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TMI Blog2023 (1) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... ory in their own capacity would form part of the respective Governments whereas corporations per se cannot be generalized as being Central / State Government, and they can be treated as other entities viz. Governmental authority, Government Entity etc. as defined in the statute, subject to fulfillment of conditions as mentioned in the definitions / statute. Service recipient - If an organization has awarded their company a contract but the said organization is entrusted by a Ministry/ Department of Government to float the tender and award the work to the eligible Contractor, then who will be deemed to be the services recipient, Government or the organization? - HELD THAT:- The definition under Section-2(93) of the CGST Act, 2017 stipulates regarding the service recipient viz. recipient of the supply of goods or services is someone who is liable for payment of consideration for the supply of goods or services. If no consideration is payable, the person to whom the goods are delivered or made available, or uses the goods or services shall qualify as the recipient. Classification of the Agencies listed out being Corporation or Government Organizations into Central Government, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 24/2017 states that specified Services provided to the Central Government, State Government, Union Territory or a local authority will be taxable at the rate of 12% (6% CGST 6% SGST) and that another issue arises here is that if an organization has awarded their company a contract but the said organization is entrusted by a Ministry/ Department of Government to float the tender and award the work to the eligible Contractor, then who will be deemed to be the services recipient, Government or the organization? For Example: Ministry of AYUSH has instructed NBCC (India) Limited to construct an Ayurvedic College in Goa, the applicant was awarded the Tender by NBCC (India) Limited. In this Case who will be the Service recipient i.e., Ministry of AYUSH or NBCC (India) Limited and what rate of GST be applicable to us (Service Provider to NBCC). iii. Further in this regard it was their request to specify the Classification of the following listed out agencies as to whether these are Corporation or Government Organizations into Central Government, State Government Union Territory, local authority, Government Authority or a Government Entity. a. NBCC (India) Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. CSTPS/CHN/CMU/Qtr. Renovation/01665 dated 01.02.2019 and F. No.CSTPS/CHN/CMU/Qtr. Renovation/01667 dated 01.02.2019 (Herein after referred to as Project F) 2.2.7 Design and construction of 300 bedded hospital (expandable to 500 bedded) at ESIC, Nandanagar, Indore awarded by Central Public Works Department, Indore vide Letter No. 23 (8)/ का. इ. प. म.-I/सी.पी.डब्ल्यू.डी/ 2021-22/793 dated 14.06.2021 (Herein after referred to as Project G). That, Copies of Work Order/ LOAs have been attached for reference. 2.3 The government issued Notification No. 11/2017 Central Tax (Rate), on 28 th June 2017 wherein Heading 9954 (Construction services) was taxed (4' 9% CGST and 9% SGST. 2.4 Subsequently, the aforementioned Notification was amended through the following Notifications: 2.4.1 Notification No. 20/2017 Central Tax (Rate), dated 22 nd Aug 2017 2.4.2 Notification No. 24/2017 Central Tax (Rate), dated 21 st September,2017. 2.4.3 Notification No. 31/2017 Central Tax (Rate), dated 13 th October, 2017. 2.4.4 Notification No. 01/2018 Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ownership of the Government of India or the respective state government. For Instance: a. NBCC (India) Limited - A Government of India Enterprise (as per the official website of the corporation nbccindia.com/) b. Engineering Projects India Limited - A Government of India Enterprise (as per the official website of the corporation https://epi.gov.in/content/) c. Central Public Works Department -works under Ministry of Urban Development now MoHUA (Ministry of Housing and Urban Affairs) and it is headed by the Director General (DG) who is also the Principal Technical Advisor to the Government of India. (as per the official website of CPWD https://cpwd.gov.in/) d. Maharashtra State Power Generation Company Limited - working under the Industry, Energy and Labour Dept of Govt of Maharashtra e. Employee State Insurance Corporation (ESIC) - works under Ministry of Labour and Employment, Government of India (as per the official website of ESIC httos://www.esic.nic.in/) f. Indian Institute of Management - Parent Institution - Ministry of Education, Government of India g. Rajasthan Cricket Association - governed under the provisions of Rajasthan Sports A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Sep. 2017 Point VI(b) 6% CGST 6% SGST 3.6 Before issuance of Notification No. 15/2021, rate of GST applicable to the above projects were 12%. But with the applicability of the said notification, the classification of the above-mentioned tender issuing authorities into Central Government, State Government, Union Territory, and local authority, Government Authority or a Government Entity has created ambiguity regarding ascertaining GST rate. 3.7 that, their point of view on the aforementioned issues is that Corporation and Departments working under various ministries of Central Government, State Governments and UTs will form part of Central Government/ State Government/ Union territory or Local Authority as Central Government has not been defined under the Act. 4. Personal Hearing: - Keeping with the established principles of natural justice, personal hearing in the matter was extended to the applicant in person, as requested by them and accordingly, Shri Vikas Agrawal, advocate; Shri Prakash Chand Agrawal C.A. and Shri Satish Kumar Sarawgi, C.F.O. legal representatives of the Applicant appeared before us for hearing on 09.03.2022 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal officer in respect of the applicant. Thus, in view of the above section 103 of CGST Act, 2017, the ruling so sought by the Applicant would be binding only on the Applicant and on the concerned officer or the jurisdictional officer as stipulated above. 7. Before getting in to the issues involved, for a better understanding of the subject issue, we would first like to go through the relevant text of the issue in hand, as appearing at S.no. 3 (iii)(b) of Notification no. 11/2017 Central Tax (Rate) dated 28.6.2017 [as amended vide Notification 20/2017 Central Tax (Rate) dated 22.8.2017, Notification no. 31/2017-Central Tax (Rate) dated 13.10.2017 w.e.f 13.10.2017 and Notification no. 22/2021-Central Tax (Rate) dated 31.12.2021 w.e.f 1.1.2022] and S.no. 3 (vi)(b) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 [as amended by Notification no. 46/2017-Central Tax (Rate), dated 14.11.2017, Notification No. 3/2019-Central Tax (Rate) dated 29.3.2019, Notification no. 22/2021-Central Tax (Rate) dated 31.12.2021 w.e.f 1.1.2022 and Notification no. 17/2018-Central Tax (Rate), dated 26.7.2018]. In the instant case the eligibility or otherwise of the benefit of said No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion territory or a local authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of, - (a) .. (b) canal, dam or other irrigation works; (c) .. (iv) .. (v) .. (va) .. 6 - (vi) Composite supply of works contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017, other than that covered by items (i), (ia), (ib), (ic), (id), (le) and (if) above, provided to the Central Government, State Government, Union territory or a local authority by ways of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of - (a) .. (b) a structure meant predominantly of use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment; or (c) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in paragraph 3 of the Schedule III of the Central Goods and Services Tax Act, 2017. [ Expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution; (v) As per clause(zf) of paragraph-2 of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017, governmental authority has the same meaning as assigned to it in the explanation to clause (16) of section 2 of the Integrated Goods and Services Act, 2017 (13 of 2017). Clause (16) of section 2 of the Integrated Goods and Services Act, 2017 (13 of 2017) reads as under: Explanation .-For the purposes of this clause, the expression governmental authority means an authority or a board or any other body,- (i) set up by an Act of Parliament or a State Legislature; or (ii) established by any Government, with ninety per cent. or more participation by way of equity or control, to carry out any function entrusted to a municipality under article 243W of the Constitution; Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 was further amended by Notification No.32/2017-Central Tax (Rate) dated 13.10.2017 wherein it is mentioned as under: in paragraph 2, for clause (zf), the following shall be substituted, namely: - (zf) Governmental Authority means an authority or a board or any other body, - (i) set up by an Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered or made available, or to whom possession or use of the goods is given or made available; and (c) where no consideration is payable for the supply of a service, the person to whom the service is rendered, and any reference to a person to whom a supply is made shall be construed as a reference to the recipient of the supply and shall include an agent acting as such on behalf of the recipient in relation to the goods or services or both supplied; Thus, the above definition stipulates regarding the service recipient viz. recipient of the supply of goods or services is someone who is liable for payment of consideration for the supply of goods or services. If no consideration is payable, the person to whom the goods are delivered or made available, or uses the goods or services shall qualify as the recipient. 10. Coming to the third aspect raised by the applicant seeking a ruling to specify the Classification of the Agencies listed out being Corporation or Government Organizations into Central Government, State Government, Union Territory, local authority, Government Authority or a Government Entity, this authority would like to emphasize that Section 97(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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