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TMI Blog2019 (3) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... operation does not qualify for being described as attached to the earth under any one of the three clauses extracted above. That is because attachment of the plant to the foundation is not comparable or synonymous to trees and shrubs rooted in earth. The supplies in question cannot be termed as immovable property for the following reasons: (i) The plants/ systems in question are not per se immovable property; (ii) Such plants/systems cannot be said to be attached to the earth within the meaning of that expression as defined in Section 3 of the Transfer of Property Act; (ii) The fixing of the plants/ systems to a platform/foundation is meant only to give stability to the plant/ system and keep its operation vibration free and (iv) The setting up of the plant/ system itself is not intended to be permanent at a given place. Thus the supplies under consideration are out of the ambit of work contract service in as much as the question of immovable property does not arise - the supply of goods along with design, erection, commissioning installation of the same while supply of solar rooftop power plant and solar irrigation water pumping systems shall be treated as composit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) Determination of the liability to pay tax on any goods or services or both (f) Whether the applicant is required to be registered (g) Whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both within the meaning of that term 4. In the present case applicant has sought advance ruling on applicability of GST rate on said supply and whether the same falls under composite supply . Therefore, in terms of said Section 97(2)(e) (g) of Act, the present application is hereby admitted. 5. The Joint Commissioner, SGST, Dehradun vide letter dated 20.12.2018 forwarded the report of Assistant Commissioner, SGST, Khand-1, Dehradun (here-in-after called as said officer) in this regard wherein the said officer has submitted that the service portion of erection, commissioning installation of solar rooftop power plant and solar irrigation water pumping system is less than 10% of whole cost of the said plant/system and since the components/parts of solar rooftop power plant and solar irrigation water pumping system form the principal supply , thus the contract for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id meter. (ii) Solar Irrigation Water Pumping Systems: It is a compact and indigenous system can be set up at agriculture field where grid based electricity is not possible or expensive to establish. The contents of the same are as under: a. SPV modules: The main part of a solar power generating system is the solar photovoltaic modules. Solar Modules contain photovoltaic cells which convert the sun light into electricity and transmitted the produced electricity to inverters through cables and electrical connectors. b. VFD (Variable Frequency Drive) or pump Controllers: This device converts the DC power to AC power and control the frequency of power to run the water pump . c. Submersible pump or Surface pump: Pumps are set up to draw water from ground and bore wells. In case where the ground water level is low, submersible pumps are used and where water levels are adequate, upper surface pumps are installed. d. Pipes Connectors: Pipes Connectors are used to connect pumps and draw water from bore well and thereon connected to tanks for storage and directed to fields. 8. In the present case we are not deciding any wider que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 2 3 4 332 Any Chapter Non-conventional energy devices or system specified in List 8 Nil List-8: 1) Flat plate solar Collector (2) Black continuously plated solar selective coating sheets (in cut length or in coil) and fins and tubes (3) Concentrating and pipe type solar collector (4) Solar cooker (6) Solar air heating system (7) Solar low pressure steam system (8) Solar stills and desalination system (9) Solar pump based on solar thermal and solar photovoltaic conversion (10) Solar power generating system (11) Solar photovoltaic module and panel for water pumping and other applications (12) Solar crop drier and system (13) Wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller (14) Water pumping wind mill, wind aero-generator and battery charger (15) Bio-gas plant and bio-gas engine (16) Agricultural, forestry, agro-industrial, industrial, municipal and urban waste conversion device producing energy (17) Equipment for utilizing ocean waves ener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the denial of benefit of notification by the adjudicating authority is not sustainable. The impugned order is set aside and the appeals are allowed. * BHEL Vs CCE [2008 (223) ELT 0609 (Tri. - Bang.)] = 2007 (10) TMI 165 - CESTAT, BANGALORE 1. The point at issue is whether the 'Solar Inverter Charger for solar lantern' is entitled for the benefit of exemption Notification 5/99-C.E., dated 28-2-99. The contention of the revenue is inverter charger should be classified under Heading No. 80.03 of the C.E. Tariff Act as a component of solar power generating system or solar lantern. The exemption Notification No 5/99 C.E., dated 28-2-99 as amended exempts nor conventional energy systems specified in list 4 of the Notification from payment of duty. Since the exemption notification exempts total system and not parts the system, the lower authority held that the inverter charger for solar lantern is not entitled for the benefit of the said notification. 3. We heard both sides. Learned Advocates contended that solar power generating system is also technically known as inverter charger card. Technical experts who headed the Technical Department of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able goods Rate 1 2 3 4 237 Any Chapter Non-conventional energy devices or system specified in List 9 Nil List-9: (1) Flat plate solar collector (2) Black continuously plated solar selective coating sheets (in cut length or in coil)and fins and tubes (3) Concentrating and pipe type solar collector (4) Solar cooker (5) Solar water heater and system (6) Solar air heating system (7) Solar low pressure steam system (8) Solar stills and desalination system (9) Solar pump based on solar thermal and solar photovoltaic conversion ( 10) Solar power generating system (11) Solar photovoltaic module and panel for water pumping and other applications (12) Solar crop drier and system (13) Wind operated electricity generator, its components and parts thereof (14) Water pumping wind mill, wind aero-generator and battery charger (15) Bio-gas plant and bio-gas engine (16) Agricultural, forestry, agro-industrial, industrial, municipal and urban waste conversion device producing energy (17) Equipment for utilizing ocean wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change in the said notifications. Thus we observe that said notifications are similar in character and are identical to the Notification No. 01/2017-Central Tax (Rate) dated Therefore case laws discussed above have a great impact on the case in hand and Observe that the same are applicable to the instant case. Therefore goods as discussed supra which are used in connection with generation of power from sunlight are covered under the definition of Solar Power Generating System and will be covered under serial no. 234 of Schedule-I of the Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017, the applicable rate of GST on such supply of Solar Power Generating System will attract @ 5% and accordingly as per serial no. 234 of Schedule-1 of the Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017, the applicable rate of GST on such supply will be 5% [2.5% CGST + 2.5% SGST]. 8.6 From the application submitted by applicant we also find that they are also involved in designing, erection, commissioning installation of solar rooftop power plant and solar irrigation water pumping systems. Thus both the goods services are involved in the supply in question. Now the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks Ors = 2010 (4) TMI 15 - SUPREME COURT and Sirpur Paper Mills Ltd vs CCE = 1997 (12) TMI 109 - SUPREME COURT OF INDIA . 8.10 In this context we have gone through the legal provisions of law and the Same is reproduced as under: Section 2(119) Of the Act works contract means a contract for building, construction, fabrication, 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; 8.11 The definition of work contract (supra) is concerned with the immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved and thus question arises whether the said supply would be treated as immovable or not. We find that the very important term immovable property is not defined in GST Law so we have to rely on definition given on other laws. Immovable property is defined in Section 3(26) of the General Clauses Act, 1897 as under: Immovable property shall include land, benefits to arise Out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th. The attachment can be easily detachable from the foundation and is not permanent. ii. Sirpur Paper Ltd v. Collector of Central Excise, Hyderabad (1998) 1 SCC 400 = 1997 (12) TMI 109 - SUPREME COURT OF INDIA : Excise duty on paper making machine - Attached to earth for operational efficiency - If the appellant wanted to sell the paper-making machine it could always remove it from its base and sell it - Held as movable. 8.14 In view of the above we observe that the supplies in question cannot be termed as immovable property for the following reasons: (i) The plants/ systems in question are not per se immovable property. (ii) Such plants/systems cannot be said to be attached to the earth within the meaning of that expression as defined in Section 3 of the Transfer of Property Act. (ii) The fixing of the plants/ systems to a platform/foundation is meant only to give stability to the plant/ system and keep its operation vibration free. (iv) The setting up of the plant/ system itself is not intended to be permanent at a given place. 8.15 Thus the supplies under consideration are out of the ambit of work contract service in as mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. 9954 or 9983 or 9987 Service by way of construction or engineering or installation or other technical services, provided in relation of setting up of following, - (a) Bio-gas plant (b) Solar power based devices (c) Solar power generating system (d) Wind mills, Wind Operated Electricity Generator (WOEG) (e) Waste to energy plants / devices (f) Ocean waves/tidal waves energy devices/plants Explanation :- This entry shall be read in conjunction with serial number 234 of Schedule I of the notification No. 1/2017-Central Tax (Rate), published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) dated 28th June, 2017 vide GSR number 673(E) dated 28th June, 2017. 9 - ; RULING In view of the above discussion, we hold as under: (i) Supply in question would covered under Solar Power Generating System as a whole in terms of serial no. 234 of Schedule-I of the Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017. (ii) Supply in question would be treated as composite supply . (ii) 70% of the gross value ..... X X X X Extracts X X X X X X X X Extracts X X X X
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