery, selling only baked items on take away basis gives the essential character to a bakery. Further, in case of restaurant, full and complete meals are cooked and served and the kitchen is situated in the premises of the W.P.(C) No.2220 of 2022 Page 13 of 60 restaurant itself, because the essential character of a restaurant is serving hot cooked full meals. However, in case of bakery the existence of kitchen in the same premises is not essential. It is also not a requirement for the bakery to serve baked items in the same premises. The main purpose of bakery is only to sell its baked items rather than serving them to customers in its premises. 7. Refuting such contention of the opposite parties the petitioner filed rejoinder affidavit on 08.08.2022 by making statement that the petitioner does run <restaurant business= and the food is being served to each and every customer in the restaurant. Having accepted that the petitioner serves food to its customer, the opposite parties contradicted by stating that serving a few items does not make a place <restaurant=, but the opponents have not given any reason for such assertion. 7.1. Strongly opposing the contention of the opposite parties, the petitioner has sought to explain that the petitioner fulfils all the requisite criteria for the goods and services to be classified within fold of <composite supply= as defined under Section 2(30) and supply of ancillary goods and services are bundled within the meaning of the term <principal supply= as contemplated under Section 2(90) of the GST Act. W.P.(C) No.2220 of 2022 Page 14 of 60 7.2. Parity is sought to be maintained by the petitioner by illustrating business of others, carrying on similar nature of transactions, which are claimed to be classified within the meaning of <composite supply= as defined under Section 2(30) of the GST Act and charged 5% GST. In order to appreciate the situation, the copies of bills of other similarly situated persons charging GST @5% are annexed to the petition for perusal of this Court. HEARING OF WRIT PETITION BEFORE THIS COURT AT THE STAGE OF ADMISSION: 8. This matter is on board under the heading <Admission= today. It is conceded by counsel for the respective parties that the pleadings have been completed and as this writ petition relates to classification of business activity vis-(cid:224)-vis applicability of rate of tax against the ruling rendered by the AAAR, the counsel for both sides insisted for disposal at the stage of admission itself. Having conceded by both the counsel for the respective parties, this Court heard Sri Jagabandhu Sahoo, learned Senior Advocate for the petitioner; and Sri Radheyshyam Chimanka, learned Senior Standing Counsel for the opposite party Nos.2 to 6. SUBMISSIONS AND ARGUMENTS OF THE COUNSEL FOR RESPECTIVE PARTIES: 9. Sri Jagabandhu Sahoo, learned Senior Advocate for the petitioner strenuously argued that the approach of the W.P.(C) No.2220 of 2022 Page 15 of 60 AAAR is not only erroneous but also finding of fact is perverse warranting interference by this Court. By substituting its view with that of the AAR, as the AAAR proceeded on no evidence, its ruling is required to be treated as nullity. It is submitted that during the course of hearing before the AAAR material particulars were submitted along with apposite explanation with respect to activity of the business of the petitioner. Even so, the AAAR without appreciating the nature of business and transactions of the petitioner, it reversed the finding of the AAR. 9.1. After receipt of copy of the Order dated 27.07.2021, it could come to light that the AAAR proceeded on the basis of untested material forming part of the report and <verification put forth by the Jurisdictional Officer and the Concerned Officer=. 9.2. Sri Jagabandhu Sahoo, learned Senior Advocate vehemently argued that as the contents of the report formed the basis for varying with the opinion of the AAR in the appeal, the petitioner on 03.08.2021 made an application for supply of copy of said report. Since copy of the report was not supplied to the petitioner, reminders were submitted on 12.08.2021 and 31.08.2021. By way of Letter C.No.IV(023)/AAR/ Pioneer/SBP-I/2021/1457, dated 03.09.2021, the Assistant Commissioner, GST and Central Excise, W.P.(C) No.2220 of 2022 Page 16 of 60 Sambalpur-I Division denied to supply copy of the report. The text of said letter reads as follows: <Please refer to your Letter Ref. NIL dated 12.08.2021 on the above mentioned subject. In this context, it is to intimate that the sought enquiry report cannot be provided to you, as the undersigned is also a party in the instant case and on the basis of the same sought enquiry report carried out by the JRO, GST and Central Excise, Sambalpur-I Range, Sambalpur, the undersigned has filed appeal before the Odisha Appellate Authority of Advance ruling for Goods and Service Tax (GST), Rajaswa Vihar, Bhubaneswar, Pin-751007 (Odisha) against order No.06/Odisha-AAR/2020-21 dated 09.03.2021. You may sought the same from the Odisha Appellate Authority of advance ruling for goods and Service Tax, Rajaswa Vihar, Bhubaneswar PIN- 751007 issued order No.02/Odisha- AAAR/Appeal/2021-22 dated 27.07.2021 in the instant case.= (Odisha), who 9.3. Accordingly, the Petitioner made an application to the AAAR on 05.10.2021. However, considering the application under the Right to Information Act, 2005, submitted on 08.09.2021 to the Chief Commissioner, Central Excise and Customs Service Tax, Bhubaneswar Zone, the Superintendent of CGST & Central Excise, Sambalpur-I Range furnished copy of the report enclosing with the Letter No.1042, dated 11.10.2021. 9.4. It is urged by learned Senior Counsel that such report collected behind the back of the petitioner, which being W.P.(C) No.2220 of 2022 Page 17 of 60 not confronted to it during the course of hearing of appeal filed at the behest of the Jurisdictional Officer, ought not to have been made the basis for reversing the factual adjudication made by the AAR to render its ruling. It is submitted by the learned Senior Counsel that after getting the copy of said report it could be made known to the petitioner that adverse material was submitted by the officials who visited the premises of the petitioner on 27.04.2021. 9.5. The learned Senior Counsel brought to the notice of this Court the Order dated 19.04.2021 bearing No.2057/ RDM-RLF-MISC-0034-2020/ R&DM(DM) issued by the Government of Odisha in the Office of Special Relief Commissioner, which was issued on account of resurgence of SARS-CoV-2 virus in many parts of India and some areas of the State with an object to ensure COVID appropriate behaviour and protocols scrupulously in order to prevent the transmission of the infection. In the said Order it has been highlighted inter alia as follows: <*** B. Weekend shutdown In the interest of public health and containment of spread of Covid-19 in the State, weekend shutdown on Saturday and Sunday shall be imposed in all Urban areas of the State w.e.f. 9PM of 24.04.2021. W.P.(C) No.2220 of 2022 Page 18 of 60 During the weekend shutdown all activities shall be closed except the following: *** Dhabas along National and State Highways/ Major roads for takeaway only. *** F. Commercial 1. Haats and Markets including fish markets shall be decentralized and allowed to operate with minimum 30 feet distance from shop to shop. The shopkeepers and the buyers shall mandatorily abide by the Covid safety protocols like social distancing, use of mask. The local authorities shall demarcate areas for this purpose. Any violation of COVID-19 protocols will attract closure/sealing/cancellation of license of the concerned shops. 2. Malls shall operate with reduced number of customers. The mall Owner shall ensure that persons entering malls are thoroughly screened for temperature, correct use of masks and physical distancing. No food court shall be open for seat- in dining. Only take away shall be allowed. No one shall be allowed to take/consume food in the mall premises. It shall be the responsibility of the owner/ management of the mall to ensure that there is no overcrowding at any point of time within the shops and common areas. 3. the It shall be responsibility of all shop owners/shopkeepers and market associations to ensure that all their staff put on mask during the entire period of their stay in the shop premises. W.P.(C) No.2220 of 2022 Page 19 of 60 Under no circumstances, violation of this instruction will be tolerated. 4. All buyers/visitors/consumers coming to the shop shall mandatorily use mask correctly. The market association/ shop owners/ shop keepers shall ensure this in letter and spirit. 5. Number of visitors/buyers to the shop shall be regulated by the market association/shop owners/ shop keepers in such a way that a physical distance of 6(six) feet is maintained between buyer to buyer and buyer to shop keeper during the entire period of their stay in the shop. 6. The shop keepers shall make arrangement for thermal scanning and sanitizer/hand washing for the buyers before allowing them to enter into the shop. 7. Over-crowding inside the shop shall not be allowed under any circumstances. Not adhering to the COVID safety protocols, or violating any previous orders regarding COVID safety regulations shall constitute offence under Disaster Management Act, 2005 and Epidemic Disease Act, 1897. The trade licensing authorities may seal the shop and/ or suspend/ cancel the trade license for appropriate duration as per relevant rules/guidelines/orders of the local authorities in case of violation of the COVID safety protocols. 8. The daily Hatts/Markets/Fish markets in addition to the above instructions shall ensure raising of barricades between them and the buyers so that a minimum six feet distance is maintained between them. A gap of twenty feet is to be maintained W.P.(C) No.2220 of 2022 Page 20 of 60 between two shops. It will be the responsibility of the shop keepers to put space marking for the buyers to ensure observance of COVID safety protocol during business hours. Anybody violating the space marking must not be provided with good and services by the shop keepers. 9. Hotels/Restaurants shall not allow outside persons (other than their in-house resident guests) to dine inside the hotel and its restaurants in due compliance of Covid-19 protocols. However, hotels/restaurants can serve take away food to customers/buyers/ clients. Further the hotels/restaurants can take on-line orders and deliver take away food to the customers. 10. No Street Food Vendors shall serve food to consumers at the venue. They can, however, serve take away food to customers/buyers/clients. While clients/consumers/buyers come to such units for ordering take away food, the food stall/joint owner shall ensure compliance of all Covid-19 protocols. Any deviation/non-compliance shall entail criminal action and penalty as per law and may make such unit liable for sealing/closure and suspension/ cancellation of trade license and levy of penalty. *** K. Penal provisions Any person violating these measures will be liable to be proceeded against the provisions of Section 51 to 60 of the Disaster Management Act, 2005, the Epidemic Diseases Act, 1897 and Regulations issued thereunder besides in accordance with W.P.(C) No.2220 of 2022 Page 21 of 60 legal action under Section 188 of the IPC and other legal provisions as applicable.= 9.6. Taking cue from aforesaid guidelines the learned Senior Counsel appearing for the petitioner submitted that when such was the restriction in the State of Odisha at the relevant period, the petitioner has been doing the business only <on take away basis= in obedience of such prohibitory orders of the Government. This itself cannot be the basis to de-classify its business from the category of <restaurant services=. The general nature of transactions carried on by the petitioner could not be judged on the foundation of situational disadvantage prevailing during April, 2021. As the inspection report was not confronted to the petitioner, it had been deprived of explaining the position to the AAAR. 9.7. The report, submitted during the currency of said Order dated 19.04.2021, could not be utilised for conceiving general appreciation of factual aspect whether the activity of the petitioner would fall within the connotation of <restaurant service=. Hence, the perception of the AAAR does not stand to reason. Amplifying his arguments Sri Jagabandhu Sahoo, learned Senior Advocate along with Smt. Kajal Sahoo, learned Advocate placed on record the Circular bearing No. 164/20/2021-GST [CBIC-190354/207/2021-TO (TRU-11)-CBEC], dated 06.10.2021 issued by W.P.(C) No.2220 of 2022 Page 22 of 60 Government of India, Ministry of Finance, Department of Revenue (Tax Research Unit), wherein it has been clarified that, <3.2. The word 8RESTAURANT SERVICE9 is defined in Notification No. 11/20174 CTR as below: 8Restaurant service 9 means supply, by way of or as part of any service, of goods, being food or any other article for human consumption or any drink, provided by a restaurant, eating Joint including mess, canteen, whether for consumption on or away from the from the premises where such food or any other article for human consumption or drink is supplied. 3.3. The explanatory notes to the classification of service state that 8RESTAURANT SERVICE9 includes services provided by Restaurants, Cafes and similar eating facilities including take away services, room services and door delivery of food. Therefore, it is clear that takeaway services and door delivery services for consumption of food are also considered as restaurant services provided by cloud kitchens/central kitchens. 3.4. Accordingly, as recommended by the Council, it is clarified that service provided by way of cooking and supply of food, by cloud kitchens/central kitchens are covered under 8RESTAURANT SERVICE9, as defined in Notification No. 11/2017-Central Tax (Rate) and attract 5% GST [without ITC].= Therefore, the learned Senior Counsel submitted that the perception of the Appellate Authority based on dictionary meaning is unwarranted and uncalled for. W.P.(C) No.2220 of 2022 Page 23 of 60 9.8. Sri Jagabandhu Sahoo, learned Senior Counsel expanding the submission further urged that in order to examine whether the supply of goods and services by the petitioner would fall within the expression employed in appropriate notification relating to rate of GST, the AAAR laid much stress on dictionary meaning, which is impermissible in law. It is trite that where no definition is provided in the statute itself, as in this case, for ascertaining the correct meaning of a fiscal entry reference to a dictionary is not always safe. The correct guide, it appears in such a case, is the context and the trade meaning. In this connection reference may be made to the observations in CST Vrs. S.N. Brothers,