TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 1332
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....sp; Or is applicable in both cases ? 2) If GST is applicable, kindly clarify the following related aspects also,- a) Whether the GST on Liquidated Damages is covered under Schedule II entry No 5(2)(e) vide HSN code 9997-Other Services rate 18% is correct or any other entry is relevant? b) Liquidated Damages is determined and imposed upon the contractor after in-depth study. In such case, what will be construed as the time of supply. Will it be the period in which delay is occurring or it is the time when decision to impose Liquidated Damages is taken? c) If some part of delay has occurred before GST roll-out and some part of delay has occurred after GST roll but, whether GST will be applicable to the Liquidated Damages imposed for entire period of delay or to the period falling after GST roll-out? In case when GST is to be imposed for period after date of GST rollout but due to maximum capping of LD, the amount of LD is calculated at given percentage instead of being period-based, then how GST needs to be levied. ....
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....ble for delay is made. If the delay is on account of contractor, then Liquidated damages (LD) are calculated as per contract terms and levied upon the contractor. In accounting, the LD imposedis reduced from the total project cost while capitalizing the asset. Because of delay in the execution of work, the cost of project increases on account of Interest During Construction (IDC) and other administrative overheads. In such situation, LD helps in mitigating the impact of higher costs in form of IDC and administrative charges. Moreover, the contract entered into is for the purpose of construction of plant. There is no explicit agreement between the company and the contractor wherein the company is intending to supply service of tolerance of delay. The delay is neither desired by the company nor by the contractor but to impress upon the contractor to adhere to the timelines, LD clauses are inserted. However, if the delay occurs on account of vendors / contractors, LD is levied upon them Since, it was never the intention of the company to get its supplies/project delayed nor the contractors want to make delay and thereby causing company to tolerate it, the position ....
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....missioning (excluding insurance charges, taxes and duties) along with applicable price variation per week of delay or part thereof subject to the maximum 10% of the contract price for erection, testing and commissioning (excluding insurance charges, taxes and duties) along with applicable price variation." Similar clauses are there in supply, civil and structural work of the contract. Submission dt. 08.02.2018 I. STATEMENT OF FACTS 1. The Maharashtra State Power Generation Company Ltd (hereinafter referred to as applicants) is engaged in generation of power with object of making power available on affordable rates. 2 The applicant enters into contract with various contractors for the purpose of construction of new power plants or renovation of old plants or for operation of maintenance activities, etc. For example, the applicant has awarded the contract to M/s BHARAT HEAVY ELECTRICALS LIMITED for the purpose of erection, testing & commissioning of main plant package. 3. As per the contract, the contractor is required to commence the trial operation of unit-8 and unit-9 by 41 and 44 months respectively....
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....cluding insurance charges, taxes and duties) along with applicable price variation per week of delay or part thereof subject to the maximum 10% of the contract price for erection, testing and commissioning (excluding insurance charges, taxes and duties) along with applicable price variation." 7.7 For the purpose of deciding the amount of Liquidated Damages on the erection price, contract price along with the applicable price variation (excluding taxes, duties and insurances charges.) as per contact price adjustment shall be considered. Further Liquidated Damages for each unit shall be levied separately and for this purpose, price of one unit shall be half of the price of both the units. Similar clauses are there in supply of balance of plant package, erection testing and commissioning of balance of plant package, supply of main plant package, civil and structural works of balance of plant package and various another contract entered into with various parties. The applicant enters into contract with various suppliers which inter-alia includes:- * BHARAT HEAVY ELECTRICALS LIMITED. * BGR ENERGY SYSTEMS LIMITED * TATA PR....
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....thin which the services are required to be completed. The contractor undertaking the supply of service is aware of the fact that in case the services are not completed within the stipulated period, the value of contract will reduce. Since the recovery of Liquidated Damages is a part of the contract, it is submitted that the value of the main supply reduces to the extent of Liquidated Damages deducted by the applicant. The applicant relies upon the following judgments:- a) Commissioner of Chandigarh v/s. M/s. HFCL 2015(11)-TMI-893-CESTAT b) M/s. Victory Electricals Ltd. 2013-(298)-ELT-534 Reliance is placed on Australian Ruling issued under the Australian Goods & Service Tax Act, 1999: The Australian Goods & Service Tax Act, 1999 defines 'supply' u/s. 9-10(1) as follows: A supply is any form of supply whatsoever. The Sub-Section 9-10(2) further provides as follows: &n....
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....ill be considered as change of consideration of earlier supply (i.e. re-determination of consideration). It will not be considered as separate supply, but will be considered as adjustment event in relation to that earlier supply. * The book Australian Master GST Guide written by Philip McCouat (2014) 15th Edition contains Australian GST Act and application of the same. The paragraph 4-085 deals with damage awards and out of court settlements. The said paragraph clearly provides that there is no supply when any charge is collected for termination of breach of contract. The extract of book is reproduced below: * "However, the Tax Office accepts that there is no supply where the order or settlement is wholly concerned with finalizing a claim for damages or compensation for previous properly damage, negligence causing loss of profits, breach of copyright, wrongful use of trade name, personal injury, termination or breach of contract In such cases, there is therefore no GST liability. " Thus, Australian GST has treated the payment of liquidation damages as part of the same supply and mere re-determination of the consideration of the same s....
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.... to issue the invoice. Such auxiliary activities could include activities like measurement, quality testing, etc. which may be essential pre-requisites for identification of completion of service. The test for the determination whether a service has been completed would be the completion of all the related activities that place the service provider in a situation to be able to issue an invoice. However, such activities do not include flimsy or irrelevant grounds for delay in issuance of invoice. " Thus, the Ancillary work is required to be completed for the completion of service. In this case, the ancillary work i.e. discussion with the contractor is required to be completed before the amount is deducted. Therefore, as per the interpretation of the applicant, the time of supply is the time when both the persons agree for the purpose of deduction of Liquidated Damages. e) As per Section 31 of the GST Act, the invoice can be raised only when the supply of service is completed. As mentioned above, the supply of service is completed, when discussion with the contractor is completed and he has agreed....
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....bsp; 3. MRS. Priyaraj Electronics Ltd Versus Commissioner of Central Excise Bangalore 2016 (6) TMI 873 - CESTAT BANGALORE 4. UNITED TELECOM LTD 2006 (204) E.L.T. 626 (Tri. - Bang.) = 2006 (9) TMI 321 - CESTAT, BANGALORE b. Under GST law section 15(1) of the CGST act, 15. (1) The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply. Section 15 of the CGST Act 2017, which is similarly worded i.e. The transaction value is which actually paid or payable hence we can say that the ratio of the above cited judgements can also be applied to the section 15(1) of the CGST Act, 2017 and it can be concluded that resultant price after Liquidated Damages would be the transaction value under section 15(1) of the CGST Act, 2017. 2)....
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....ray plates and other chemicals and take X-ray photographs of patients according to requisitions from physicians as also of his own patients. After taking the X-ray, he used to give technical advice to his patients and was charging a flat rate towards his remuneration and cost of materials. Sales Tax Officer was of the view that the turnover arising from such transactions was liable to tax under the Act. The hon'ble High Court of Orissa held that; 'Mere passing of property in an article or commodity during the course of the performance of the transaction in question does not render it a transaction of sale. For, even in a contract purely of work or service, it is possible that articles may have to be used by the person executing the work and property in such articles or materials may pass to the other party. That would not necessarily convert the contract info one of sale of those materials. In every case the court would have to find out what was the primary' object of the transaction and the intention of the parties while entering into it.' &n....
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....ening or non-happening of a future event), the tax will be payable on the revised amount provided the excess amount is either refunded or a suitable credit note is issued to the service receiver. However, concession is not available for bad debts. It is evident from the above circular, that in case the consideration for any other service is changed as per the term and conditions laid down in the contract, then service tax/GST will be payable on the renegotiated amount. Additional submission on 07.03.2018 1. We thank you very much for patient hearing on 28.02.2018 on the above application. As submitted during the hearing following additional submission/documents are submitted: - i) Manner of Recovery. As directed, a specimen running bill raised by M/s Bharat Heavy Electricals Limited, bearing no. MS/PW/9515/13/1027(89) is attached as Annexure -l. ln this case 15% of the invoice amounting to Rs. 56,29,471/- has been deducted as retention This amount is deducted on inv....
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.... which is in its nature and purposes susceptible of division and apportionment, having two or more parts in respect to mailers and things contemplated and embraced by it, not necessarily dependent on each other nor intended by the parties so to be. " The term "divisible contract" whose synonym is "severable contract" is also defined in the same dictionary on page no. 1373 as under: - Severable contract: - A contract which includes two or more promises which can he acted separately such that the failure to perform one promise does not necessarily put the promisor in breach of the entire contract. A contract, the nature and purpose of which is susceptible of division and apportionment, having two or more parts, in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each other, or intended by parties as being dependent Gross v Maytex Knitting Mills of Cal.. 116 C.A. 2d 705, 254 P. 2d 163, 167 See separability clause. When a contract is severable, a breach may be found to....
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.... are recovered for compensating the loss suffered by the recipient. The section 73 and section 74 of the Indian Contract Act, 1872 provides for recovery of liquidated damages in case of breach of contract. The provision of the section 73 and section 74 of the Indian Contract Act, 1872 reads as follows: - * 73. Compensation for loss or damage caused by breach of contract When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. * 74. Compensation for breach of contract where penalty stipulated for.- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party w....
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....E CONCERNED OFFICER The submission of the jurisdictional authority is as follows- "Comments against questions/issues on which Advance Ruling Required: 1) Whether GST is applicable to LD in case of Type 1 i.e. : Operation & Maintenance activities Type 2 i.e. : Construction of new power plants or renovation of old plants GST is applicable to liquidated Damages (LD) in both type of cases As LD is treated as consideration by Appellant which is supply under Schedule II entry no. 5(2)(e)of MGST Act. 2) If GST is applicable, kindly clarify the following related aspects also (a) Whether the GST on I.D is covered under Schedule II entry No 5(2) (c) vide HSN code 9997-other services rate 18% is correct or any other entry is relevant? (b) LD is determined and imposed upon the contractor after in-depth study. In such case, what will be construed as the time of supply? Will it be the period in which delay is occurring or it is the time when decision to impose LD is taken'' (c) If some part of delay has occurred before GST roll-out and some part of delay has occurred after GST roll-out, whethe....
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....itted that they would be submitting, latest by dt.08.03.2018, copies of invoices evidencing recovery of liquidated damages. Jurisdictional Officer Sh. S.D. Page also appeared and made written submission. 05. OBERVATTONS We have gone through the facts of the case. The questions posed are in respect of 'liquidated damages'. We find that the applicant contends that these damages being towards deficiency of services and reduce the original consideration and will not be considered as separate service covered by the term 'Obligation to tolerate an act or a situation'. To understand the appropriateness of this contention, we would have to go through the facts. There is also a sample agreement provided but before that let us revisit the brief introduction as given by the applicant as under - * Maharashtra State Power Generation Company Limited (Mahagenco) is a State Power Utility engaged in generation of power with objective to make Power available to all at affordable rates. * In case of various contracts entered into by the company, there is a clause to deduct Liquidated damages (LD) in case of default by the contractor / vendor to complete the work in time. The LD ....
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....ance, etc. However, the first thing that we notice is that the agreement pertains to the period before the GST Act came into force. The applicant has submitted that the agreements are usually entered on the lines similar to the agreement submitted for our perusal. The clauses as are relevant for determination of the issue at hand could be had a look at - * Agreement dt.30.03.2010 Whereas the Owner is desirous that certain ancillary services should be provided by the Contractor, viz. Erection, Testing & Commissioning of Main Plant equipments consisting of Steam Generator, Steam Turbine and Generator, C&I, Electrical equipments and other Auxiliary Equipments for Chandrapur T.P.S. Expansion Project - 2x500 MW and in furtherance of above, the Owner has issued a Letter of Award No. DG/Chandrapur Expn. Proj./MP/Erection & Commg./3415 dated 25.07.2008 and Letter No. DG/CHN 2x500MW./MP/Erection/0452 dated 21.01.09 (Amendment-1) to the Contractor for Erection, Testing & Commissioning of Main Plant equipments consisting of Steam Generator, Steam Turbine and Generator, C&l, Electrical equipments and other Packages for Chandrapur T.P.S. Expansion Project - 2x500 MW for the sum of Rs. 2 ,75,....
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.... Insurance charges. : Rs. 2478000000/- ii) Service tax on E & C at 12.36% : Rs. 306280800/- Total Price for Erection, Testing & Commissioning of Main Plant Equipments including Comprehensive Insurance (Rupees Two Hundred Seventy eight Crores Forty two Lakhs Eighty Thousand Eight Hundred only) Rs.2784280800/- 4.0 CONTRACT PRICE ADJUSTMENT / VARIATION 4.1 The price for erection, testing & commissioning excluding insurance charges and taxes & duties, shall be subjected to price variation as per the Terms of Bid Specification under ref.1 with Base Indices as on March 08. The price variation shall be subjected to a ceiling of (+/-) 20% of the contract price for Erection, Testing & Commissioning excluding taxes & duties and insurance charges. 4.2 In case the contract period is required to be examined beyond the cut off dates for reasons attributable to the Contractor, for making payments towards price variation, the Owner shall select the indices in the P.V. formula either by restricting their value to contractual cut off date or the actual indices prevailing at that time whichever is lower. In case the contractual period is extended for the reasons attributable to the Owner in ....
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....ited with Government Authorities as per Service Tax Act. M/s. BHEL shall also furnish the certificate on quarterly basis from Head of Finance from the respective Unit certifying that the Service Tax claimed from MahaGenco has been deposited with the respective Tax Authorities. * Amendment No.1 dt.11.01.2009 In view of the discount offered by BHEL, para 3.1 of Erection LOA under ref.1 is amended as below. The contract price for Erection, Testing & Commissioning of Main Plant equipments is Rs. Rs. 2,75,28,20,000/- (Rupees Two Hundred Seventy Five Crore Twenty Eight Lakh Twenty Thousand only) as detailed below. Sr No. Particulars Amount in Rs. i) Price for Erection, Testing & Commissioning including Comprehensive Insurance charges Rs. 2,45,00,00,000/- ii) Service tax Including applicable Cess @ 12.36% Rs. 30,28,20,000/- Total Price for Erection, Testing & Commissioning of Main Plant Equipments including Comprehensive Insurance (Rupees Two Hundred Seventy eight Crores Twenty Eight Lakh Twenty Thousand only) Rs.2784280800/- * Section 2 - General Conditions of Contract 3.0 DEFINITION OF TERMS 3.9 "works" shall mean labour and services and complete erection, tes....
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....l for him, without prejudice to any other right he may have under the contract, to take the works wholly or in part out of the contactor's hand and re-contract w till any other person or persons to complete the works or any part thereof. The owner shall be entitled to retain and apply any balance which may otherwise be due to the contactor or such part thereof, as may be necessary, to the payment of cost of executing the said part of the works or of completing the works. If the cost of executing the said part of the works or of completing the works thereof as aforesaid shall exceed the balance due to the contractor, the contractor shall pay such excesses. Such payment of excess amount shall be independent of the liquidated damages for delay which the contactor shall have to pay if the completion of works is delayed. In addition, such action by the owner as aforesaid shall not relieve the Contactor of his responsibility to pay liquidated damages for delay in completion of the works as defined in this contract. 51.0 OWNERSHIP OF PLANT 51.1 The plant and equipment supplied by the Contractor pursuant to the contract shall become the property of the Owner at whichever is the ear....
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....ng insurance charges, taxes and duties) along with applicable price variation per week of delay or part thereof subject to the maximum 10% of the contract price for erection, testing and commissioning (excluding insurance charges, taxes and duties) along with applicable price variation." 7.7 For the purpose of deciding the amount of Liquidated Damages on the erection price, contract price along with the applicable price variation (excluding taxes, duties and insurances charges.) as per contact price adjustment shall be considered. Further Liquidated Damages for each unit shall be levied separately and for this purpose, price of one unit shall be half of the price of both the units. 13.5 PAYMENT TOWARDS ERECTION, TESTING AND COMMISSIONING 13.5.1 10% (ten percent) advance on the price for Erection, Testing & Commissioning of Equipments alongwith applicable service tax & education cess but excluding insurance charges shall be paid within 30 (thirty) days of fulfillment of the following by the Contractor i .............................. 13.5.2 85% (Eighty five percent) i.e. (95% of the contract price for erection, testing & commissioning of equipments less 10% advance....
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.... occurrence of this event, there is evaluation in terms of whether the supply of the deliverables under the agreement were supplied within the time frame as agreed upon by the Contractor. This evaluation results in either a timely or delayed or a premature performance. The finding of this evaluation when there being a delay, the contingent liability of liquidated damages translates into an actual recoverable liability. This is the second event. What we say has been incorporated in the agreement in the words thus - The liability of payment of these liquidated damages by the Contractor will he established once the delay in successful completion of trial operation is established on the part of the Contractor. 3. Both the events have their consequences. The first event calls for the payment of a contract price to the Contractor. The second event calls for payment of liquidated damages to the Owner. 4. The manner employed for recovery of the contract price or the liquidated damages would not define what a contract price or the liquidated damages mean. 5. The deduction from the amount as payable to the Contractor is for the purposes of adjustment of the accounts. 6. Though the situat....
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....uch claims regularly as and when they fall due. Such bills shall be supported by appropriate documents or explanations, to enable the Contractor to properly identify such claims. Such claims shall be paid by the Contractor within 15 (fifteen) days of the receipt of the corresponding bills and if not paid by the Contractor within the said period, the Owner may then deduct the amount from any monies due or becoming due by him to the Contractor under this contract or any other contract. These amounts may be recovered by actions of law or otherwise, if the Contractor fails to satisfy the Owner of such claims. A perusal of the above clause suggests that when the Owner incurs certain expenses which should have been borne by the Contractor, there is a separate mechanism of recovery also other than recovery by way of adjustment from the payments to be made to the Contractor. d. There is also a clause about Contractor's default thus - 21.0 CONTRACTOR'S DEFAULT 21.1 If the contactor shall neglect to execute the works us defined in the contract with due diligence and expedition or shall refuse or neglect to comply with any reasonable orders given to him in writing by the Engineer ....
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....sed by the Contractor Rough working by the Owner (applicant) 1 Boiler & Aux - Unit-9 For the work done during March'13 As per the Annex Enclosed 375, 29,811 37529810 4174816 41704626 2 Less. Advance @10% 37,52,981 3752981 Advance 3 Less Compln of P G. Test(5%) 18,76,491 1876491 Retention 4. Net Billing (4) = (1)-(2)-(3) 319,00,339 759033 Tax 5. Service Tax @12.36% on 90% billing 41,74, 816 5629471 against L. D - 15% 6. Net billing with Service Tax (6) = (4)+(5) 360,75,155 12017976 Deductions 29686680 N pay What the above rough calculations as shown by the applicant reveal is that the amount shown as Net and Tax is acceptable to the applicant. It is only while making the payment of the above acceptable amount that the applicant deducts some amount towards liquidated damages. Thus, the value of the work done and which is to be paid is not affected by the amount deducted therefrom towards liquidated damages. Thus, the consideration for the work done remains unaltered. How the amount for the work done is discharged between the parties should not bother the Taxmen as these are the adjustments between the parties. For the Taxma....
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.... the invoice value. The words " price actually paid or payable" in respect of the value of the goods or services supplied do not come into play in the present set of facts of deduction of the amount towards liquidated damages. We have seen above that this deduction does not mean that the price actually paid is less. The income of the applicant is recovered by deducting from the outgoings of the applicant. This would not translate into making the income of the applicant as being the other party's lesser income or the applicant's lesser expenditure. We have seen above that the contract price and the liquidated damages are independent events. 9. We find that the applicant has argued that it was never the intention of the company to get its supplies/project delayed nor the contractors want to make delay and thereby causing company to tolerate it. In this regard, we have to observe that if an agreement has such a clause and if the eventuality actually happens then the GST Act has provided for such an eventuality in terms of the provision as follows : SCHEDULE II [See section 7] ACTIVITIES TO BE TREATED AS SUPPLY OF GOODS OR SUPPLY OF SERVICES 5. Supply of services The....
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....oth as made by the Contractor. In fact in the present case, the levy of liquidated damages is specifically identified as an independent levy. We have seen that the Contract Price Variation clause in the impugned agreement, does not provide for variation on account of liquidated damages. And above all, we have seen the intent as being reflected in the treatment of the parties as not to alter the value of the work done and the tax liability on such value while making deductions therefrom. The reliance on case laws is, therefore, not helpful to the applicant. The facts of the instant case before us being distinct, we would refrain from discussing the other points in support of the contention. Having seen as above, we refer to the questions as posed for our decision. Question 1 Whether GST is applicable on Liquidated Damages in case of Type 1 i.e. Operation & Maintenance activities Type 2 i.e. Construction of new power plants or renovation of old plants Or is applicable in both cases? We have not been provided with separate agreements in respect of the situations posed above. The facts of each agreement and the attending circumstances would have to be seen to provide an answer. ....
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....ll be construed as the time of supply. Will it be the period in which delay is occurring or it is the time when decision to impose Liquidated Damages is taken? We would be constrained to restrict the answer to this question in terms of only the agreement placed before us. The question would stand answered by the following clauses in the agreement - 10.0 LIQUIDATED DAMAGES 10.1 If the Contractor fails to achieve the trial operation of the unit within the stipulated time period as indicated above from the zero date then the Owner shall levy Liquidated Damages on the contractor @1/2% of the contract price for Erection, Testing & Commissioning along with applicable price variation price per week of delay or part thereof subject to a maximum of 10% of the price for Erection, Testing & Commissioning along with applicable price variation. For the purpose of levy of liquidated damages, the contract price for Erection, Testing & Commissioning excluding Insurance charges and taxes & duties and the same for one unit shall be half of the total price. * Section 3 - Special Conditions of Contract 7.0 LIQUIDATED DAMAGES FOR DELAY IN ERECTION, TESTING AND COMMISSIONING 7. 1 The Contractor s....
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.... and insurances charges.) as per contact price adjustment shall be considered. Further Liquidated Damages for each unit shall be levied separately and for this purpose, price of one unit shall be half of the price of both the units. All the above clauses reveal that the levy of liquidated damages is not when the delay is occurring. The Agreement expressly provides that liability of payment of these liquidated damages by the Contractor will be established once the delay in successful completion of trial operation is established on the part of the Contractor. This would define the time of supply. c) If some part of delay has occurred before GST roll-out and some part of delay has occurred after GST roll-out, whether GST will be applicable to the Liquidated Damages imposed for entire period of delay or to the period falling after GST roll-out? In case when GST is to be imposed for period after date of GST rollout but due to maximum capping of LD, the amount of LD is calculated at given percentage instead of being period-based, then how GST needs to be levied. The question is based on some incorrect presumption owing to which the applicant seems to have adopted some method of deduc....