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TMI Blog2024 (1) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of receipt of a copy of the judgment. Petition disposed off. - HON'BLE MR. JUSTICE RAJIV SHAKDHER AND HON'BLE MR. JUSTICE GIRISH KATHPALIA For the Petitioners Through: Mr Sandeep Sethi, Sr Adv. with Mr Anupam Varma, Mr. Nikhil Sharma, Ms Manu Tiwari, Ms Shreya Sethi, Ms Riya Kumar and Mr Sumer Dev Seth, Advs. For the Respondents Through: Mr Sanjeev Sagar with Ms Tanya Singh, Advs. for R-1 to 3/MCD. RAJIV SHAKDHER, J.: (ORAL) 1. We had heard this matter at some length on 14.08.2023. After hearing counsel for the parties, we had etched out the broad contours of the case. For convenience, the relevant parts of the order dated 14.08.2023 are set forth: 1. This writ petition was filed in the era when there were three Municipal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , concededly, includes cables through which electricity is supplied. 9. The petitioners also contend that the goods that they supply for maintenance of street lights form more than 25% of the value of services rendered by them. 10. Therefore, the petitioners claim that the notification dated 28.06.2017 has no application, and thus petitioner has rightly been paying GST, for which they only seek reimbursement from the MCD. 11. We may also note that after the notification dated 28.06.2017, another notification dated 25.01.2018 was issued, which adverted to the fact that even where service of composite nature was rendered, the rate of tax would be nil, provided that the value of goods supplied was not more than 25% of the total invoice value. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roads, public places, architect services, consulting engineer services, advisory services, and like services provided by business entities not involving any supply of goods would be treated as supply of pure services. On the other hand, let us take the example of a governmental authority awarding the work of maintenance of street lights in a Municipal area to an agency which involves apart from maintenance, replacement of defunct lights and other spares. In this case, the scope of the service involves maintenance work and supply of goods, which falls under the works contract services. The exemption is provided to services involves only supply of services and not for works contract services. [Emphasis is ours] 19. Therefore, the moot questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to file an affidavit within three weeks from today indicating clearly: (i) Whether the tax was payable and continues to remain payable by the petitioners for maintenance of street lights during the period in issue commencing from 01.07.2017 up until today? (ii) Whether the stand of the MCD that since, according to it, the petitioners were rendering pure service , the GST was payable by them at nil rate in terms of notification dated 28.06.2017 is correct or not? 26. We may also note that the petitioners have relied upon the order of the Orrisa Appellate Authority for Advance Ruling for GST dated 05.03.2019, which takes the position that for maintenance of street lights, GST is payable. 27. Respondent [sic Respondents] 4 to 6 will also ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise, for the period spanning between 21.09.2017 and 28.01.2018, the petitioners have paid CGST and DGST at the rate of 6% each. The relevant notifications, issued under the GST framework, for the aforementioned periods, are also adverted to in paragraphs 20 and 21 of the order dated 14.08.2023. 2.3 Similarly, in paragraph 22 of the order dated 14.08.2023, we noted that, presently, the petitioners are paying CGST and DGST at the rate of 6% each. 3. Thus, what is not in dispute is that the petitioners have been paying both CGST and DGST from 01.04.2017, at the rates indicated hereinabove, up until today. 4. The only defence offered by respondents no. 1 to 3/MCD is that it was not obliged to reimburse the GST paid by the petitioners as they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners, rightly, paid the service tax as a service provider in the first instance. (iii) Since service tax has been paid by the petitioners, respondent no. 1/MCD, being the recipient of the service, will have to bear the burden and consequently reimburse the same. 8. It is also relevant to note that the MCD had preferred a Special Leave Petition [i.e., Special Leave Petition (Civil) Diary No. 42299/2022] against the said judgment, which was dismissed by the Supreme Court, on merits, via order dated 30.01.2023. The observations made by the Supreme Court are set forth hereafter: Delay condoned. Having heard learned counsel for the respective parties and having gone through the impugned judgment and order passed by the High Court, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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