ORDER :

C.PRAVEEN KUMAR, J.

The short question that arises for consideration in present writ petition is “whether alcoholic liquor for human consumption falls within the meaning of food or food products”?

2. The circumstances, which led, to filing of writ petition, as under:

The petitioner herein is a manufacturer of Indian Made Foreign liquor having its distillery at Karakambadi Village, Chittoor District and is a franchisee of M/s.United Spirits Limited, Bangalore for manufacture of “McDowell” brand alcoholic beverages like rum, whisky and brandy. [It purchases extra neutral alcohol from various distilleries, food flavours, special spirits and caramel from registered dealers situated within the State of Andhra Pradesh as well as from dealers located outside the State of Andhra Pradesh]. An Assessment came to be made by the Respondent No. 1 for the Tax Period of 2017-2018, 2018-2019 & 2019-2020 in levying CGST amounting to Rs. 24,94,104/- with penalty and interest under CGST & IGST. The same is challenged on the ground that the job work charges relatable to manufacture of Alcoholic liquor in view of Notification No.6/2021-Central Tax (Rate) dated 30.09.2021 issued by the Department of Revenue, Ministry of Finance, Government of India, published in the gazette on 30.09.2021, at the rate of 18% as against 5% is illegal and contrary to law.

3. Heard Sri S. Suribabu, learned counsel for the petitioner, Sri Y.N. Vivekananda, learned Government Pleader for Commercial Tax, appearing for respondent Nos.1, 2, 4 and 5; and Sri N. Harinath, learned Deputy Solicitor General appearing for respondent No.3, and perused the record.

4. The learned counsel for the petitioner took us through the Notification, dated 28.06.2017, issued vide Notification No.11/2017, Notification No.31/2017, dated 13.10.2017 and Notification No.6/21, dated 30.09.2021, to show that a reading of the same would clearly establish that for the work done by the petitioner, it has to pay tax @ 5% tax and imposition of 18% by the assessing authority is bad in law.

5. He would submit that since the product manufactured by the petitioner i.e., alcohol/beverages/liquor falls under Chapter 22 of the First Schedule to the Customs Tariff Act, the respondents can only demand payment of tax at 5% and not at 18%. In other words, the argument of the learned counsel for the petitioner appears to be that since liquor also falls within the category of “Food and food products” under Chapter 22, as it was sought to be inserted at serial No.26 after clause ‘e’, the rate of tax payable is only 5%.

6. Learned counsel for the petitioner further contends that having regard to Notification No.6/2021, dated 30.09.2021, which came into from 01.10.2021, the services by way of job work can only be taxed at 5% and not at 18% as no notification is published in the Gazette till 30.09.2021. In other words, Sri Suri Babu, learned counsel, would contend that the said notification, even if acceptable, can only be prospective in operation but not retrospective.

7. However, Sri Y.N. Vivekananda, learned Government Pleader for Commercial Tax appearing for the State, would submit that when the issue involves disputed questions of fact, the proper remedy for the petitioner is to file an appeal. Even otherwise, he would contend that there is no necessity for any Gazette Publication in respect of Circulars issued by G.S.T. Council from time to time. Referring to Notification Nos.11/2017 and 6/2021 coupled with Notification No.31/2017, he would contend that the argument of the learned counsel that Notification No.11/2017 is substituted by Notification No.6/2021 is not correct. On the other hand, he would contend that the issue before the Court is whether all food and food products falling under Chapter 1 of First Schedule to the Customs Tariff Act, 1975 includes alcohol. In other words, his argument appears to be tha