2019 (5) TMI 1133 - AAAR - GST

Energy Performance Contract - Applicability of entry no. 3 of Notification No 12/2017-Central Tax - services provided by the applicant by way of providing energy saving street lighting services including operation and maintenance of the street lighting installations to Bhubanewsar Municipal Corporation (BMC) - Pure services - HELD THAT - The appellants have not made any supply of goods either under a works contract or under a contract for composite service involving supply of goods. There is no transfer of property or effective control or possession in the goods during the execution of the contract for BMC. Therefore, the appellants have made supply of pure service in terms of FAQ issued by CBIC on Government service and are entitled to claim exemption vide serial no. 3 of notification no. 12/2017-CentraI Tax (Rate) and corresponding notification issued under the provisions of Odisha GST. What is the scope of pure services mentioned in the exemption notification No. 12.2017 - Central Tax (Rate), dated 28-06-2017? - HELD THAT - In this case, the scope of the service involves maintenance work and supply of goods, which falls under the works contract services. The exemption is provided to services involves only supply of services and not for works contract services. On the contract, it is clearly specified that all installed equipments constructed or system installed are transferred to BMC in good condition. Therefore, the activities carried out by the appellant in the instant case will be considered as a supply of goods in terms of the provisions of Schedule II, Para 4-A of CGST Act, 2017 / SGST Act, 2017. The appellant under the grounds of appeal has not put forth any arguments or legal provisions to negate the applicability. Therefore, the contention of the appellant that the transaction doesn t involve any supply of goods is not sustainable. Appeal dismissed.

Summary

Issues Involved:
1. Applicability of Entry No. 3 of Notification No. 12/2017-Central Tax to the services provided by the appellant.
2. Classification of the services provided as "pure services" or "works contract."
3. Transfer of business assets and its implications under GST law.
4. Interpretation and applicability of exemption notifications under GST law.

Detailed Analysis:

1. Applicability of Entry No. 3 of Notification No. 12/2017-Central Tax:
The appellant sought an advance ruling on whether the services provided by them, including operation and maintenance of street lighting installations for Bhubaneswar Municipal Corporation (BMC), fall under Entry No. 3 of Notification No. 12/2017-Central Tax, which exempts "pure services" provided to local authorities. The AAR ruled that the services do not qualify for the exemption as they involve significant use of goods/materials and are not "pure services."

2. Classification of Services as "Pure Services" or "Works Contract":
The appellant argued that their services should be classified as "pure services" since there is no transfer of property in energy-saving equipment during the contract period. They claimed that the risk and ownership of the equipment remain with them, and the services provided are for a single supply of lighting services. However, the AAR found that the contract involves substantial use of goods and is essentially a "works contract" as it includes installation, operation, and maintenance of street lighting systems, which are immovable properties. The AAR concluded that the services provided are not "pure services" but "works contract services," which are excluded from the exemption under Entry No. 3 of the notification.

3. Transfer of Business Assets:
The AAR noted that the contract stipulates the transfer of the entire street lighting infrastructure to BMC at the end of the contract period without any extra consideration. This transfer of business assets is covered under clause (a) of Para 4 of Schedule II of the CGST/OGST Acts, which treats such transfers as a supply of goods. The appellant's contention that there is no supply of goods during the contract period was rejected based on the contractual obligation to hand over the lighting system in working condition to BMC.

4. Interpretation and Applicability of Exemption Notifications:
The appellant relied on various legal precedents and FAQs issued by the CBIC to argue that their services qualify as "pure services." They cited the decision of the High Court of Meghalaya in Tata Consultancy Services Pvt. Ltd. vs. The State of Meghalaya, which dealt with VAT applicability under a similar BOOT contract. However, the AAR and AAAR found these references inapplicable to the GST context. The AAAR upheld the AAR's ruling, emphasizing that the exemption notification should be interpreted strictly, and the burden of proving applicability lies with the assessee. The AAAR also referenced the Supreme Court's decision in Commissioner of Customs (Import), Mumbai vs. Dilip Kumar & Company, which supports strict interpretation of exemption notifications.

Conclusion:
The AAAR rejected the appeal, affirming the AAR's ruling that the services provided by the appellant do not qualify for the exemption under Entry No. 3 of Notification No. 12/2017-Central Tax. The services were classified as "works contract services" involving significant use of goods, and the transfer of business assets to BMC at the end of the contract period was considered a supply of goods. The appellant is required to deposit GST as per the rulings.