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TMI Blog2020 (9) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... nel, canal, road and in these contracts if the earthwork constitutes more than 75% then it qualifies for the above entry. If the intention of the Legislature had been to cover only pure contract of earthworks in it then a qualifying condition of more than 75% by value wouldn't have been provided. We therefore find the reasoning of the AAR untenable. The Services provided by the appellant in the impugned matter qualifies for inclusion under entry 3(vii) of the Notification 12/2017 dt 28.6.2017.(as amended by Notification 31/2017 - dt 13.10.2017). - MAH/AAAR/SS-R1/21/2019-20 - - - Dated:- 20-1-2020 - SMT. SUNGITA SHARMA, AND SHRI. RAJIV JALOTA, MEMBER PROCEEDINGS (Under Section 101 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017) At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the MGST Act. The present appeal has been filed under Section 100 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Jurisdictional Officer wherein, the Appellants filed the Written Submissions. 5. On 23rd August 2019, ignoring the submissions, written as well as oral, made by the Appellants, AAR passed an Order No. GST-ARA-08/2019-20/B-100 = 2019 (9) TMI 987 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA (hereinafter referred to as the impugned Order ) and rejected the Application filed by the Appellants seeking Advance Ruling. 6. Being aggrieved and dissatisfied by the aforementioned impugned Order dated 23 rd August 2019, the Appellants are filing the instant Appeal before this Hon'ble Appellate Authority on the grounds mentioned here under which are to be taken independently and without prejudice to one another. GROUNDS OF APPEAL 7. The AAR erred on both laws as well on facts while passing the impugned Order. 8. AAR hopelessly erred in answering / deciding Question No. 1, in negative, without recording any of the submissions of the Appellants and without giving any findings whatsoever in support of its Decision. It is settled law that any Decision of an Authority without assigning any reasons and / or finding is in gross violation of Principles of Natural justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion by AAR is again in gross disregard to a finding entered by it earlier while referring to meaning of earthwork as per Webster Dictionary that 2. Earthwork (noun) - the operations connected with excavations and embankments of Earth in preparing foundations of buildings in constructing canals, railroads etc. 16. AAR ought to have appreciated that the Collins Dictionary defines Earth Work as excavation of earth as in engineering construction; a fortification made of earth. The Wikipedia defines Earth Work as Earth work are engineering works through the processing of parts of earth surface involving quantities of soil or unformed rocks. 17. It may be pertinent to note that in existence of identical facts and context, AAR, Jharkhand in ( In Re: P. K. Aqarwala (2019 (20) GSTL 605 (AAR))) = 2019 (1) TMI 1369 - AUTHORITY FOR ADVANCE RULING, JHARKHAND has held excavation work to be Earthwork within the scope of S. No. 3 of Notification No. 39/2017-Integrated Tax (Rate) dated 13th October 2017 and hence eligible to 5% GST Rate. 18. AAR ought to have appreciated that the term earthwork has to be understood and applied in the way it is understood by the persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Twelfth Schedule of Article 243W of the Constitution which covers Water supply for domestic, industrial and commercial purposes would cover the activities carried out by the Appellants. 23. In view of the above admitted position, benefit of exemption under Sr. No. 3A of the Notification No. 12/2017-Central Tax (Rate) dated 28th June 2017, as amended by Notification No. 2/2018-Central Tax (Rate) dated 25thJanuary 2018, w.e.f. 25th January 2018 must be extended to the Appellants. 24. It may please be appreciated that the issue of eligibility to exemption under Serial No. 3A of the Notification No. 2/2018-Central Tax (rate) has been decided is assessee's favour in identical set of facts IN RE : Arihant Dredging Developers Pvt. Ltd. (2019 (25) GSTL 582 (AAR-GST)) = 2019 (6) TMI 550 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL . BENEFIT OF EXEMPTION UNDER NOTIFICATION NO. 11/2017-CT (Rate) 25. The AAR has answered Question No. 2 in the negative and thereby denying the benefit of concessional rate of GST under Entry No. 3 (vii) of the Table to Notification No. 11/2017-Central Tax (Rate) dated 28th June 2017 as amended by Notification No. 31/2017-Central Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ING, JHARKHAND by holding that the assessee is entitled for benefit of concessional rate of tax under Notification No. 39/2017-Integrated Tax (Rate) dated 13 th October 2017as follow: 12. Now the question which remains is whether the benefit of the Notification No. 39/2017 will be available in the present case? For this the nature of work needs to be examined. 12.1 The term Earth Work has not been defined under any GST provisions. The Webster Dictionary defines Earth Work as an embankment or construction made of earth specially one used as a field fortification. The Collins Dictionary defines Earth Work as excavation of earth as in engineering construction ; a fortification made of earth. The Wikipedia defines Earth Work as Earth work are engineering works through the processing of parts of earth surface involving quantities of soil or unformed rocks. After going through different definitions of earth work we find that Bulk earthworks include the removal, moving or adding of large quantities of soil or rock from a particular area to another. They are done in order to make an area of suitable height and level for a specific purpose. 12.2 It is evident that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urangabad allotted above mentioned work to the applicant. It is submitted that the Work Order consists of Earth Work such as Excavation for Tunnel, Removing of Excavated Stuff, Providing Steel Support, Rock Bolting, Reinforcement, Fixing of Chain Link, Cement Concreting etc. wherein Earth Work is more than 75% of total work, and that since the work i.e. earth work constitute more than 75% of the total work in term of value, they are covered by entry no.3 of Notification 11/2017 dated 28.06.2017 as amended by Notification no, 31/2017 - Central Tax (Rate) dated 13.10.2017 and effective from the said date where GST is payable 5%(CGST 2.5% and SGST 2.5%). 35. The entry dealt with by the AAR is as follows:- Sl.No. Chapter, Section or Heading Description of Service Rate (per cent.) Condition (1) (2) (3) (4) (5) 1. Chapter 99 All Services 2. Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant are dealt with properly and with reasons. However, in the present case we find that the AAR has bypassed the initial contention raised by the appellant and have dealt with only the contention regarding the coverage under earthwork'. As the AAR has failed to deal with the question, we proceed to decide the coverage of the transaction under entry 3A of Notification 12/2017. Services provided in this entry have to made to certain entities and it has to be seen whether the Godavari Marathwada Irrigation Development Corporation is covered by the category of Central Government, State Government or Union territory or local authority or a Governmental authority or a Government Entity.' Before examining the applicability of the entry, it has to be kept in mind that this entry 3A was inserted through Notification 2/2018 dt 25.1.2018. Therefore, even if we conclude that the entry is applicable, it would be applicable only for period after 25.1.2018 as the insertion is not retrospective. 38. The appellant have argued that the Godavari Marathwada Irrigation Development Corporation is a 'Government Entity'. The term Government Entity is defined in the Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l there is also the works of fabricating/erecting steel supports/lighting etc. It is also submitted by the appellant that the earthwork constitutes more than 92% of the works and therefore apparently, the appellant satisfies both the conditions - the work is a composite work and the goods component is less than 92% of the works. As for fulfilling the condition regarding whether the function is that which is entrusted to Panchayat under 243G, we find that as per the Central Water Commission guidelines, a Major Project is a project having CCA (Culturable Command Area) more than 10,000 hectares and the present project= Nira Bhima tunnel is a basic component of the Krishna Marathwada project whose CCA is 33945 hectares. Therefore, the present project being a part of a Major Project and not a Minor project does not fulfill the condition of being the type of work entrusted to a Panchayat. 40. We will now deal with the other contention of the appellant which concerns whether the work to be done by the appellant is covered by the description -'Composite supply of works contract as defined in clause 119 of section 2 of the CGST Act involving predominantly earthwork (that is, constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wiktionary: I. earthwork (Noun) Any structure made from earth: especially an embankment or rampart used as a fortification Webster Dictionary: 1. earthwork (noun) any construction, whether a temporary breastwork or permanent fortification, for attack or defence, the material of which is chiefly earth 2. Earthwork (noun) the operation connected with excavations and embankments of earth in preparing foundations of buildings, in constructing canals, railroads, etc 3. Earthwork (noun) an embankment or construction made of earth As per the Guide to the Training of Supervisors - Trainees' Manual/Part 1 (1LO, 1981, 269) Earthwork involves the loosening, removal and handling of earth quantities in the construction process. Earthworks are carried out to provide a level terrace or bench'', with an even, longitudinal slope, on which the drainage and camber can be built. 41. As per the above definitions, it is clear that Earthwork includes both excavation and fortification . As per Schedule B of the tender which lays down the specifications of the work, the total contract is for ₹ 4,38,36,37,599 in w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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