RECENT ADVANCE RULINGS IN GST (PART-11)

[Dr. Sanjiv Agarwal]

Advance rulings are important in any tax law as it provides a forum for clarification and possible interpretation of statutory provisions. Moreover, it conveys the legislative intention from the revenue’s view point. Provisions of advance ruling are contained in section 95 to 106 of CGST Act, 2017 and State / UT GST enactment. Rules 103 to 107 of also provide for forms, manner, certification etc.

The Authority for Advance Rulings (AAR) have been set up in all the states and we have now over 300 advance rulings on different issues already pronounced by various State Authorities. The appellate mechanism for filing appeals against AAR rulings is also in place and we have about twenty five such appellate orders confirming or modifying the AAR orders. One major issue presently being faced is about multiple authorities (equal to number of States), each pronouncing a ruling of its own even if the matter is covered by some other State AAR’s rulings. There are situations where we may have different rulings on same question(s) by different AARs. GST Council ought to decide on having a Centralized Authority as was there in erstwhile tax regime.

The summary of few more recent advance rulings pronounced by State Advance Ruling Authorities are discussed hereunder but these needs to be read in the background of the question involved:

Advance ruling on exemption from GST for supplies to local authority

The assessee was a local authority under control of Government of Uttarakhand, Dehradun registered under GST. It made application before the Authority for Advance Ruling seeking clarification on the question that whether the services or material procured by ITDA from the Indian Institute of Technology (IITs) which is also a Government/Government Authority, are exempt from GST.

As per the submissions of assessee, the assessee was covered under local authority which is receiving services from IIT, Mumbai which falls under the definition of Government in terms of Section 2(53) of the Central Goods and Services Tax Act, 2017 wherein “Government” means the Central Government.

The Authority for Advance Ruling ruled that the Serial No. B of Part 3 of GST Tariff-Services [Chapter 99] provides the list of nil rated/fully exempted services, on going through the said list, we find that Government/Authority providing services to other Government/Authority is exempted from GST and in view of the above, the services received by the applicant from IIT, Mumbai is exempted from GST. [In Re: IT Development Agency (ITDA)  (2018) 6 TMI 1126; ].

Advance Ruling on composite / mixed supply of goods or services

The applicant was engaged in business of fabrication of bus bodies/supply of bus bodies mounting/fitting on chassis supplied by various dealers/customers. The bus bodies were constructed and fitted under a written contract as per the specification provided. The applicant supplied bus bodies along with fitting and fabrication services. In the opinion of the applicant, the transaction was a job work and not a contract of sale of goods.

The DETC was of view that the applicant was supplying bus bodies along with fitting and fabrication services. Major part of process undertaken by the applicant was supply of bus bodies and fabrication/fitting of bus bodies was an associated work along with this supply. Therefore, the supply of bus body might be covered under HSN code 8707.

In the instant case, it was only the chassis which is supplied by the customers of the applicant and in fact no treatment or process is undertaken by the applicant on the chassis itself, except fitment/mounting of bus body on the same. At the same time, bus body building involved use of raw materials/inputs etc., for manufacture/fabrication of bus body and the cost of these inputs, etc., do form the part of value which is being charged by the applicant from its customers.

Thus, it emerged that the customer is providing only the chassis. All inputs/materials required for fabrication of bus body, had to be used by the applicant from its own account. Under such situation it is the bus body which is being fabricated and also being mounted on the chassis provided by the customer. Therefore, it is not merely job-work. Rather it is supply of bus body and an activity of fitting/mounting of bus body on chassis is an ancillary activity to the principal activity of supply of bus-body. Hence, in terms of the clarification issued by the CBEC vide Circular No. 34/8/2018-GST, dated 3-3-2018, the impugned activity is a composite supply, with principal supply being supply of bus body.

The Authority for Advance Ruling ruled that the activity of fabrication and fitting and mounting of bus bodies on the chassis supplied by the other party is a composite supply with supply of goods, i.e., bus bodies, being principal supply and same is covered under HSN Code 8707. [In Paras Motor Industries  (2018) 7 TMI 1422; ].

Advance ruling on taxability of job works

The assessee was engaged in the business of manufacture and supply of industrial gases, including Oxygen, Nitrogen, Argon etc. The applicant enter into job work with M/s. Essar which requires certain quantities of Oxygen, Nitrogen and Argon on a continuous and dedicated basis, to manufacture steel at their Steel Plant, in terms of which assessee act as a job worker.

M/s Essar provided necessary goods such as electricity, industrial quality water to applicant on a free-of-cost basis, activity of manufacturing industrial gases undertaken by assessee. The assessee made application before the Authority of Advance Ruling to seek clarification on whether the activity undertaken by the applicant would amount to 'job work' as defined under section 2(68) of the Central Goods and Services Tax Act, 2017.

The definition of 'job work' under Section 2(68) under the CGST Act, 2017 has been referred and it is submitted that the job work means undertaking any treatment or process by a person on goods belonging to another registered taxable person; that the person who is treating or processing the goods belonging to other person is called 'job worker' and the person to whom the goods belong is called 'principal'. Further, the computation of Job Work Charges has been described at clause 6 of the agreement entered into between the assesee and M/s. Essar.

The job work charges agreed by the assessee and M/s. Essar is the sole consideration payable by M/s. Essar to the applicant for the agreed activity to be carried out by the applicant. Thus, the Authority for Advance Ruling ruled that the activity undertaken by the assessee falls under the ‘Job Work’ as defined under Section 2(68) of the Central Goods and Services Tax Act, 2017 and the Gujarat Goods and Services Tax Act, 2017. [In Re: Inox Air Products (P.) Ltd.  2018 (6) TMI 518 - AUTHORITY FOR ADVANCE RULINGS, GUJARAT ; ].

Advance ruling on supply of food articles and rate of tax

The Authority for Advance Ruling ruled that manufacturing of food articles and its supply only from take away centre, without any sitting facility is a “supply of services” and under Composition Scheme it is liable to 5% GST (2.5% CGST + 2.5% SGST). [In Re: Ananya Goyal  (2018) 7 TMI 1331 (AAR, Uttar Pradesh)]

 (Some more to follow …..)