TMI Blog2022 (5) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned above and had also not brought out the fact that the said Circular was in existence during the earlier hearing which led to the issuance of Order No. 60/2020-21/B-116 dated 21/12/2021. The arguments were made by the Authorised representatives only on non applicability of Sections 102 and 104 to their case which are not at all acceptable in view of the relevant GST provisions. There is no denial by the applicant that provisions of said circular are not applicable to the facts of present case. The applicant has nowhere explained that on facts, provisions of said circular are not applicable in present case. On the contrary, this is indirect admission by the applicant that the provisions of the said circular are very much applicable to the facts of the present case. Thus, the decision given earlier cannot be said to be founded on sound legal footing. Hence, the above mentioned provisions of the GST Laws come into play. This Authority directs the applicant to follow the provisions of the circular dated 6/10/2021 which is of prior date than the date of the decision of this Authority in the earlier ARA order dated 21.12.2021. The grounds raised during present hearing by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to as the CGST Act and MGST Act respectively] by M/s. MH Ecolife E-Mobility Pvt. Ltd., the applicant, seeking an advance ruling in respect of the certain question and as per the said order dated 22/12/2021, answers were given to the said questions asked, as mentioned below:- Question 1: Whether services provided by the applicant to NMMT under the Agreement, by way of supplying, operating and maintaining air-conditioned electrically operated buses are taxable and subject to GST? Answer: Answered in the affirmative, as discussed above. Question 2: If the answer to (i) above is yes, what will be appropriate SAC (Services Accounting Code) for classifying the services provided by the applicant and applicable GST rate thereon? Answer: As discussed above, the appropriate SAC (Services Accounting Code) for classifying the services provided by the applicant is Tariff Heading 9966. The rate of GST is 12% (with availment of ITC) or 5% (without availment of ITC), as discussed above. Question 3: Whether Applicant shall be eligible to avail the input tax credit of tax paid on the procurement of input supplies used in supplying services to NMMT under the Agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax regime. 8.3 It is relevant to note in this context that Schedule ii of CGST Act, 2017 declares supply of any goods without transfer of title as supply of service even if right to use is transferred. Transfer of right to use has been declared as a supply of service [Schedule II, Entry 5(f) refers] 8.4 The issue was placed before the 45th GST Council Meeting held on 17.09.2021. As recommended by the GST Council, it is clarified that the expression giving on hire in SI. No. 22 of the Notification No. 12/2017-CT (Rate) includes renting of vehicles. Accordingly, services where the said vehicles are rented or given on hire to State Transport Undertakings or Local Authorities are eligible for the said exemption irrespective of whether such vehicles are run on routes, timings as decided by the State Transport Undertakings or Local Authorities and under effective control of State Transport Undertakings or Local Authorities which determines the rules of operation or plying of vehicles. The hearing in the present case is concluded on 7/12/2021. During the course of hearing, above circular dated 6/10/2021 was not pointed out. It is noticed that decision in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive written submissions (on or before the date fixed for hearing) and attend the hearing on the present Notice on 15/03/2022. The applicant is directed to show cause as to why the decision given in the present case dated 22/12/2021 should not be withdrawn. The link for attending the hearing online shall be shared separately. 2. The hearing, in respect of the impugned notice was conducted on 19/4/2022. The applicant, as well as the Jurisdiction officer filed the detailed submissions in response to said notice. The Authorised representative of the applicant, Shri Niraj Hande, Advocate, Shri Sharad Gupta, Shri Rahul Deep Pandya, DGM, Shri Shatrughna Goswami, DM, were present. Jurisdictional Officer Shri Ganesh Jadhav, Superintendent Divisional III, Commissionerate Belapur was also present. The applicant filed a detailed reply which reads as under: Ref: 1) Notice bearing no. GST/ARA/2021-22/B-19 dated 15th February 2022 ( Notice ) 2) Order no. GST-ARA-60/2020-21/B-116 dated 22nd December 2021 of this Hon'ble Maharashtra Authority of Advance Ruling ( Ruling / Order ) 2) Advance Ruling Application no. 60 dated 23 December 2020 filed by M/s. MH Ecolife E-Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable. The operative portion of the order is reproduced below: 5.2 In the case of transportation of passengers, the recipient of service would be the passenger whereas in the case of renting of any motor vehicle, the recipient would not be the passenger. In the present case, the consideration for supply of service is charged from NMMT and not the passenger. Therefore, in the subject case it is clear that the recipient of service is NMMT. Hence, we have no hesitation in holding that the subject activity, amounts to 'renting of motor vehicle' and shall qualify as a taxable activity under the provisions of the GST Laws. Since the subject activity is taxable, the provisions of Notification No. 12/2017-CT (R) dated 28.05.2017 is not applicable in the subject case. The subject case is clearly covered by Entry Sr. No. 10 of Notification No. 11/2017 - CT (Rate) dated 28.06.2017 as amended in as much as there is a Rental services of transport vehicles with or without operators and the activities of Renting of any motor vehicle/transport vehicle which is designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 98 or section 101 or section 101C, respectively, so as to rectify any error apparent on the face of the record ., if such error is noticed by the Authority or the Appellate Authority or the National Appellate Authority on its own accord, or is brought to its notice by the concerned officer, the jurisdictional officer, the applicant, appellant, the Authority or the Appellate Authority within a period of six months from the date of the order...: SECTION 104. Advance ruling to be void in certain circumstances. - (1) Where the Authority or the Appellate Authority [or the National Appellate Authority] finds that advance ruling pronounced by it under sub-section (4) of section 98 or under sub-section (1) of section 101 [or under section 101C] has been obtained by the applicant or the appellant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void ab initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the applicant or the appellant as if such advance ruling had never been made Our submissions to the allegations set out in the Notice are covered in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words suppression and misrepresentation of facts. Continental Foundation Joint Venture vs. Commissioner of Central Excise [2007 (216) E.L.T. 177 (S. C.)] 10. The expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or collusion and, therefore, has to be construed strictly . Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression . Bharat Hotels Limited Vs. Commissioner, Central Excise (2018 (2) TMI 23) the word suppression in the proviso to Section 11A(1) of the Excise Act has to be read in the context of other words in the proviso, i.e. fraud, collusion, wilful misstatement . As explained in Uniworth (supra), misstatement or suppression of facts does not mean any omission. It must be deliberate. In other words, there must be deliberate suppression of information for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ. Deva Metal Powders Pvt. Ltd. vs. Commissioner, Trade Tax, U.P. (04.12.2007 - SC) : MANU/SCA9166/2007 A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word apparent is that it must be something which appears to be so ex facie and it is incapable of argument or debate. it therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications The above binding precedents of the Hon'ble Supreme Court clearly lay down the principle that the applicability or non-applicability of the Circular to the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause of such other view and may cast civil liability in the form of interest etc. on the Company, especially given that the such ITC either remains unutilized, or paid on services on which no GST should have been paid (and has not been collected from any other person). It needs to be appreciated that that imposition of any such civil liability would amount to penalizing the Company without any fault of its own and exclusively due to complying with the captioned Ruling. Accordingly, the Authority would also be required to give relief from such civil liability, should the Authority seeks to adopt a different view than set out in the captioned ruling. 03. CONTENTION - AS PER THE CONCERNED OFFICER: Officer Submission dated 17.03.2022- MH Ecolife reads under: 3.1 The jurisdictional officer, while reproducing the contents of Circular no. 164/20/2021-GST dtd. 06-10-2021(C/s. 21-33) has submitted that, the decision taken earlier as per order dated 21/12/2021 needs to be changed. The impugned service is exempt from tax and the applicant is not entitled to ITC. 04. HEARING 4.1 The hearing was conducted on 19/4/2022 as per the details mentioned in above paras. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of the provisions in the said Trade Circular. Non consideration of material provisions is a mistake of law. Not pointing out the relevant circular during the course of hearing or in the written submissions filed earlier is also a suppression of a material event. Hence, there was a necessity of application of Sec 102 and 104 in the present case. This could lead to different answers than the answers already given to the questions asked in the present case. it was therefore felt necessary to given a fresh hearing in the present case and accordingly, fresh hearing was conducted on 19/4/2022. In this respect, the applicant as requested to refer to the following provisions of the GST Act. 102. The Authority or the Appellate Authority may amend any order passed by it under section 98 or section 101, so as to rectify any error apparent on the face of the record, if such error is noticed by the Authority or the Appellate Authority on its own accord, or is brought to its notice by the concerned officer, the jurisdictional officer, the applicant or the appellant within a period of six months from the date of the order: Provided that no rectification which has the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case laws relied upon by the applicant, can be distinguished on facts as well as on legal provisions. Further, none of the decisions under the referred case laws have been taken under the impugned provisions of the GST Act on the basis of which the present hearing was conducted. The applicant has failed mainly to prove how the provisions of the impugned Circular are not applicable to the facts of the present case. The applicant has contested the present hearing mainly on the following two grounds as mentioned in its written submission in the form of conclusion by the applicant, which reads as under: There is no suppression or misrepresentation of facts by the Company to render the captioned Ruling as being void ab-initio in terms of Section 104 of the CGST Act. The non-referral of the Circular and its applicability to the facts of the Company cannot be sought to be rectified under Section 102 as the same would require a long drawn process of arguments and submissions. 5.5 Thus there is no denial by the applicant that provisions of said circular are not applicable to the facts of present case. The applicant has nowhere explained that on facts, provisions of said ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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