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TMI Blog2024 (4) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... riate writ for calling for the records and proceedings related to the issuance of the Order No. GUJ/GAAAR/ APPEAL/2021/16 dated 08.04.2021 passed by the Ld. Gujarat Appellate Authority for Advance Ruling (Annexure-P) and after going into legality and validity, proprietary thereby to quash and set aside the proceedings initiated by the impugned Order No. GUJ/GAAAR/ APPEAL/2021/16 dated 08.04.2021; C. That this Hon'ble Court be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate order for granting the refund of the differential amount of tax paid by the petitioner for the period from 01.07.2017 till date; D. For costs of the petition/application and orders thereon and; E. For such further and other reliefs, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." [2] The brief facts of the case are as under: [2.1] The petitioner is engaged in the business of manufacturing of various industrial Boilers including the Biomass Fired (Steam) Boilers and Agro Waste Thermic Fluid Heaters. [2.2] The industrial Boilers being manufactured by the petitioner both conventional and non-conventional produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Authority, after hearing the petitioner, by order dated 17th September 2020, rejected the application preferred by the petitioner disallowing the benefit of lower rate of GST on the ground that on the basis of details of the products available on the website of the petitioner, the conventional fuel was stated to have been used for generation of heat or steam, and the petitioner has not provided any information with regard to the use of non-conventional fuel for the Boilers, Biomass Fired (Steam) Boilers or industrial Agro Waste Thermic Fluid Heaters manufactured by the petitioner. The Gujarat Advance Ruling Authority has also rejected the application of the petitioner for not producing any documentary evidence such as supply contracts, order of WTEP (Waste to Energy Plant) from the concerned authority to substantiate that the products manufactured by the petitioner are supplied to use in initial setting up of renewable energy plants and devices including Waste to Energy Plants / devices. [3] Feeling aggrieved by the order dated 17th September 2020 passed by the Gujarat Advance Ruling Authority, the petitioner preferred the appeal before the Gujarat Appellate Authority for Advanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the non-conventional fuel. It was further submitted that the Gujarat Advance Ruling Authority has only considered the material available on the website of the petitioner without considering the details submitted by the petitioner along with the application, which clearly stipulates that the products manufactured by the petitioner are using non-conventional fuel. It was submitted that the Gujarat Advance Ruling Authority has committed an error by relying upon the details of all the products without distinguishing between the products which uses the conventional fuel and nonconventional fuel, and thereby, committed an error by adopting the products, which uses the conventional fuel as the same fuel for the non-conventional products of the petitioner namely Biomass (Steam) Boilers and Agro Waste Thermic Fluid Heaters. [9] Learned advocate Mr. Modh submitted that the petitioner has placed on record the Performance Certificate issued by the Gulf Llyods Industrial Services (India) Pvt. Ltd., which has certified that both the products manufactured by the petitioner namely Biomass Agro Fired (Steam) Boilers and the Agro Waste Thermic Fluid Heaters are using Agro Waste such as rice husk, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax-2 vs. Jay Chemical Industries Ltd (R/Tax Appeal No. 62 of 2020 decided on 17th February 2020), to submit that this Court, in the said judgement, has discussed in detail as to what is power in common parlance as to be understood as "energy", which can be in any form being mechanical, electricity, wind or thermal and accordingly, the steam produced by the assessee in the said case was termed as "power", which would qualify for the benefit available under Section 80IA(4) of the Income Tax Act, 1961. It was, therefore, submitted that the steam generated by the products manufactured by the petitioner is also power which is produced by use of the non-conventional fuels and would entitle the petitioner to get the benefit of lower rate of GST as per the Notification No. 01/2017, wherein the rate prescribes to the renewable energy devices and Waste to Energy Plant is at 5% / 12%, which includes Biogas Plant, Solar power based devices, etc. It was, therefore, submitted that this Court, in the aforesaid decision in the case of Jay Chemical (supra), has held that the steam would be power. It would be in the category of renewable energy produced by the plants or machines manufactured by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bio-CNG / Enriched Biogas or Power, the same cannot be termed as Waste to Energy Plant or devices mentioned in Clause (e) of Entry at Serial No. 234 of Schedule-I of the Notification No. 01/2017 as the said Entry does not refer to Boiler generating heat and steam and therefore, both the authorities have rightly not enlarged the scope of the Entry No. 234 / 201A and the petitioner is rightly not held to be entitled to the lower rate of GST for both the products. Learned advocate Mr. Patel also submitted that the jurisdiction of this Court under Article 226 of the Constitution of India for interference in the Advance Ruling Authority and the Appellate Authority is very limited, as held by the Hon'ble Supreme Court in the case of Appropriate Authority and another vs. Sudha Patil reported in 1998 (8) SCC 237. [13] Reliance was also placed on the decision of the Hon'ble Bombay High Court in the case of JSW Energy Limited vs. Union of India reported in 2019 (27) GSTL 198 (Bom), to submit that the Hon'ble Bombay High Court, in the similar facts, held that the principles of judicial review do not concern themselves with the decision itself, but are mostly confined to the decision making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonal hearing, is Biomass Steam Boiler. The fuel used for generating heat from the said product has been specified as Coal, wood, briquette, etc. as evident from the image produced under: 16.4 Thus, it is seen that the products matching the description of the product under consideration use fuel such as Imported coal, rice husk, lignite, Coal, wood and briquette. None of these are non-conventional but are purely conventional fuels used for generation of heat or steam. As discussed above, the crucial factor is that the heat or steam should have been generated by use of a waste/ non-conventional element so as to qualify under the head 'Waste to energy plants /devices'. However, the technical specifications available on the website of the applicant do not indicate that their product is generating energy from waste. Rather the literature indicates that the energy is generated by use of conventional elements as listed above. 16.5 In the instant case, we find that the applicant has presented partial facts and deliberately chosen to remain silent on the vital aspect regarding the fuel used in their energy devices/ plants. This situation is akin to naming one's pet cat as 'Tiger' a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (h) Photo voltaic cells, whether or not assembled in modules or made up into panels [16] To get the benefit of lower rate of GST, it was the Biomass / Agro Boilers as well as the Agro Waste Fluid Thermic Heaters produced by the petitioner does not fall under any category from (a) to (h). The claim of the petitioner is that it falls in the category of Waste to Energy Plant / devices is also not considered by the Appellate Authority on the ground of Waste to Energy Plant, can be considered only the product, which produces either by Biogas / Bio-CNG / enriched Biogas or Power from urban, industrial and agricultural waste. The 'power' used by the Government of India, Ministry of Environment, Forest and Climate Change Notification dated 8th April 2016, in the objectives of the scheme for Solid Wastes Management Rules, the petitioner has tried to suggest that the power includes the steam, as held by this Court in the decision in the case of Jay Chemical Industries Ltd (supra), in which, this Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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