9911796707
TMI Blog2022 (12) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... solar power projects and imposed Goods and Service Tax at 5% (2.5% CGST and 2.5% SGST) on solar equipment. However, the services relating to setting up of solar power projects are charged GST at 18% (9% CGST and 9% SGST). 4) The Petitioner herein, used to enter into contracts with prospective buyers of solar power plants for supply and installation of equipment under turnkey basis and paid GST at 5% on supply value of equipment and 18% on the erection and installation of the said equipment. 5) It is submitted that, the import duty/GST on the inputs procured by the Petitioner i.e. on solar modules and steel was charged at 18% as against the GST rate of 5% on the finished goods cleared by the Petitioner. Due to this inverted duty structure, the Petitioner accumulated Input Tax Credit. To have cash flow, the Petitioner filed a refund application for accumulated ITC, citing inverted duty structure, and claimed refund of Rs.8,65,63,538/- for period from January 2018 to March 2018. However, the said claim was rejected by the competent authority, aggrieved by which, Petitioner filed an appeal. 6) While things stood thus, the Assistant Commissioner of State Tax issued notice dated 17.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice, as the impugned order communicated is without any preamble intimating the method and procedure. 12) The finding of the Appellate Authority that the supplies effected by the Appellant are not composite supplies, but works contract services which are immovable in nature, is incorrect. Placing reliance on "Explanation in Sl.No. 234 of Notification No. 01/2017-CT(Rate) dated 28-6-2017 and Sl. No.38 of Notification No.11/2017-CT(Rate)", the Petitioner contends that the turnkey project of solar power plant is not treated as immovable property, as the value of supply of goods and services is differentiated through deeming provision. 13) The learned Counsel for the Petitioner relies upon the decisions of Hon'ble Apex Court in Sirpur Paper Mills Limited V. The Collector of Central Excise (1998) 1 Supreme Court Cases 400; Commissioner of Central Excise, Ahmedabad V.Solid and Correct Engineering Works (2010) 5 Supreme Court Cases 122; Sri Velayuthaswamy Spinning Mills (P) Ltd V. The Inspector General of Registration and Ors. MANU/TN/0164/2013: 2013(2) CTC 551; Vodafone Mobile Services Limited V. Commissioner of Service Tax, Delhi (2018) 100 Taxmann.com 245 (Delhi); and I.G.E. (Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the completion of particular work and on completion of work, they will be shifted to another site for another work. Whereas in the present work, the plant is established such a way that same has to be worked without any shift for a period of 25 years. 19) The learned Government Pleader for Commercial Taxes placed reliance on a ruling given by the Andhra Pradesh State Authorities for 'Advance Ruling' in the case of M/s. McNally Bharat Engineering Company Limited, Visakhapatnam AAR.No. 21/AP/GST/209, Dt. 27.05.2019, wherein it was held that, Solar PV Power Project can be treated as Composite Supply, as defined at Section 2 of CGST Act, 2017 and APGST Act, 2017, and it is treated as 'supply of service' in terms of Serial No.6, Schedule II of CGST Act, 2017 and APGST Act, 2017. The supply cannot be classified under Sl. No. 234 of Schedule I of the Notification No.1 of 2017 and the rate of 5% is not applicable, as it is classified under Heading 9954, Entry No. (ii) of S. No. 3 of the table of Notification No. 11/2017, dated 28.06.2017, as amended from time-to-time and in view of corresponding Notification under APGST Act, 2017, the applicable rate of tax is 18%. 20) An Additional Affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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.11/2017-Central Tax (Rate), dated: 28.06.2017 (G.S.R.690(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. In view of the above the turnovers reported by the appellant for the earlier tax periods from November 2017 to September, 2018 are liable to levy GST at 18% only as the above amendment came into force with effect from 01.01.2019. The amendment has no retrospective effect." 23) However, a perusal of Circular No.163/19/2021-GST dated 06.10.2021 issued by the Department of Revenue, Ministry of Finance, Government of India, which is now placed on record, would show that GST Council has given clarity on specified Renewable Energy Projects that GST can be paid in terms of 70:30 ratio, for the goods and services, for the period 1st July, 2017 to 31st December, 2018, in the same manner prescribed for the period on or after ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
