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TMI Blog2023 (1) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... thority under Chapter XVII of the Act shall be binding only,- (a). On the applicant who had sought it in respect of any matter referred to in sub-section (2) of Section 97 for advance ruling; (b). On the concerned officer or the jurisdictional officer in respect of the applicant. 3. Under Section 103 (2) of the Act, this advance ruling shall be binding unless the law, facts or circumstances supporting the said advance ruling have changed. 4. Under Section 104(1) of the Act, where the Appellate Authority finds that advance ruling pronounced by it under sub-section (1) of Section 101 has been obtained by 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 appellant as if such advance ruling has never been made. At the outset, we would like to make it clear that the provisions of both the Central Goods and Service Tax Act and the Tamil Nadu Goods and Service Tax Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Para 7 above. The applicable rate was @18% GST as per SI. No3(xii) of Notification 11/2017-CT-Rate dt. 28.06.2017(as amended) read with the corresponding TNGST Notification.; and 2. The question on how the differential tax was to be paid was a procedural aspects of payment and was out of the purview of Section 97(2) and hence was not answered. 4. Aggrieved of the decision of AAR in the order no:10/AAR/2022 dt.22.03.2022, preferred the subject appeal. The grounds of appeal are as follows:- (i) The AAR vide their letter 01.11.2021 addressed to the appellant asked for certain information, as recorded in para 3.3 of the impugned order, which was replied to by the appellant on 08.11.2021 as recorded in para 3.4 of the impugned order. It was further observed from para 4.2 of the impugned order that the AAR had requested the jurisdictional authorities to obtain certain information / documents from KKNPP / NPCIL and furnish the same. The documents sought for were,- (a) A letter / statement from KKNPP regarding financial approval for the planned township and details of such approval by the Central Government for establishing the township; and (b) Copy of the plan of township. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -operation of KKNPP I NPCIL to provide the details and documents; and in the absence of such details / documents, proceeded to hold that the benefit of 12 % GST rate under S.No. 3 (vi) of Notification 11/2017 could not be claimed in this case. (vi) Non co-operation on the part of KKNPP / NPCIL can never be the reason to take any adverse view by the AAR and the ruling should be based on the materials available on record and available in public domain. Section 105 of the CGST Act, 2017 gave ample power to the AAR to obtain any documents and the AAR could have used such powers to obtain the information from NPCIL, if such information was felt to be crucial for deciding the issue. Hence, the decision of the AAR to hold that the appellant was liable to pay GST @18%, in the absence of the required documents from NPCIL, was erroneous and not sustainable in law. (vii) KKNPP, a unit of NPCIL was the largest nuclear power station in India, situated in Kudankulam in the Tirunelveli district, Tamil Nadu. KKNPP had built a large township known as Anuvijay Township for its employees near the village Chettikulam in Tirunelveli district. Appellants were awarded the contract to construct of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction of the residential quarters undertaken by the appellant were in relation of the work entrusted to NCPIL by the Central Government; hence the decision of AAR was not at all sustainable and was liable to be set aside. Further, it was contended that the residential quarters exclusively used by the employees of the KKNPP, a unit of NPCIL was an integral part of the work entrusted to NPCIL of implementing nuclear power projects by the Central Government. Personal Hearing: 5. The Authorised Representative (AR) appeared for the hearing conducted on virtual platform and reiterated the facts and grounds of appeal. The Members drew the attention of the AR to the letter dated 22.01.2021 of NPCIL furnished alongwith their application and stated that the said letter is very generic in nature and did not certify that the subject residential colony constructed by them specifically belongs to NPCIL and for use by their Employees: The members required the AR to furnish a letter/certificate from NPCIL to the effect that the work undertaken by them for which the concessional rate was claimed was for the use of staff/employees of KKNPP and to get clarified whether the said works are in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 3 of the Schedule III of the Central Goods and Services Tax Act, 2017. Explanation.- For the purposes of this item, the term 'business' shall not include any activity or transaction undertaken by the Central Government, a State Government or any local authority in which they are engaged as public authorities.' 6 Provided that where the services are supplied to a Government Entity, they should have been procured by the said entity in relation to a work entrusted to it by the Central Government. State Government, Union territory or local authority, as the case may be The AAR after examining the various limbs of the said entry had concluded that the contract is a works contract service as defined under Section 2(30) of the GST Act 2017; NPCIL being a PSE established under Department of Atomic Energy, (Central Government Department) with 100 percent equity held by the Central Government to implement atomic projects for the generation of electricity as entrusted by the Central Government was a 'Government Entity' as per the definition available under 2(zfa) of Notification No. 12/2017-C.T.(Rate) effective from 13.10.2017; and concluded that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely for use of the employees which is In direct relation to the fulfilling obligations entrusted to Nuclear Power Corporation of India Limited (NPCIL) and as per the objects of NPCIL in its MOA and the said township is not for sale or resale. 8.1 From a joint reading of the MOA of NPCIL and the certificate dt.21.07.2022, it is evident that the works relating to construction of residential quarters are exclusively meant for use of the employees of NPCIL at Kundankulam Project and acquiring such buildings are objectives incidental or ancillary to attainment of the main object of NPCIL, a government entity. 9. In fact,, the AAR had held that in the absence of substantiation with regard to the fulfillment of the condition that the services were procured by NPCIL, a Government Entity, in relation to the work entrusted to them by the Central government, the concessional rate provided was not available to them. The appellant before us, through the MOA and the certification from NPCIL has established that the residential quarters constructed at Anuvijay township were meant exclusively for the employees and that as per the MOA, one of the Objects incidental to attainment of the main obje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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