TMI Blog2022 (7) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... sions under Indian Contract Act, 1872, and Board's Circular dated 6.8.2013, it can be said that purchase orders, submitted by appellant would amount to a valid contract and hence appellant fulfills the condition prescribed in Board Circular No. 80/54/2018-GST dated 31.12.2018 for availing benefit under entry 234. On perusal of Circular No. 80/54/2018-GST dated 31.12.2018, it is clearly expressed that (i) GST is self assessed which means if a taxpayer is claiming exemption/concession under any notification issued under GST Act. he has to satisfy himself that he fulfills the mandatory conditions for claiming the same, onus to prove that he is eligible for such exemption/concession lies on that taxpayer, and (ii) the words used in above para of circular need to satisfy himself with the requisite document from a buyer such as supply contracts/order provides examples, using word 'such as', of documents required from buyer, for satisfaction of taxpayer that goods arc indeed used in WTEP - it is found that meaning of above para cannot be construed to include only 'supply contracts/order' but it will include all such documents which can satisfy the supplier regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing No. GUJ/GAAR/R/03/2021 dated 20.01.2021. 3. The appellant has submitted that they are manufacturer and supplier of various goods such as Power/EIectric cables, House wire cables, Marine/pressure tight cables and non-pressure tight cables, Solar DC cables, XLPE (HT/LT) cables etc. falling under Chapter Heading 8544 of the Customs Tariff Act and that they received purchase orders from Solar Power Generating Projects such as M/s Adani Green Energy Ltd, Adani's Mundra Solar PV Ltd etc. for supply of Solar HT XLPE LT XLPE Cables for use as parts in the manufacture of Solar Power Generating System. 4. The appellant has raised the following questions for advance ruling in the application for Advance Ruling filed by it. ''Whether the applicability or determination of liability to pay Tax on our said goods at 5% GST rate is legally correct and in order in terms of Schedule of Notification No. 1/2017- Integrated Tax (Rate) or not? 5. The appellant has submitted that Entry at Sr.No. 234 of Schedule-I of Notification No. 01/2017- Integrated Tax (Rate) dated 28.06.2017 provides that goods, falling under Chapter 84, 85 or 94, if used as Parts for the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract/agreement/tender as mentioned above, by the applicant M/s Apar Industries Ltd, Plot No.189/Pl, GIDC Road, Tai: Umbergaon, Valsad, it would not be possible for us to give a decision in the matter for the reasons discussed hereinabove. 7. Aggrieved by the aforesaid advance ruling, the appellant has filed the present appeal. 7.1 The appellant in the ground of appeal has submitted that the GAAR observed that to avail the benefit entry at Sr.No. 234 of Notification No. 01/2017- Integrated Tax (Rate) appellant has to satisfy two conditions, first, the goods must be covered under Chapter Heading 84, 85 or 94 and second, the goods shall satisfy the description 'renewable energy devices parts for their manufacture i.e. Solar Power Generating System; GAAR observed that appellant's product indeed covered under Chapter 85 and, after going through the technical write-up submitted by appellant, form an integral part of solar Power Generating System; GAAR, due to unavailability or non-submission of copies of contract/agreement/tender/technical specification, erred in restraining itself to give its decision. 7.2 The appellant stated that they already submitted the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customer's specifications and also arrange delivery cither at ex-factory gate basis or for destination basis. The appellant had not provided any after sale service viz. no erection, installation, construction etc. in respect of solar power generating system and therefore, the above referred services are inbuilt and naturally bundled with principal supply of goods and not provided beyond the sale of goods and hence cannot be treated separately. 7.5 The appellant submitted that there is no element of 'works contract service' involved or performed by appellant as sub-contractor to the Solar Power Generating System as the works contract service was rendered by project developer after buying goods from appellant and the appellant sold the goods to project developer on outright arms and length sale basis after manufacturing as per design, specification, engineering, packing, prior sale testing at appellant works and then delivery was given at for destination basis including transportation and transit insurance. Therefor services listed in purchase order are inbuilt and naturally bundled with sale of goods in terms of Sale of Goods Act, 1930 and CGST Act, 2017 and have to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods shall satisfy the description 'renewable energy devices parts for their manufacture' i.e. Solar Power Generating System. 10.1 As regards to first condition, after going through the appellant's submission, we agree with the observation of GAAR that XLPE cables arc covered under Chapter Heading 8544 of the Customs Tariff Act, 1975. 10.2 As regards to second condition, we find that the GAAR while discussing, in detail, about Solar Power Generating System at Para 15 of ruling held that XLPE Cables form an integral part of the Solar Power Generating System as without these interconnecting cables, the components like Solar Panels and others cannot generate usable power. Based on the technical write up submitted by appellant before GAAR and before this appellate authority we are in agreement with the findings of the GAAR. Further, there is no departmental appeal against the above findings of GAAR. 11. Further, GAAR observed that to avail the benefit of Entry at Sr.No. 234 of the Notification No. 01/2017-Integrated Tax (Rate) dated 28.06.2017, it is necessary to confirm that XLPE cables are indeed used as parts of Solar Power Generating System. Further in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is evident that a purchase order that contains all the essential ingredients of a valid contract must be treated as one under the Indian Contract Act, 1872. After conjoint reading of above observation of GAAR. provisions under Indian Contract Act, 1872, and above referred Board's Circular dated 6.8.2013, it can be said that purchase orders, submitted by appellant would amount to a valid contract and hence appellant fulfills the condition prescribed in Board Circular No. 80/54/2018-GST dated 31.12.2018 for availing benefit under entry 234. 13. We refer to Para 11.3 of Circular No. 80/54/2018-GST dated 31.12.2018 which states as under: 11.3 Another related doubt raised is as to how would a supplier satisfy himself that goods falling under Chapter 84, 85 and 94, say a turbine or a boiler, required in a WTEP, would be used in the WTEP. In this context it is clarified that GST is to be self-assessed by a taxpayer. Therefore, he need to satisfy himself with the requisite document from a buyer such as supply contracts/order for WTEP from the concerned authorities before supplying goods claiming concession under said entry 234. On perusal of above para of the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods and that there is no element of 'works contract service' involved or performed by appellant as sub-contractor to the Solar Power Generating System. Therefore, amendment made to Sr.234 of Notification No. 01/2017-Integrated Tax (Rate) vide Notification No. 25/2018- Integrated Tax (Rate) dated 31.12.2018 and Notification No. 28/2018-Integrated Tax (Rate) dated 31.12.2018, for deciding value of services and rate of GST thereon, will not be applicable as there is no provision of service supplied by the appellant with respect to Solar Power Generating System. 15. Further we find that the Entry No. 234 appearing under Schedule-I to the Notification No.01/2017-IT (Rate) dated 28.06.2017 which provides applicable rate of GST at 5% on supplies of renewable energy devices parts for their manufacture viz. Solar power generating system, falling under Chapter 84,85 or 94, was omitted vide Notification No. 8/2021-IT (Rate) dated 30.09.2021. The description of goods covered under Entry No.234 now appears at Entry No.201A under Schedule-11 to the Notification No. 01/2017-IT(Rate) dated 28.06.2017, amended vide Notification No. 8/2021-IT (Rate) dated 30.09.2021 w.e.f. 1.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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