TMI Blog2021 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... ture and these items attract 2.5% CGST - The vital condition for applicability of Sr. No. 234 of Notification No. 1/2017- Central Tax (Rate) is that the devices or parts thereof should be those listed in column 3 thereto. The applicant has claimed their device as Waste to Energy Plant/ Device . The inescapable inference that can be drawn from the entry is that the energy should be inevitably created from waste. In other words the fuel used for obtaining energy should inevitably be waste . The product has been presented by the applicant as Thermic Fluid Heater in their written submission and during the course of personal hearing a brochure was submitted wherein the product has been categorised as Biomass Fired Boiler . The applicant has not clearly specified the functionality of the product and it becomes very difficult to classify the product merely going by the generic interpretation of the name allotted to the product. The product Thermic Fluid Heater/ Boiler gets classified under Chapter 8402 19 90 in terms of the description of the goods as listed under the respective head of the First Schedule to the Customs Tariff. However, the applicability of Sr. No. 234 of Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not produced any documentary evidence such as supply contracts/order for WTEP from the concerned authorities to show that said Agro Waste Thermic Fluid Heater or Boiler is supplied for use in the initial setting up of renewable energy plants and devices including waste to energy plants/devices . Thus, it is seen that the applicant has chosen to omit the vital facts regarding the nature of fuel used for generation of energy and whether the said device is used for initial set-up of renewable energy plants. By providing such partial information, they have sought to claim a decision in their favour. - GUJ/GAAR/R/74/2020 - - - Dated:- 17-9-2020 - SANJAY SAXENA AND MOHIT AGRAWAL, MEMBER Present for the applicant : Shri Nilesh V Suchak BRIEF FACTS The applicant, is engaged in the manufacture of Waste to Energy Plants/Devices viz. Agro Waste Thermic Fluid Heater, which falls under Tariff Item 8402 19 90 as Tariff Item 8402 covers within its ambit Steam or other Vapour Generating Boilers. The goods are manufactured and supplied from applicant's Unit I located at 178/1/C, 181/2/3, GIDC, Naroda, Ahmedabad-382330 and/or Unit II located at D/2/E-76, GIDC Industrial Es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se leviable thereon under Sl. No.332, List 8, Sl. No.16 of Notification No.12/2012-Central Excise and relevant extract of said Notification is given below for ready reference: S.No. Chapter/Heading/ Subheading/ Tariff item Description of goods Rate Condition No. (1) (2) (3) (4) (5) 332 Any Chapter84 or 85 Non-conventional energy devices or system specified in List 8 Nil - LIST 8 (See S. No. 332) (1) Flat plate solar Collector (2) Black continuously plated solar selective coating sheets (in cut length or in coil) and fins and tubes (3) Concentrating and pipe type solar collector (4) Solar cooker (5) Solar water heater and system (6) Solar air heating system (7) Solar low pressure steam system (8) Solar stills and desalination system (9) Solar pump based on solar thermal and solar photovoltaic conversion (10) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er State GST law and IGST Act? Statement containing the applicant s interpretation of law and/or facts, as the case may be, in respect of aforesaid question(s) (i.e. applicant s view point and submission on issues on which the advance ruling is sought). 9. The applicant is of the bona fide belief that Biomas Fired Boilers or Agro waste Thermic Fluid Heater or Boiler supplied by it stands covered under Tariff Item 84021990 of the First Schedule to the Customs Act, 1975. Since the said goods are renewable devices and parts for their manufacture as they generate energy from agro waste of biomass. 9.1 The applicant is a manufacturer of Agro Waste Thermic Fluid Heater and/or Biomass Fired Boilers for providing renewable energy solutions specifically for Biomass. 9.2 Waste to energy plants/devices or renewable energy devices and parts for their manufacture as specified under Sl. No.234 of Schedule I to the Notification No.1/2017-Central Tax (Rate),dated 28.06.2017 specifically covers all goods falling under Chapter 84 that would attract Central GST rate of 2.5% and, hence, the total rate of GST including SGST would be 5% and the rate o IGST would be 5%. 9.3 Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aters or boilers are high efficiency Biomass Fired Boilers that uses agro waste or biomass materials for generation of energy. They submitted the catalogue of High Efficiency Biomass Fired Boilers , the image of the same is scanned below: (iii) According to Sl. No.234 of Schedule I to Notification No.1/2017-CT (Rate) dated 28.06.2017, the Central Tax Rate of 2.5% is payable on renewable energy devices and parts for their manufacture as specified therein and falling under Chapter 84 or 85. (iv) As similar rate of 2.5% tax applicable under State GST Law, total GST payable on above stated goods covered at Sl. No.234, would be 5% i.e. 2.5% CGST 2.5% SGST. Similarly, in terms of Sl. No.234 of Schedule I to Notification No.1/2017-Integrated Tax (Rate) dated 28.06.2017, the rate of IGST applicable is 5% for the same. (v) Prior to introduction of GST, such Agro Waste Thermic Fluid Heaters falling under Central Excise Tariff Item 84021990 was exempt from levy of whole of the duty of excise leviable thereon under Sl. No.332, List 8, Sl. No.16 of Notification No.12/2012-Central Excise. (vi) They have submitted ER-1 Return for the month of May, 2017 to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 28.06.2017, attracting 5% levy. (xii) The applicant further submitted that in the GST Notifications, the scope of the entry includes renewable energy devices parts for the manufacture. Further, the specific entry reads as waste to energy plants/devices . The text of the entry itself shows a clear departure from the exemption Notification in the Central Excise Regime in as much as the entry is not limited to waste conversion device producing energy only includes waste to energy plants/devices in its entirety and includes parts used for the manufacture of the waste to energy plants/devices. The entry does not specify that the device or parts are required to either Produce or covert energy. The present GST Notifications not only includes the boilers used in conversion of waste to heat energy but also includes all the equipment falling under Chapter Heading 84, 85 94 of the Customs Tariff Act, 1975 used in the entire process of converting waste to energy. The applicant submitted that once it is undisputed that the entire system comprising of the Agro Waste Thermic Fluid Heaters or Biomass Fired Boilers is required for converting waste to energy, the same wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for consideration before the Authority was whether the Air-Cooled Condenser (ACC) to be supplied by the applicant to the buyer for use in the waste to energy project is classifiable as part for the manufacture of waste to energy plants/ devices attracting 5% IGST or 2.5% CGST and 2.5% APGST. The Ld. Authority has held that ACC being an integral part of waste to energy plants are covered under the Entry No.234 of Schedule I of Notification No.1/2017-C.T. (Rate), dated 28-06-2017. (xv) In view of the above rulings, they submitted that they are also eligible to the concessional rate of total GST of 5% and not granting of the benefit of 5% in the instant case would result in discrimination of this applicant against other assessees who have received the benefit of Entry 234 for parts/devices used in Waste to Energy manufacturing plants. They further relied upon case of Damodar J. Malpani v. Collector of Customs, Bombay reported in 2000 (115) E.L.T. 42(S.C.) = 2002 (9) TMI 114 - SUPREME COURT , wherein the Hon ble SC has held that not granting benefit or exemption to similarly placed assesses would amount to discrimination. (xvi) In view of the above facts, this applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduct, it is an energy generation device, which merits classification in Chapter heading 8402 of the First Schedule to the Customs Act, 1975, which is reproduced below: 8402 STEAM OR OTHER VAPOUR GENERATING BOILERS (OTHER THAN CENTRAL HEATING HOT WATER BOILERS CAPABLE ALSO OF PRODUCING LOW PRESSURE STEAM); SUPER-HEATED WATER BOILERS - Steam or other vapour generating boilers: 8402 11 00 Watertube boilers with a steam production exceeding 45t per hour 8402 12 00 -- Water tube boilers with a steam production not exceeding 45t per hour 8402 19 -- Other vapour generating boilers, including hybrid boilers: 8402 19 10 --- Fire tube horizontal (lancashire) boilers 8402 19 20 --- Fire tube boilers vertical 8402 19 90 --- Other 8402 20 00 - Super-heated water boilers 8402 90 - Parts: 8402 90 10 --- Parts of fire tube boilers 8402 90 20 --- Parts of watertube boilers 8402 90 90 --- Other Thus, the impugned product is classifiable under heading 8402 19 19 of the First Schedule to the Customs Tariff Act, 1975, being a Thermic Fluid Heater or Boiler. 15. The Notification No.1/2017-Central Tax (Rate) dated 28.06.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Fuel Fired Thermic Fluid Heater, the following products have been listed: Compact Modular Moving/ Reciprocating Grate Solid Fuel Fired Thermal Oil Heater Fluidized Bed Combustor Thermic Fluid Heater Compact moving grate type Solid Fuel Fired Thermal Oil Heater The nearest product that matches the description to the product under consideration is Fluidized Bed Combustor Thermic Fluid Heater . The fuel used for generating heat from the said product has been specified as Imported coal, rice husk, lignite, etc. as evident from the image produced below: 16.3 Likewise, under the category of Industrial Boiler, the following products have been listed: Solid Fired Steam Boiler Biomass Steam Boilers Gas Boiler The nearest match, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No.1/2017- Integrated Tax (Rate) in case of Inter-State supply. 18. The case laws of M/s Boldrocchi India Pvt. Ltd. [2019 (22) G.S.T.L. 135 (A.A.R.-GST)] = 2019 (2) TMI 1003 - AUTHORITY FOR ADVANCE RULING, HARYANA , M/s Triveni Turbine Ltd. [2019 (23) G.S.T.L.549 (App. A.A.R.-GST)] = 2019 (4) TMI 383 - APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA , M/s Mukund Ltd., reported at 2018 (18) GSTL 327 (A.AR.-GST) = 2018 (10) TMI 1243 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA and M/s. Enexio Power Cooling Solutions India Pvt. Ltd., reported in 2018 (19) GSTL 135 (A.A.R.-GST) = 2018 (11) TMI 446 - AUTHORITY FOR ADVANCE RULING, ANDHRA PRADESH relied upon by the applicant are not applicable to the facts of the present case in as much as the claim of the applicant to the effect that the product is a Waste to Energy Plant/ Device gets nipped in the bud as discussed hereinabove. 19. Further, it is to mention that the applicant has referred to CBEC (TRU) Circular No.80/54/2018-GST issued from F. No. 354 / 432 / 2018-TRU dated 31st December, 2018, clarifying GST rates classification in respect of various goods. Vide para 11, clarification has been issued rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gy plants and devices including WTEP. Though, the applicant has claimed the benefit of Sr. No.234 of Notification No.1/2017-Central Tax (Rate), they have not produced any documentary evidence such as supply contracts/order for WTEP from the concerned authorities to show that said Agro Waste Thermic Fluid Heater or Boiler is supplied for use in the initial setting up of renewable energy plants and devices including waste to energy plants/devices . Thus, it is seen that the applicant has chosen to omit the vital facts regarding the nature of fuel used for generation of energy and whether the said device is used for initial set-up of renewable energy plants. By providing such partial information, they have sought to claim a decision in their favour. 20. In light of the above discussions, we rule as under R U L I N G Question : What is the classification and rate of tax payable in respect of Agro Waste Thermic Fluid Heater or Boiler and parts thereof considering the applicability of Sl. No. 234 of Schedule I to Notification No.1/2017-Central Tax (Rate), dated 28.06.2017 and corresponding notifications issued under State GST law and IGST Act? Answer : The Agro Was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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