2021 (10) TMI 152 - AAAR - GST

Classification of services - rate of GST - works contract by way of construction, erection, commissioning or installation of original works pertaining to railways - first high speed rail line i.e. bullet train in times to come and for this Mumbai-Ahmedabad High Speed Rail Corridor - whether entitled for charging of reduced rate of GST@12% instead of 18%? - HELD THAT - M/s. NHSRCL is a Government Body wherein the Ministry of Railways holds equity shares of 95.72% and Government of Gujarat holds 4.28% of the remaining equity shares. As per Wikipedia, the National High Speed Rail Corporation Limited (NHSRCL) has been incorporated in 2016 with an object to finance, construct, maintain and manage the High Speed Rail Corridor in India. National High Speed Rail Corporation Limited (NHSRCL) has been formed under the Ministry of Railways, Government of India, for the development and implementation of the high speed rail projects in India. It is very much apparent that the objective/work of NHSRCL is related to railways. Further, as per the details of M/s. RITES ltd online, it is found that Rail India Technical and Economical Services limited (RITES ltd.)is a Public Sector Undertaking wherein ownership of the Government of India(72.02% in equity shares). As per Wikipedia, RITES Ltd, is an engineering consultancy company, specializing in the field of transport infrastructure. Established in 1974 by the Government of India, the company's initial charter was to provide consultancy services in rail transport management to operators in India and abroad. RITES has since diversified into planning and consulting services for other infrastructure, including airports, ports, highways and urban planning. On going through the work mentioned at Sr.No.1,2 and 3 (of Phase-I works), it appears that the same pertains to construction of the railway track, pavements alongside it as well as and high mass lighting on the pavement along the track. Similarly, Sr.No.1 and 2 (of Phase-II works) appears to pertain to construction of warehouse as well as construction of Balance Pavement area like area around warehouse and connecting road between pavement near the track and pavement around warehouse. Further, EIMWB mentioned at Sr.No.3 of Phase-II works above, stands for Electronic Inmotion weighment Bridge and pertains to Railways only. Similarly all the other works enlisted in para 18.1. above also appear to pertain to Railways only. The Work Contract allotted to the appellant by M/s.RITES ltd. undoubtedly pertains to Railways only. It can thus be concluded that the Work Contract allotted to the appellant by M/s. RITES ltd. is covered under Clause 3(v)(a) of Notification No.11/2017-Central Tax (Rate) dated 28.06.2017 as amended from time to time as it fulfills all the conditions therein i.e. it is Work Contract involving Original work pertaining to Railways . Thus, the Work Contract of the appellant is covered under Clause3(v)(a) of the Notification No.11/2017-Central Tax(Rate) dated 28.06.2017 as amended from time to time - appeal allowed.

Summary

Issues Involved:

1. Whether the contract is a composite supply of Works Contract.
2. Whether the work is a construction, erection, commissioning, or installation by way of construction, erection, commissioning, or installation of original works.
3. Whether the work pertains to railways.

Issue-wise Detailed Analysis:

1. Composite Supply of Works Contract:

The appellant was awarded a contract for constructing pavement, track work, warehouses, admin buildings, and other miscellaneous works. The GAAR confirmed that the contract is a composite supply of works contract as it involves the transfer of property in goods and is related to immovable property. The contract meets the definition of "Works Contract" under Section 2(119) of the CGST Act, 2017.

2. Construction, Erection, Commissioning, or Installation of Original Works:

The GAAR recognized that the works involved are new and fall under the definition of "original works" as per clause (zs) of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017. The contract involves construction, erection, commissioning, and installation of original works.

3. Pertaining to Railways:

The GAAR initially ruled that the contract did not pertain to railways due to a lack of documentary evidence. However, the appellant argued that the work is part of the Mumbai-Ahmedabad High-Speed Rail Corridor, a project under the National High-Speed Rail Corporation Limited (NHSRCL), owned by the Ministry of Railways. The appellant submitted various documents, including the Memorandum of Association of NHSRCL, letters of acceptance, and correspondence with RITES Ltd., showing that the work pertains to railways.

The appellate authority reviewed the evidence and concluded that the NHSRCL is a government body under the Ministry of Railways, primarily engaged in railway-related projects. The scope of work, including track work, pavements, high mast lighting, admin buildings, electrical installations, and warehouses, all pertain to railways as defined under Section 2(31) of the Railway Act, 1989.

Conclusion:

The appellate authority found that the appellant's contract meets all three conditions required under clause 3(v)(a) of Notification No.11/2017-Central Tax (Rate) dated 28.06.2017. The contract is a composite supply of works contract, involves original works, and pertains to railways. Consequently, the appeal was allowed, and the GAAR's ruling was modified to hold that the work contract is eligible for the reduced GST rate of 12%.