AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (11) TMI 1573
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.... The Applicant's prayer for Amendment of Application is granted and Advance Ruling is admissible on this question under Section 97(2)(b) of the CGST/WBGST Acts, 2017 (hereinafter referred to, collectively, as "the GST Act"). The Applicant declares that the issue raised in the application is not pending nor decided in any proceedings under any provisions of the GST Act. The officer concerned has raised no objection to the admissibility of the Application. The Application is, therefore, admitted. 2. The Applicant refers to the Advance Ruling pronounced by this Authority in the case of EMC Ltd (Case No. 07 of 2018 and Order No. 04/2018-19 dated 11/05/2018) = 2018 (5) TMI 964 - AUTHORITY FOR ADVANCE RULINGS, WEST BENGAL in which this Authority has held that EMC Ltd has not contracted separately for ex-factory supply of materials, but for the composite supply, namely works contract service for construction, erection and commissioning of the Tower Package, of which freight and transportation is merely a component and not a separate and independent identity, and GST is to be paid at 18% on the entire value of the composite supply, including supply of materials, freight and transportat....
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.... of transmission line towers and accessories, supply of earth wire, hardware fittings and conductors, earth wire accessories and OPGW and associated fittings and accessories and Tower Earthing required for complete execution of the Package, inland transportation, insurance, delivery, handling of stores, detailed survey of route alignment, profiling, tower spotting, optimization of tower location, soil testing, geotechnical investigations, piling, casting of foundation for tower footings, installation of Tower Earthing, erection of towers, tack welding of bolts and nuts, painting, fixing of insulator strings, stringing of conductors and earth wires/OPGW along with necessary line accessories, stringing of power lines, supply and erection of span markers, obstruction lights for aviation requirement, testing and commissioning of the erected transmission lines and other activities as may be required for completion of the project. The contractual agreement is found to be in sharp contrast to the narrow focus on the manufacture and installation of standalone towers that the Applicant would like the question to be confined to. It is clearly a supply of a bundle of goods and services that....
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....In S/S Triveni N L Ltd [RN - 910, 911 & 912 of 2001 (All)] = 2014 (4) TMI 842 - ALLAHABAD HIGH COURT Allahabad High Court observes that 'permanently fastened to anything attached to the earth' has to be read in the context for the reason that nothing can be fastened to the earth permanently so that it can never be removed. If the article cannot be used without fastening or attaching it to the earth and is not removed under ordinary circumstances, it may be considered permanently fastened to anything attached to the earth. Furthermore, in the context of the GST Act, if the article attached to the earth is not agreed to be severed before supply or under a contract for supply, it ceases to be goods and, for that matter, a moveable property. 6. A Tower Package includes the erection of a series of transmission towers linked together by the power line for transmitting electricity. The towers are erected on foundations built on the land, and benefits of the towers cannot be enjoyed unless they are so attached. Once commissioned, the transmission line and the transmission towers are not to be shifted under ordinary circumstances. In fact, the transmission line is being constructed after ....
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....le property. The emphasis is on the intention of the party. The Apex Court observes that the machine in question can be moved and has indeed been moved after the road construction and repair project, for which it was installed, is completed. However, if a machine is intended to be fixed permanently to a structure embedded in the earth, the moveable character of the machine, according to the Supreme Court, becomes extinct. In the present context, it has already been pointed out that the series of transmission towers are being erected under the Tower Package with no intention of removing or shifting them in foreseeable future. They are, therefore, clearly intended to be fixed permanently to the foundation embedded in the earth. The moveable character of the towers, therefore, becomes extinct. c) In the case of Essar Telecom Infrastructure Pvt Ltd (supra), the Karnataka High Court, differing with Bombay High Court's judgment in Hutchison Max Telecom P Ltd [(2008) 224 ELT 191 (Bom)] = 2007 (8) TMI 6 - HIGH COURT, BOMBAY, observes that mobile towers do not acquire the character of immovable goods, as they can be dismantled and replanted elsewhere. The Karnataka High Court has not elab....
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....eparate agreements and the two are not naturally bundled. The First Contract stands executed when the goods are delivered to PGCIL at the factory gate. The Second Contract involves all subsequent activities, including transportation etc. and services performed on the goods supplied by the contractee. In this connection the Applicant refers to a Ruling of Karnataka Authority for Advance Ruling (hereinafter referred to as "KAAR") in the case of M/s Giriraj Renewables Pvt Ltd. wherein the contract is for setting up a solar power plant, where the contractee imports the solar photovoltaic module (PV Module) and supplies them free of cost to the contractor at the work site. The Ld KAAR observes that the contractor cannot, therefore, claim that he is supplying the PV Module and the other supplies are ancillary to this principal supply. As the goods belong to the contractee at the time of provisioning the services, it cannot be said that the supplies of materials and services are naturally bundled and a composite supply. Drawing an analogy the Applicant argues that ex-works supply of materials results in the transfer of title of the goods to PGCIL at the factory gate, and all subsequent a....
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....y gate. The JV needs to move the goods and deliver them at the work site before claiming 60% of the payment for execution of the First Contract. The balance amount is to be paid in phases till completion of erection of all towers of the transmission line. 10. It is immediately apparent from the above discussion that the First Contract cannot be executed independently of the Second Contract. There cannot be any 'supply of goods' without a place of supply. As it is evident from the above discussion that title to the goods has not been transferred to PGCIL at the factory gate, supply under the First Contract involves movement and/or installation at the site, and the place of supply shall be the location of the goods at the time when movement of the goods terminates for delivery to PGCIL or moved to the site for assembly or installation [refer to Section 10(1)(a) & (d) of the IGST Act, 2017]. The First Contract, however, does not include the provision and cost of such transportation and delivery. It, therefore, does not amount to a contract for 'supply of goods' unless tied up with the Second Contract. In other words, the First Contract has "no leg' unless supported by the Second Cont....
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.... these judgments reveals that the prevailing view of the Apex Court at that time was that no straitjacket formula can be devised that might be applicable under all conditions for distinguishing a contract for the sale of goods from works contract, and it should depend on the facts and circumstances of each case. Dominant intention as reflected in the terms and conditions of the contract and many other aspects are required to be taken into account. The 46th Amendment to the Constitution has enlarged the scope of tax on the sale of goods by including therein inter alia tax on the transfer of property in goods (whether as goods or in some other form) involved in executing works contract [sub-clause (b) of clause (29A) to Art 366]. A legal fiction is thereby created, which has enabled the State to segregate an indivisible composite works contract into contracts for the sale of goods and for service, and impose a tax on the transfer of property in goods. The legal history of works contact has since travelled a long way. In Larsen & Toubro Ltd [(2013) 12 SCALE 77] = 2013 (9) TMI 853 - SUPREME COURT a three-member Constitution Bench of the Apex Court sums it up, describing works contract....