TMI Blog2024 (5) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... would have adopted a more comprehensive approach in rendering its ruling in the present case if it had documented its observations and findings regarding satisfaction of all the conditions required for deciding the eligibility for the exemption under entry 41 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017. The WBAAR order requires modification as while pronouncing the Advance Ruling in the instant case ruling/order issued is restricted to a single condition of the pertinent notification - it is deemed appropriate to remand the case to the Authority for Advance Ruling, i.e. the WBAAR for fresh decision. The WBAAR will take into consideration all aspects of the matter and decide the case afresh. Matter on remand. - MR SHRAWAN KUMAR AND MR DEVI PRASAD KARANAM, MEMBER Present for the Appellant: Mr. Ankit Kanodia, Advocate Present for the Respondent: Mr. Sayandeep Sen, DCST. At the outset we would like to make it clear that the provisions of the Central Goods and Services Tax Act, 2017 and West Bengal Goods and Services Tax Act, 2017 (hereinafter referred to as the 'CGST Act, 2017' and the 'SGST Act, 2017') are in pari materia and have the same provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the land for industrial purposes by SMPK to the applicant is found not to be covered under entry 41 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 and therefore cannot be treated as an exempt supply. 6. The appellant has filed the instant appeal against the above-mentioned Advance Ruling dated 20.12.2023 with a prayer to set aside/modify the said order; to grant personal hearing; and to pass such further order or other orders as may be deemed fit and proper in the facts and circumstances of the case. 7. The instant appeal has been filed by the appellant mainly on the grounds that: i. The WBAAR has failed to consider that the status/ownership of SMPK is to be determined by control and that the control is vested under Central Government and the same is exercised by the Ministry of Ports, Shipping and Waterways, Govt. of India, thus making the appellant eligible for exemption under Entry No. 41 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended. ii. The Appellant was denied the opportunity to present a rebuttal to the reply that SMPK had filed with the WBAAR. 8. The appellant has also inter alia submitted in its appeal, the following poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done by the C AG under Section 19(2) of the Comptroller and Auditor General s (Duties, Powers and Conditions of Service) Act, 1971 read with Section 44(2) of the Major Port Authority Act, 2021 and everywhere in the audit report the regulations of The Ministry of Ports, Shipping and Waterways (MPSW), Government of India has been referred to. x. The Appellant further stated that from the provisions of the Major Port Authorities Act, 2021, it could be seen that the said act has been promulgated for the purposes of administration of the Major Ports in such manner as provided, concluding that the control of the said Major Ports rests with the Central Government as there is no share capital in such organisations to determine the ownership in terms of percentage of share capital. xi. The appellant also referred to the website of the SMPK drawing attention to the heading which says that SMPK is an autonomous body under the Ministry of Ports, Shipping and Waterways, Govt of India. The appellant further mentioned the website of the Ministry of Ports, Shipping and Waterways, Govt of India which also denotes SMPK as an Autonomous Body under its administrative control. xii. It was finally submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Major Port Authority constituted under this Act shall be a permanent body having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold or dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. The Revenue thus concluded that the Board of SMPK is empowered to acquire, hold or dispose of property. iv. The Revenue further pointed out that the Board of SMPK is the successor of the Board of Trustees constituted under the Major Port Trust Act, 1963 and all the assets and liabilities of the Board of Trustees were transferred to the Board u/s 21 of the Act, thus SMPK is holding their properties inherited from the Board of Trustees. v. The Revenue also referenced Section 23 of the Major Port Authorities Act, 2021 emphasising that it clearly distinguishes the authority of the Board and the Central Government, in the matter that, where any immovable property is required for the purposes of the Board, the Central Government, or as the case may be, the State Government may, at the request of the Board, procure the acquisition thereof under the provisions of the Right to Fair Compensatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submitted that there have been several orders of remand by different Appellate Authorities and he would submit copies of a few such orders in couple of days. He reiterated the submission made before the WBAAR on other eligibility conditions of the entry 41 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, and contended that they fulfil such conditions. 9.4 Subsequently, vide mail dated 03.04.2024, the Authorised Representative of the appellant forwarded copies of the following three orders where the matter has been remanded by the Appellate Authority to the Advance Ruling Authority for reconsideration and passing of fresh orders: i) A.M. Abdul Rahman Rowther Co. Tamil Nadu AAAR - vide Order dated 21.10.2019; ii) Hilti Manufacturing India Pvt. Ltd. AAAR Gujarat vide Order dated 27.09.2022 iii) Mannarari Common Effluent Treatment Plant Pvt. Ltd. AAAR Tamil Nadu vide Order dated 20.12.2023. 10. Discussion and Findings: 10.1 We have carefully gone through and considered the appeal, the submissions made by the appellant and the revenue, the documents placed before us by both the parties and the Advance Ruling given by the WBAAR in the instant case. We are of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on the long term lease of the plots by the original lessor to the original lessee subject to above condition and that the parties to the said agreements undertake to comply with the same. 10.3 Careful examination of the WBAAR's Order dated 20.12.2023 issued in response to the appellant's application for advance ruling, reveal that the WBAAR order mentioned the appellant's submission concerning the criterion that must be fulfilled in order to qualify for the exemption as specified in entry 41 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017. The WBAAR has summarised the same as under: The applicant submits that to qualify for exemption under the aforesaid entry, following conditions need to be satisfied- I. Firstly, lease period should be of thirty years or more. II. Secondly, the property leased should be an Industrial plot or plots for development of infrastructure for financial business. III. Thirdly, service provider must be a state Government Industrial Development Corporations or Undertakings or by any other entity having 20 per cent. or more ownership of Central Government, State Government, Union territory (either directly or through an entity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of remand to adjudicate the matter de novo after giving due hearing to the assessee. Thus, we are of the view that power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944. 10.10 It is also observed that the direction for remand has also been resorted to by other AAARs in a number of cases, like: iv) A.M. Abdul Rahman Rowther Co. Tamil Nadu AAAR - vide Order dated 21.10.2019; v) Hilti Manufacturing India Pvt. Ltd. AAAR Gujarat vide Order dated 27.09.2022 vi) Mannarari Common Effluent Treatment Plant Pvt. Ltd. AAAR Tamil Nadu vide Order dated 20.12.2023. 10.11 In light of the preceding discussion, we deem it appropriate to remand the case to the Authority for Advance Ruling, i.e. the WBAAR for fresh decision. The WBAAR will take into consideration all aspects of the matter and decide the case afresh. 11. In view of the foregoing, we pronounce our ruling as under: Ruling: Without delving into the merit of the case, we set aside the Advance Ruling Order No. 24/WBAAR/2023-24 dated 20.12.2023 issued by the WBAAR in the case of the appellant and remand the case to the WBAAR for fresh decision after considering all aspects of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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