TMI Blog2024 (4) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... tried to suggest that the power includes the steam, as held by this Court in the decision in the case of Jay Chemical Industries Ltd [ 2020 (3) TMI 231 - GUJARAT HIGH COURT] , in which, this Court has held that the steam can be considered as power to grant the benefit of deduction under Section 80IA(4) of Income Tax Act. Reference was also made by the Appellate Authority on the Gujarat Waste to Energy Policy 2016 dated 28th March 2016, which refers to the generation of the power in form of electricity power. Therefore, while analyzing the Entry at Serial No. 234/201A, the renewable energy devices and parts for the manufactured would refer to the Biogas, Solar Power generating system, Wind mills or Wind Mills Operating Electricity Generator and Waste to Energy Plant relating thereto only. Therefore, in the facts of the case, the petitioner is stated to have been manufacturing the Boilers / thermal heaters by using the non-conventional fuel would not be qualified for Waste to Energy Plants and devices, as rightly held by the appellate authority. This petition, being devoid of any merits, is, accordingly, dismissed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s manufactured by the petitioner exclusively for its non-conventional fuel i.e. Agro Waste only for generation of steam. It was submitted that the Agro Waste Thermic Fluid Heaters exclusively uses Agro waste. It is therefore the case of the petitioner that both Biomass / Agro Fired Steam Boilers as well as the Agro Waste Thermic Fluid Heaters would be classifiable under the Chapter Heading No. 8402 19 90 to the Customs Tariff Act, 1975, which is also adopted for classifying the goods under the GST regime for determining rate of tax and supply of the goods. Reference was made to the Central Government Notification No.01/2017 dated 28th June 2017, which notifies different rates of GST applicable on different goods. As per the Schedule-II, Entry No. 201A prescribes rates for Chapter 84, 85 or 94 with regard to renewable energy devices and parts for their manufacture, which includes Bio-gas plant, Solar power based devices, Solar power generating system, Wind mills, Wind Operated Electricity Generator, Waste to Energy Plant / devices, Solar lantern / solar lamp, Ocean waves / tidal waves energy devices/plants, Photo voltaic Cells, whether or not assembled in modules or made up into pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After providing an opportunity of hearing to the petitioner, the Gujarat Appellate Authority for advance ruling, by order dated 8th April 2021, upholding the ruling of the Gujarat Advance Ruling Authority, held that as per the Annual Report for the year 2019-20 of the Ministry of New and Renewable Energy, Waste to Energy Plant includes recovery from energy in the form of Biogas / Bio-CNG / Enriched Bio-gas / Power and since the goods manufactured by the petitioner do not recover energy in the form of Biogas / Bio-CNG / Enriched Bio-gas / Power, the same are not eligible for lower rate of GST. [6] Being aggrieved, the petitioner has challenged both the orders passed by the Gujarat Advance Ruling Authority as well as the Gujarat Appellate Authority for Advance Ruling by preferring this petition. [7] Learned advocate Mr. Hardik Modh for the petitioner submitted that the goods i.e. Biomass / Agro Fired (Steam) Boilers and the Agro Waste Thermic Heaters are only using the nonconventional fuel of Agro Waste such as rice, coconut shell, groundnut shell, cotton stalk, bagasse, etc, and therefore, both the products manufactured by the petitioner ought to have been considered for lower rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, carried out the performance testing for one hour, by using the Agro Waste as fuel and it was found in good working condition as per the manufacturer catalogue specification. It was further certified that the product is exclusively designed to use Agro Waste fuels and not suitable for use of conventional fuels like oil/gas/coal, etc. It was, therefore, submitted that the appellate authority, considering such certificate, has not raised any issue with regard to use of the non-conventional fuel, but, in the impugned order, the appellate authority has accepted the contention of the petitioner that the Biomass Fired (Steam) Boilers and Agro Waste Thermic Fluid Heaters of the petitioner are admittedly using the Agro Waste (Biomass) and not conventional fuels like Coal and Lignite. It was submitted that the Appellate Authority, however, rejected the appeal of the petitioner only on the ground that the products manufactured by the petitioner using non-conventional fuels are admittedly not Waste to Energy Plants , which according to the Appellate Authority, denotes a particular meaning and plants for recovery of the energy in the form of Biogas / Bio-CNG / Electricity from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of GST as per the Entry No. 201A of the Schedule-II of the GST Act. [11] Learned advocate Mr. Modh submitted that this petition is maintainable under Article 226 of the Constitution and this Court may quash and set aside the impugned order in exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. [12] On the other hand, learned advocate Mr. Ayaan Patel for the respondents Nos. 2 and 3 submitted that both the Gujarat Advance Ruling Authority and the Appellate Authority have rightly rejected the claim of the petitioner of lower rate of GST in view of the fact that the petitioner has not submitted any document in support of the claim for use of the non-conventional fuel before the Advance Ruling Authority and it is the petitioner for the first time tried to justify such claim by producing certificate issued by a third party-private agency, which is as such would not be reliable for the purpose of granting lower rate of tax. Reliance was placed on the affidavit-in-reply filed on behalf of the respondents Nos. 2 and 3, wherein it is categorically averred that both the authorities i.e. Advance Ruling Authority and the Appellate Authority have rightly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned advocates for both the sides and considering the facts of the case, it appears that the petitioner has made the application before the Gujarat Advance Ruling Authority for availing the lower rate of GST relying upon the Entry No. 234 / 201A as per the Notification No. 01/2017. On perusal of the application filed by the petitioner, it appears that except making an averment to the effect that the non-conventional fuel is required to be used for generation of steam in the Boilers and the Agro Waste Thermic Fluid Heaters produced by the petitioner, the petitioner failed to place on record any material to substantiate such claim. The Gujarat Advance Ruling Authority, while considering this aspect, has held as under: 16.1 For the purpose of ascertaining the type of fuel used for the said device, we have referred to the official website of the applicant wherein the products manufactured by them are portrayed. They have mainly categorised their product in four classes viz. Industrial Boiler, Solid Fuel Fired Thermic Fluid Heater, Solid Fuel Fired Boiler and Industrial Boilers which is evident from the following screen-shot of the relevant page: 16.2 Under the category of Solid F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able inference that the fuel used for generation of energy is not waste but conventional energy generating elements. Resultantly, we find that the rates as specified at Sr. No. 234 of Notification No. 1/2017-Central Tax (Rate) will not be applicable to the product under consideration. [15] Thus, the Advance Ruling Authority, after considering the material extracted from the website of the petitioner, came to the conclusion that the fuel used for generating heat for the products manufactured by the petitioner has been specified as Imported Coal, Rice husk, Lignite, etc. and in absence of any particular documentary evidence on record produced by the petitioner in support of the claim, the Advance Ruling Authority has come to the conclusion on the basis of the facts which are narrated hereinabove and on the basis of such facts, the Advance Ruling Authority denied the benefit of Entry No. 234 / 201A of Schedule-I to the Notification No. 01/2017 to the petitioner. It appears that without trying to justify the claim before the appellate authority by placing on record the certificate issued by the third party Inspecting Agency with regard to both the products, however, the petitioner fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/2017 refers to items Bio-gas plant, Solar power based devices, Solar power generating system, Wind mills, Waste to Energy Plant / devices Solar lantern / Solar lamp, Ocean waves, Photo voltaic Cells, etc., meaning thereby, that the Waste to Energy Plants / devices would include only the devices or the plants, which generates energy and though the steam is included in energy and to be termed as power by this Court, the Appellate Authority has rightly analyzed the same in the impugned order as under: 9.6 It is thus evident that the phrase Waste to Energy Plants denotes a particular meaning. The said phrase refers to the plants for recovery of energy in the form of Biogas / BioCNG / Electricity from agricultural, industrial and urban wastes of renewable nature such as municipal solid wastes (MSW), vegetable and other market wastes, etc. Therefore, the approach of referring to the dictionary meaning of each of the terms Waste , Energy and Plant separately, as suggested by the appellant, would not be correct approach to understand the true meaning of the phrase Waste to energy plants/devices used at clause (e) of Entry at Sl. No. 234 of Schedule I of Notification No. 1/2017-Central Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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