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TMI Blog2022 (2) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, the expression 'GST Act' would mean CGST Act and MGST Act. 2. FACTS AND CONTENTION - AS PER THE APPLICANT The submissions made by M/s Sterlite Technologies Limited, the applicant are as under:- 2.1. Applicant manufactures telecom products such as optic fiber, optic fiber cable, etc.; lays the optic fiber cables (either underground or hung overhead) to create a network, sets up control centers, installs equipment necessary to operate network for desired purpose, commissions network and any other ancillary activity that may be necessary for creation of network infrastructure for its customers in telecom industry by way of 'turnkey contracts'. 2.2. To establish countrywide IP/MPLS based multiprotocol converged network, Naval Communication Network (collectively referred as "network"), as core infrastructure for supporting strategic and operational needs, the Indian Navy has entrusted the setting up of these networks to Bharat Sanchor Nigam Limited ("BSNL"), which in-turn has contracted the work to the applicant who has to supply all material an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... walls) may be of high quality bricks. The construction would be governed by the latest standards Indian Standards in vogue for construction of buildings. The minimum distance between this complex and the data center building etc should be governed by the TIA 942 standards. The bidder is to ensure that standards followed for construction of buildings, electrical fittings, plumbing etc should also meet the minimum specifications published by BSNL. On completion of construction, the buildings would have to be handed over to the MES/CPWD. 2. Along with the building following additional infrastructure for the complex is also required:- 2.1 Approach road to building within Naval Station, Provision of security lights around the complex, Security Cameras inside and outside building, Guard post including rest room, Automatic Barrier at main/emergency gates. Access Control Mechanism at entrances to the building, Smoke detector, provisioning of small firefighting appliances, PA system. 2.2 Underground electrical wiring will be done as per the requirement. All switches, cutout, CBS and wires, cables are to be supplied and fitted. All electrical fittings including air conditioners, fans, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (ii) of Entry No. 3 of rate Notification and attract GST at the rate of 18%. 2.9 Post issuance of Order dated 28.03.2019 the rate Notification was amended vide Notification No. 3/2019 C.T.(R) dated 29.03.2019 ("Amendment Notification") whereby Entry No. 3 (ii) as referred in aforesaid Order was omitted with effect from April 01, 2019. Hence, with the said amendment, ratio of Order relating to applicability of tax rate to subject supplies under the contract was rendered redundant with effect from 01.04.2019. 2.10. Hence, Applicant's activities necessitate an analysis qua other relevant entries of rate Notification and Entry No. 3 (vi)(a) of the rate Notification appears to appropriately cover its activities. B. Statement containing the Applicant's interpretation of law and /or facts 2.11 The relevant Entry No. 3(vi)(a) of the rate Notification, is reproduced as under:- SL.NO. CHAPTER SECTION OR HEADING DESCRIPTION OF SERVICE RATE % CONDITION 3 Heading 9954 (Construction services) (vi). Composite supply of works contract as defined in clause (119) of Section 2 of the central Goods and Service Tax Act, 2017 other than that covered by items (i), (ia), (ib), (ic) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, BSNL fulfills the necessary criteria set out under clause 4(x) of the Explanation of the said rate Notification and qualifies as a Government Entity. Consequently, applicant's activities fulfill the condition of 'making supply to Government Entity' as in Entry No. 3(vi) of the rate Notification. ACTIVITIES UNDERTAKEN BY THE APPLICANT RESULT IN CREATION OF 'ORIGINAL WORKS' 2.15 The Applicant submits that the term 'original works' as referred in Entry No. 3(vi)(a) is neither defined under rate Notification nor under the CGST Act. However, Notification No. 12/2017 C.T. (R) dated June 28, 2017 ("Notification No. 12/2017") defines the term 'original works'. Relevant portion of the said exemption notification is reproduced below: 2. Definitions. - For the purposes of this notification, unless the context otherwise requires, - (zs) "original works" means- all new constructions; (i) all types of additions and alterations to abandoned or damaged structures on land that are required to make them workable; (ii) erection, commissioning or installation of plant, machinery or equipment or structures, whether pre-fabricated or otherwise; 2.16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d interior works All the buildings should be constructed with RCC (Reinforced Concrete Construction) Partition walls (non load bearing walls) may be of high-quality bricks. 2. Along with the building the following additional infrastructure for the complex would also be required: - 2.1 Approach road to building within Naval Station 2.5 Underground electrical wiring will be done as per the requirement 3. In addition, a power room to house the silent generators also needs to be constructed. 2.20 Applicant therefore submits that, activities to be undertaken by it are in the nature of erection, commissioning, installation of structure, machinery, construction etc. and therefore duly covered by the term 'original works' as referred to under Entry No. 3(vi)(a) of rate Notification. 2.21 Without prejudice to the above, reference is also drawn to the meaning of the term 'original works' in its common parlance. The 'Oxford Advanced Learner's Dictionary' explains the term 'original' to mean "existing at the beginning' while the term 'works' is explained to mean activities or putting efforts to use materials and achieve a desired result. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t held that "what is required to be done in a manner prescribed by law, ought to be done in that manner only or not at all.". Reliance in this regard is also placed on the decision of the larger Bench of Hon'ble Tribunal in the case of M/s. Avis Electronics Pvt. Ltd., [2000 (117) E.L.T. 571 (Tri.-LB)] 03. CONTENTION -AS PER THE CONCERNED OFFICER: The jurisdictional officer has not made any submissions in the matter. 04. HEARING 4.1 Preliminary hearing in the matter was held on 25.02.2020. Shri. Rohit Jain, Advocate, Shri. Nitin Garg and Shri. Vivek Baj, CA appeared, and requested for admission of the application. Jurisdictional Officer Shri. Sunil Thombare, STO, AUR-VAT-C-013, Aurangabad also appeared. 4.2 The application was admitted and online final hearing held on 14.09.2021 was attended by Shri. Rohit Jain, Advocate and Shri Kali (Cost Accountant). Jurisdictional officer remained absent. 4.3 We heard the matter. 05. OBSERVATIONS AND FINDINGS: 5.1 We have gone through the facts of the case, submissions made by the applicant and order of Advance Ruling in appellant's own case vide Order No. GST-ARA-106/2018-19/B-34 dated March, 28th, 2019. 5.2 The Applicant, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ify as a composite supply of 'works contract' as defined under Section 2 (119) of the CGST Act and (ii) Activities of the Applicant were covered by sub-clause (ii) of Entry No. 3 of rate Notification and attracted GST at the rate of 18%. 5.6 Since, the activities discussed in above mentioned order and the activities under the present application for which applicant has sought Advance Ruling are one and the same and further, since there is no additional information/submission provided by the applicant in the present application, there is no point to deviate from the finding given in the earlier determination, since neither, any appeal seems to have been filed nor any further order is received in the said earlier matter. 5.7 The applicant contends that the Schedule Entry 3 (ii) of Notification 11/2017 -CT (Rate) is deleted Vide Notification No 3/2019 CT (Rate) dated 29th March, 2019. Therefore, the applicant prays that its activities as per the Contract now attracts GST at the rate of 12% vide Entry No. 3 (vi)(a) of Notification No. 11/2017-CT (Rate) dated June 28, 2017. 5.8 To decide under which Schedule entry, the applicant's activities would get covered, after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government, State Government, Union territory or local authority, as the case may be. (x) Composite supply of works contract.... provided by a sub-contractor to the main contractor providing services specified in item (vii) above.... .... --do-- (xi) Services by way of.......... .... .......... (xii) Construction services other than (i), (ii), (iii), (iv), (v), (vi), (vii), (viii),(ix), (x)and (xi) above. 9 - 5.10 Vide Notification No 3/2019-CT(Rate), dated 29th March, 2019, Serial number 3, item (ii) was omitted and further amendments were made in Sr. No 3(i), 3 (iv), 3 (v), 3 (vi) and 3 (xii) and therefore, amended Notification no. 11/2017-CTR dated 28.06.2017 is as under:- SI.No. Chapter, Section or Heading Description of Service Rate (%) Condition (1) (2) (3) (4) (5) 3. Heading 9954 (Construction Services) (i) Construction of a complex, ........... ...... ............... (ii) DELETED ..... ............... (iii).................. (a),(b),(c),......... .... ............... (iv) Composite supply of works.. ... .... ............ (v) Composite supply...... .... ............ (va)............... (vi) Composite supply of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R- dated 28.06.2017, after considering all the headings of the said notification including Sr. No. 3 (vi) (a). The remaining headings are still in existence today and no new headings have been incorporated in the said notification after Notification No 3/2019 Dated 29th March, 2019, which can be considered to be relevant to the applicant's subject activities. Further, at this stage it is crucial to mention that the applicant had accepted the earlier ruling of this Authority. In view of the above, we feel that the subject activity of the applicant will be covered under Since Entry No 3 (xii) of Notification No. 11/2017-CTR- dated 28.06.2017 as amended till date. 5.12 Therefore, activities of the applicant were covered under entry 3 (ii) of the Notification No. 11/2017 CGST (Rate) dated June 28, 2017 and thereafter with effect from 01.04.2019, the said activities are covered under Sr. No. 3 (xii) as amended by Notification No 03/2019 CGST (Rate) dated 29th March, 2019, taxable at the rate of 18%. 06. In view of the extensive deliberations as held hereinabove, we pass an order as follows: ORDER (Under Section 98 of the Central Goods and Services Tax Act, 2017 and the Maharasht ..... X X X X Extracts X X X X X X X X Extracts X X X X
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