TaxTMI 
TaxTMI 
2013 (6) TMI 10
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....s FTWZ unit in a FTWZ which is already notified or will be notified as SEZ by the Central Government as per Sec. 4(1) of the SEZ Act. The Applicant proposes to import parts and components of wind operated electricity generators from outside India and store the same in the said FTWZ unit. The list of goods that the Applicant proposes to import and store in FTWZ unit is indicated. The aforesaid parts and components of wind operated electricity generators are covered under Schedule C (S.No.82 and 103 of the Maharashtra Value Added Tax Act, 2002 (hereinafter referred to as 'MAVT Act'). The relevant entries under Schedule C are as under :- Sr. No. Name of the commodity Conditions and Exceptions Rate of Tax (1) (2) (3) 82 Renewable energy devices as may be notified, from time to time, by the State Government in the Official Gazette and spare parts thereof 5% 103 Windmill for water pumping and for Generation of electricity and its Components, parts and accessories. 5% The Maharashtra Government, vide Notification No. VAT-1505/CR-119/Taxation 1 darted April 1,2005 issued under Entry 82 in Schedule 'C' appe....
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.... SEZ/FTWZ Unit to its DTA Unit would be eligible for exemption from the payment of SAD under Notification No. 45/2005 Cus dated May 16, 2005? In this regard it is stated that as per present practice, the benefit of said notification is being extended to all Units in FTWZ-Arshiya including their Clients subject to the condition that item/goods cleared from FTWZ should not be exempted from payment of Central Sales-tax under Central Sales-tax Act, 1956 (in short CST Act)/VAT as provided in proviso to the notification. The said benefit is being extended to all importers (Units or Clients of Units) for clearance of all goods from FTWZ to DTA irrespective of the status of importer being a trader or manufacturer or service provider or any other person. There is no discrimination on the ground whether the clearance to DTA unit is on the basis of Sale or Stock Transfer. However, in all cases the importer has to submit evidence that the goods in specific are not exempted from CST/VAT, otherwise an undertaking to the effect that the goods are not exempted from CST/VAT is also accepted from the importer. Therefore, the activity in respect of which the present advance ruling has been sought is ....
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....es. Therefore, it appears that it would be a pre-mature stage for an interpretation by Authority for Advance Rulings as the exemption under notification 45/2005-cus itself is based on the interpretation of Act and Rules. It is also clear from the text of the notification "clearance from SEZ in accordance with SEZ Act 2005 and SEZ Rules 2006" that the main emphasis is given on SEZ Act and SEZ Rules. As per prevailing practice at FTWZ-Arshiya, Panvel, all the Units including their Clients are being allowed the benefit of said notification subject to conditions of the notification; the benefit would be given to the applicant also as being given to similarly placed Units/Clients. The notification in question is of general nature and is applicable to all goods cleared from SEZ/FTWZ and eligibility is based on description of the goods and the applicability of CST/VAT in a particular State where goods are taken for sale/use/other purpose. There is no dispute as far as conditions of the notification are concerned. However depending upon the description of the goods and the state where goods are to be taken, the importer is required to prove that the goods in question are not exempted....
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....ourg'). However, the Balance sheet of the Applicant provides that GE Electric Company USA ('GE USA') is an ultimate holding company of the Applicant. According to the department, no other documentary evidence has been provided to prove the status of the Applicant. The Applicant submitted that GE USA is an ultimate holding company of all the GE entities. In other words, the Applicant is held by intermediate companies i.e. GE Singapore and GE Netherlands which is turn are wholly owned by GE Luxembourg. Similarly, GE Luxemburg through various intermediaries is wholly owned by GE USA. Therefore, the Balance Sheet provides that GE USA is the ultimate holding company of the Applicant. The Applicant is a wholly owned subsidiary of GE Luxembourg as well as GE USA. The Applicant enclosed a chart certified by the Company Secretary. Therefore, the chart as certified by the Company Secretary submitted by the Applicant to support that the Applicant is a wholly owned subsidiary of GE Luxemburg and the statement in the Balance Sheet that the ultimate holding company of the Applicant is GE USA stands true. As per the definition of 'subsidiary' under Section 4(1) (c) of the Companies Act, ....
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....nd are subject to VAT @ 5%. Further, the Maharashtra Government has not issued any order to exempt sale of goods stock transferred by the Applicant. Further, even the department could not produce any evidence to show that the goods cleared by the Applicant are exempted from the payment of VAT/CST. The Applicant submitted vide Para 4 to 6 of Annexure I and Para 12 to 15 of the Application that the said goods are not exempt from VAT/CST. The department has further stated that the activity in respect of which the present advance ruling is sought is an 'ongoing' activity in case of other importers. The Applicant submits that Section 96A(b) of the Finance Act provides for the category or class of persons who can file an advance ruling. Section 96C is that the activity on which advance ruling is sought should be a proposed business activity. It nowhere provides that the Applicant cannot file an advance ruling if such an activity is an ongoing activity for other importers. Therefore, the above contention of the department is baseless and hence incurred. The department has stated that the Applicant has sought a clarification dated May 21, 2012 from the department on the present issue....
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....nerators are subject to tax @ 5%. It is conceded position that goods imported by the applicant are not exempted by the State Government from the payment of VAT. It is to be noted that in case of stock transfer two persons are not involved, as the stock transfer is between the units of same legal entity. It is not a "sale" as defined under Section 2(24) of the MAVT Act, The inevitable conclusion is that VAT which is a tax on sale of goods within the state cannot be levied on stock transfer. The position whether there is a sale involved or mere stock transfer as claimed by the applicant has to be adjudicated by the concerned authorities. But so far as, present application is concerned the ruling is being given by holding the position that being a stock transferred no VAT is chargeable. However, if during any proceeding initiated under the MAVT Act it is found that the claim of the applicant is not factually supportable, the Revenue Authority can decide that issue in accordance with law. It is therefore made clear that the present ruling is being rendered by treating the transaction on the factual scenario as projected by the applicant and not on analysis of the factual position. It i....