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2021 (8) TMI 387 - Commissioner - GSTRefund of of Tax paid inadvertently to the government exchequer - Section 54 of CGST Act, 2017 - Whether payment, in the form of License Fee (LF) for issuance of License and Spectrum Usage Charges (SUC) for use of spectrum, as a percentage of the ‘Adjusted Gross Revenue’ (AGR) to ‘Department of Telecommunications’ (DoT) is a ‘Supply’ under GST law or not? Whether issuance of license and allotment of spectrum as a ‘Regulatory fee’ attract any levy of tax as per GST law or not? - HELD THAT:- The rendering of service from the Government (DoT) to business entities, (in the instant case ’the appellant’) established from the aforesaid statutory provision. Therefore, the levy of GST is appropriately applicable on the appellant as per sub-section (3) of Section 9 of the CGST Act, 2017 read with Notification No. 13/2017-Central Tax (Rate), dated 28 June, 2017 - if there was any doubt regarding ‘taxability of service’ then the appellant was free to approach the Authority for Advance Ruling (AAR) as per clause (e) of sub-section (2) of Section 97 of CGST Act, 2017, because question of law about determination of the liability to pay tax on any service may be sought for advance ruling to AAR as per GST law, but the same was not opted by the appellant. Whether LF and SUC charges are ‘consideration’ for supply as per GST law or not? - HELD THAT:- The permission of granting of License by DoT and allotment of spectrum on the basis of SUC for business activities is directly nexed with their revenue, hence, it cannot be held that these charges are regulatory fee - Further, as per Section 4 of the Telegraph Act “The Government merely grants/delegates permission of carrying out the establishing, maintaining and working telegraphs”. Granting permission for carry out the establishing, maintaining and working telegraphs and allocation of spectrum is a service which falls under HSN Head 997338 which specifically defines “Licensing services for right to use other natural resources including telecommunication spectrum” - If no GST is leviable on grant of license then why a service category at HSN Head 997338 as “Licensing services for right to use other natural resources including telecommunication spectrum” has been specified in the GST Act. Thus, it can be concluded that such type of services ‘License Services for right to use other natural resources including Teleservices Spectrum’ are not regulatory fee and are taxable as per GST law under the specific Head 997338 meant for such services. The consideration in the form of LF and SUC paid by the appellant to the government is ‘consideration’ as per clause (31) of Section 2 of CGST Act, 2017 which cover all the elements specified under ibid section of the Act. There are service provider as well as service recipient and the element of consideration is also involved in the instant case. Hence, the taxability is fasten on these payments as per GST Act. Whether impugned order is non-speaking order? - HELD THAT:- The fact to be appreciated is that the rate amendments carried out vide Notification No. 27/2018-Central Tax (Rate), dated 31-12-2018 is nothing but to clarify the legislative intent as well as to resolve the unintended interpretations. Hence, the rate of tax specified vide Notification No. 27/2018-Central Tax (Rate), dated 31-12-2018 is very much applicable to the disputed period and as such the prevalent rate, at which appellant has paid, found in order. Whether License fee and Spectrum usage charges paid by the Appellant are covered in Service Rate Notification and are leviable to tax or not? - HELD THAT:- “Licensing services for right to use other natural resources including telecommunication spectrum” is specified in HSN sub-heading 997338, whereby taxability of said service has been fastened as per Notification No. 11/2017-Central Tax (Rate), dated 28-6-2017. Since, taxability of service in question has been specified in the Act, then it cannot be interpreted that it will not be taxed and refund will be issued for the GST payment in this regard. Further, all the submissions/averment of the appellant have been taken up for discussion in the instant appeal case. Therefore, there are no any merit of the appellant in this context. Appeal dismissed.
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