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TMI Blog2024 (10) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, this advance ruling pronounced by the Appellate Authority under Chapter XVII of the Act shall be binding only: - (a) on the Appellant who had sought it in respect or 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 Appellant. 3. In terms of 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. In terms of 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 the Act or the rules made there-under shall apply to the Appellant as if such advance ruling has never been made. Order under Section 101 of Central Goods and Services Tax Act, 2017 / Haryana Goods and Services Tax Act, 2017 1. The present appeal has been filed by the Commissioner, CGST, Rohtak (hereinafter referred to as 'th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r serial No. 3, heading 9954 of the Notification No. 11/2017-Central Tax (Rate), dated 28.06.2017 under the CGST Act, 2017 and as per Notification No. 31/2017-Central Tax (Rate), dated 13.10.2017 under the CGST Act, 2017 and the corresponding State Tax notification under HGST Act, 2017, the work carried by the applicant is a composite supply of work contract involving pre dominantly earth work provided to a Government Entity and thus attract 5% GST (2.5% CGST +2.5% HGST). Thus, the Serial No. 3 of Notification No. 31/2017-Central Tax (Rate), dated 13.10.2017 under the CGST Act, 2017 is applicable to the applicant." 1.6 The aforesaid ruling of the AAR is based on its findings recorded in para10, 20 and 21 of the Advance Ruling in so far as the nature of work is concerned. 1.7 Being aggrieved by the advance ruling of the AAR, the Appellant filed the present appeal under Section 100 of the CGST Act, 2017 for consideration by the Ld. Appellate Authority for Advance Ruling. 2. QUESTION(S) ON WHICH ADVANCE RULING WAS REQUIRED: Whether the Serial No. 3 of Notification No. 31/2017-Central Tax (Rate) dated 13th October, 2017 issued under the GST Act, being Composite supply of work contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract;' 5.1.3 As can be observed from a plain reading of the aforesaid definition of 'works contract', it applies to construction of structures, fabrication of goods, completion, erection, commissioning and installation of goods like plant and machinery and related activities such as improvement, modification, repair, maintenance, renovation, alteration of the existing structures or plant and machinery. As against this, as can be observed from the "Scope of Work' given in PART-III of the Contract dated 27.07.2017 reproduced in Brief Facts of the Case, M/s KBPL are engaged in supply of mining machinery and manpower to HSIIDC for mining operation at HSIIDC's mine site at village Khanak District-Bhiwani. On their part, there is nothing as such which can be construed as construction service, except construction and maintenance of approach road/ramp/benches for safe movement of transport v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involving predominantly earth work, i.e. more than 75% of the work involves earth work- 5.3.1 It is submitted that concessional rate of tax on construction services under Sl. No. 3(vii) of Notification No. 11/2017-CT(R), dated 28.06.2017 as amended by Notification. No. 31/2017-CT (R) dated 13.10.2017 is available if Composite supply of works contract involves predominantly earth work (that is constructing more than 75 per cent, of the value of the works contract). The said criteria is not met in the given case of M/s. KBPL in as much as, as submitted above, they are the suppliers of machinery and equipment and are in no way involved in doing any earth work at the mining site, like leveling of uneven surface of earth, removal of earth, making embankments by use of earth or digging of earth. The mining site at village Khanak is a barren hillock which is blasted by HSIIDC to get stones/boulders. There is no reshuffling of sand/soil before such blasting as the hillock is not covered by sand/soil. In any case, blasting of hill by no stretch of reasoning be construed as earth work. Hence, finding recorded by the AAR that the value of earth work constitutes more than 75 percent of the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly earth work i.e. constituting more than 75% of the value of work in contract provided to Central Government, State Government, Union territory, local authority, a Government authority or a Government Entity. GST will be applicable at the rate of 5%. 5.4.2 Since the facts of the case of M/s KBPL are different, their reliance on the advance ruling of the Jharkhand AAR is wholly out of place. 5.5 The respondent has suppressed the material fact that the question raised in their application for advance ruling is not pending decision with the CGST authorities. 5.5.1 It is submitted that as per first proviso to Section 98 (2) of the CGST Act, 2017 the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceeding in the case of an applicant under any of the provisions of this Act. 5.5.2 It is further submitted that M/s KBPL filed application for advance ruling on 17.01.2020 whereas on the very same issue (whether M/s KBPL are eligible for concessional rate of tax under sl. No. 3 of Notification No. 11/2017-CT (R), dated 28.06.2017 as amended by Notification No. 31/2017-CT(R) dated 13.10.2017), proceedings were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GST Commissionerate Rohtak (Appellant) preferred present appeal against the order dated 28.08.2020 of the Advance Ruling Authority. 7.4 It was observed that the Appellant vide letter dated 13.01.2021 informed the Members of the Authority of Advance Ruling that M/s. KBPL has mis-stated the facts in their application filed before the Authority of Advance Ruling as they tick marked against S. No. 17 (at point 'a') that the question raised in the application was not already pending in any proceedings in their case under only of the provisions of the Act, WHEREAS proceedings on the same issue had already been commenced by the Gurugram Zonal Unit of the DGGI on 06.03.2019 which later culminated into Show Cause Notice dated 09.10.2020. Thus 'KBPL' has suppressed the material facts from the Authority of Advance Ruling. 7.5 As per proviso to Section 98 (2) of the CGST Act, 2017, 'the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act.' 7.6 Further, as per Section 104 of the Act ibid, 'where the Authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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