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2024 (8) TMI 238 - HC - GSTInterpretation of obligations under a concession awarded on Hybrid Annuity Model (HAM) and EPC contracts - Defects pertaining to the value of supplies made by the EPC contractor in comparison to the outward supply values indicated by the petitioner - HELD THAT - Circular No.221/2024 was placed on record. Such circular was issued in exercise of powers conferred under Section 158(1) of the Central Goods and Services Tax Act, 2017 (the CGST Act). The Circular is clarificatory. In the Circular, the CBIC noticed that a HAM contract is a single contract for construction and operation and maintenance. The Circular also draws reference to sub-section (5) of Section 31 of the CGST Act which deals with continuous supply of service. On closely examining the Circular, especially in view of such circular being labelled and characterized as clarificatory, it could have a bearing on the adjudication of this dispute. Consequently, the matters requires re-consideration. The impugned order dated 28.02.2024 is set aside and the matter is remanded for re-consideration. The third respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order by taking into account Circular No.221/2024. Petition disposed off by way of remand.
Issues:
1. Interpretation of obligations under a concession awarded on Hybrid Annuity Model (HAM) and EPC contracts. 2. Liability of the petitioner based on supply values indicated by the EPC contractor. 3. Relevance of Circular No.221/15/2024-GST in the case. 4. Time of supply under Section 31 and other GST statutes. 5. Impact of Circular No.221/2024 issued under the CGST Act on the dispute. Analysis: The judgment by the High Court addressed the interpretation of obligations under a concession awarded on Hybrid Annuity Model (HAM) and EPC contracts. The petitioner argued that a contract awarded on HAM differs from an EPC contract as it includes designing, building, transferring, operation, and maintenance responsibilities. The petitioner contended that continuous supply of services exempts them from liability based on the supply values indicated by the EPC contractor. Reference was made to Circular No.221/15/2024-GST issued by the Central Board of Indirect taxes and Customs (CBIC) for reconsideration in light of the circular. The Government Advocate representing the respondents argued that the time of supply is determined by the provision of services under Section 31 and other GST statutes. He emphasized that when the EPC contractor indicates a higher value of outward supply, it signifies the completion of construction to that extent. Circular No.221/2024 issued under the CGST Act was presented, clarifying that a HAM contract encompasses construction and operation and maintenance as a single contract, in line with the continuous supply of service provision under sub-section (5) of Section 31 of the CGST Act. The Court acknowledged the clarificatory nature of the Circular and its potential impact on the dispute, leading to a decision for re-consideration. Consequently, the High Court set aside the impugned order and remanded the matter for re-consideration. The third respondent was instructed to provide a reasonable opportunity to the petitioner, including a personal hearing, and issue a fresh order considering Circular No.221/2024. The Court directed the issuance of a fresh order within four months from the date of receipt of the judgment, leading to the raising of the bank attachment due to the assessment order being set aside. The case was disposed of with no costs incurred, and related motions were closed accordingly.
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