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TMI Blog2021 (4) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... he cables with all fittings and accessories etc. In the instant case, we are not in a position to take any decision on the issue, since the applicant has failed to provide the documents such as contract/agreement/tender. It is thus concluded that in view of non-submission of the documents such as contract/agreement/tender as mentioned above by the applicant and without going through the conditions/provisions envisaged in the aforementioned documents, it will not be possible for us to take a decision in the matter. - GUJ/GAAR/R/03/2021 - - - Dated:- 20-1-2021 - SANJAY SAXENA AND MOHIT AGRAWAL, MEMBER Present for the applicant : Shri Amal Dave BRIEF FACTS The applicant M/s. Apar Industries ltd. located at Plot No.189/P1, GIDC Road, Tal.Umbergaon, Valsad (Dist.), Gujarat-396171 AND Survey No.82/2P,88,861/1, 862/1, 863/1, Khata No.1932, Manekpur Road, Khatalwada, Valsad-396120. (having correspondence address at 12/13, Jyoti Wire House, 23A, Shah Industrial Estate, Off.Veera Desai Road, Andheri(West), Mumbai) are manufacturers and suppliers of various goods such as Power/Electric cables, House wire cables, Marine/pressure tight cables and non-pressure tight cable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E LT XLPE Cables were manufactured as per the type, size and specifications provided by the Project Authority of Solar Power Generating System and supplied directly to them/their site for use as Parts in the manufacture of Solar Power Generating System; that the Government of India (Ministry of Finance and Department of Revenue, CBIC) had issued a Notification No.1/2017-Integrated Tax (Rate) dated 28.06.2017 with 6 Schedules specified therein with different GST Rate in respect of the Goods supplied. All goods falling in Schedule-I attract 5% rate of IGST [or 2.5% each of CGST SGST] and their said goods i.e. Cables referred above manufactured and to be supplied to Solar Power Projects for use as Parts in their manufacture fall under Sr.No.234 of the Schedule-I to the said Notification and accordingly applicable rate of GST on their above supply will be @ 5%, in total [i.e. 2.5% each of CGST SGST or 5% IGST); that during pre-GST Regime, all goods falling under Any Chapter , when supplied to Solar Power Projects, were fully exempted from payment of Central Excise Duty as per the Notification No.15/2010-C.E., dated 27.02.2010, based on the Certificate for the intended u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The applicant has further submitted that these HT XLPE LT XLPE Cables are manufactured as per the design, specification and standard provided by the Solar Power Project Authority, and are supplied solely predominantly for use as Parts for the manufacture of said Solar Power Generating System; that these cables have no other intended use or multiple-use, other than for use as Parts in the manufacture of Solar Power Generating System ; that for manufacturing these quality cables of the international standard for use in Solar Power Projects, they have been accorded with the permission, certification and approval from the International Authority i.e. TuV to manufacture as per EN-50618:2014 specs which is exclusively for the Solar application products; that a detailed technical specification, standard and various Parameters of the subject cables that needs to be complied with is given in the Technical Write-up which is submitted; that CBIC/Board has already clarified vide Circular No.80/54/2018-GST dated 31.12.2018 at Para 11.2 thereof that the Notification specifically applies only to the goods falling under chapters 84, 85 and 94 of the Tariff; that therefore, this concess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accredited /approved / certified by the International Authority TuV , to manufacture as per EN-50618:2014 specs which is exclusively for the products for Solar Power applications, and said goods has no other intended use and application and hence the benefit of concessional rate of 5% must be given/allowed. 6. The applicant has asked the following question seeking Advance Ruling on the same: Whether the applicability or determination of liability to pay Tax on our said goods at 5% GST rate is legally correct and in order in terms of Schedule-I to the Notification No.01/2017-Integrated Tax(Rate) or not. 7. Further, in pursuance of the personal hearing held on 23.12.2020, the applicant vide their additional submission (submitted to this office on 29.12.2020) have stated that during the course of hearing held on 23.12.2020, they were requested to submit additional documents to show that the PO placed by M/s. Adani for HT XLPE LT XLPE Cables was accepted; that a copy of the tender awarded to M/s. Adani for setting up solar power projects was also asked to be submitted within 3 days; that they have submitted copies of various e-mails exchanged in-between the parties reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same time the same is capable of being separated for repairs and replacement. They have also stated that, therefore, all the Solar Power Project authorities are claiming that these cables, will attract GST @5% in terms of Sr.No.234 of Schedule-I of the Notification No.01/2017-Integrated Tax(Rate) dated 28.06.2017. The applicant has submitted photocopy of amendment to original Purchase Order bearing No.4500293305 dated 25.12.2018 (amended as on 16.02.2019) (involving supply of XLPE Cables worth ₹ 5,98,50,001/-inclusive of GST@5%) received from M/s. Adani Green Energy ltd., Rajasthan confirming the applicability of concessional rate of GST @5% . However, they have not submitted copy of the original Purchase Order dated 25.12.2018. 11. Based on the submissions of the applicant, photocopies of the various documents submitted by them as well as the arguments/discussions made by the representative of the applicant during the course of personal hearing, we find that the main issue to be decided is whether the applicability or determination of liability to pay Tax on their goods namely XLPE Cables that are used as integral parts in the Solar Power Generating System at 5% GST ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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) Solar lantern / solar lamp (g) Ocean waves/tidal waves energy devices/plants 14. On going through the provisions of the above entry, we find that it covers renewable energy devices as well as parts (covered under Chapters-84,85 and 94 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) for their manufacture and the list includes (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) Solar lantern / solar lamp (g) Ocean waves/tidal waves energy devices/plants. As per the submission of the applicant, the XLPE cables manufactured and supplied by them are to be used as parts in the manufacture of Solar Power Generating System. Thus, in order to avail the benefit of said notification entry as above, applicant has to satisfy two conditions namely, that the goods must be covered under Chapter Heading 84, 85 or 94 and seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the batteries is first converted to AC then fed to the equipment. In grid tie system the solar panel is directly connected to inverter and this inverter then feeds the grid with same voltage and frequency power. (iii) Controller : This is not desirable to overcharge and under discharge a lead acid battery. Both overcharging and under discharging can badly damage the battery system. To avoid these both situations a controller is required to attach with the system to maintain flow of current to and fro the batteries. (iv) Battery : The battery is charged by solar electricity and this battery then feeds a load directly or through an inverter. In this way variation of power quality due to variation of sunlight intensity can be avoided in solar power system instead an uninterrupted uniform power supply is maintained. 15.1 The applicant is supplying XLPE cables to be used as parts in the Solar Power Generating System. The XLPE cables are used for connecting the transformer to the grid/substation. 15.2 Further, the applicant has submitted the technical write-up in this regard, in respect of the Solar Power Generating System as well as the role of cables as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting temperature of 120 Deg C. These cables can also be used in cold conditions as low as - 40 Deg C. All Solar projects have to use such cables that are TuV certified to make them bankable with the financing bodies. The EN: 50618 specs is exclusively for the Solar application. These Solar DC cables are printed on its surface mentioning Solar Cables as per EN: 50618 and its size. These cables are exclusively used for Solar application and do not have any other use. Low Voltage DC XLPE Cables The XLPE cables are used on DC side from Combiner box to Inverters. These cables as per IS: 7098 (Part-I) are generally Single core cables with Aluminium or steel strip/wire armouring. The commonly used sizes of these single core cables are 240/300/400 sqmm. These cables are also having an expected life of 25 years. Low Voltage AC XLPE Cables The XLPE cables are used from Inverters to step up Transformer. These cables as per IS: 7098 (Part-I) are generally Single core cables with Aluminium strip/wire armouring. The commonly used sizes of these single core cables are 240/300/400 sqmm. These cables are also having an expected life of 25 years. Medium Voltage (11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No 1/2017-Central Tax (Rates) dated 28th June, 2018. The said entry 234 prescribes 5% rate on the following renewable energy devices parts for their manufacture: (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) Solar lantern / solar lamp (g) Ocean waves/tidal waves energy devices/plant (h) Photo voltaic cells, whether or not assembled in modules or made up into panels. 11.2 The notification specifically applies only the goods falling under chapters 84, 85 and 94 of the Tariff. Therefore, this concession would be available only to such machinery, equipment etc., which fall under Chapter 84, 85 and 94 and used in the initial setting up of renewable energy plants and devices including WTEP. This entry does not cover goods falling under other chapters, say a transport vehicle falling under Chapter 87 that may be used for movement of waste to WTEP. 11.3 Another related doubt raised is as to how a supplier would satisfy himself that goods falling under Chapter 84, 85 and 94, say a turbine or a boile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at works, supply, packing and forwarding, transportation and transit insurance on F.O.R. Site basis for HT cable Package for 200 MW MSEDCL, Rajasthan, NSM Solar Project. We, therefore, find that unless and until we go through the provisions/conditions of the Contract/agreement in the current transaction, it would not be possible to reach a conclusive decision in the matter. Further, we find that although the applicant has submitted printouts of some of the correspondences made by them with the buyer through email, they have not submitted the copy of Contract/agreement alongwith their submission. Although the representative of the applicant was requested to submit the copies of contract/agreement/tender etc. during the course of personal hearing, they have not submitted the same neither during the course of personal hearing, nor thereafter. In view of the above discussions, it can very easily be inferred that the Contract/agreement is an extremely important document and without going through the Contract/agreement signed by the applicant with the buyer, it would be impossible for us to arrive at a conclusive decision in the instant case. The applicant has also not submitted/provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 234 84 or 85 Following renewable energy devices and parts for their manufacture (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) Solar lantern/solar lamp (g) Ocean waves/tidal waves energy devices/plants Explanation : If the goods specified in this entry are supplied, by a supplier, along with supplies of other goods and services, one of which being a taxable service specified in the entry at S. No. 38 of the Table mentioned in the Notification No.8/2017-Integrated Tax (Rate), dated 28th June, 2017 [G.S.R. 683(E)], the value of supply of goods for the purposes of this entry shall be deemed as seventy per cent. of the gross consideration charged for all such supplies, and the remaining thirty per cent. of the gross consideration charged shall be deemed as value of the said taxable service. Simultaneously, Notification No.28/2018-Integrated Tax (Rate), dated 31-12-2018 amended Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar circumstances involving supply of services along with supply of goods(classifiable under Sr.No.234 of Schedule-I of Notification No.01/2017-Integrated Tax(Rate) dated 28.06.2017(as amended from time to time)), out of the gross value of the supply, 70% shall be deemed to be on account of goods on which GST payable would be 5% whereas the remaining value of 30% shall be deemed to be on account of service on which GST leviable shall be 18%. However, in the instant case, we are not in a position to take any decision on the issue, since the applicant has failed to provide the documents such as contract/agreement/tender as mentioned in the foregoing paras. In view of the aforementioned facts, we conclude that in view of non-submission of the documents such as contract/agreement/tender as mentioned above by the applicant and without going through the conditions/provisions envisaged in the aforementioned documents, it will not be possible for us to take a decision in the matter. 18. We have also observed that the applicant has cited a few judgements of Advance Ruling Authorities to support their contention. In this context, we have to emphasise here that decisions of Advance Ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X
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