TaxTMI 
TaxTMI 
2019 (12) TMI 1244
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....No. 18/WBAAR/2019-20 dated 19.08.2019 = 2019 (8) TMI 1153 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL, pronounced by the West Bengal Authority for Advance Ruling (hereinafter referred to as the "WBAAR") 2. The appellant, presently holding GSTIN No. 19AAACS0764L1Z3, had entered into a contract (hereinafter the Contract) with M/s. Kolkata Metro Rail Corporation Limited (hereinafter KMRCL) before inception of the West Bengal Goods and Services Tax Act, 2017/ the Central Goods and Services Tax Act, 2017, (hereinafter collectively referred to as "the GST Act") for "design, supply, installation, testing and commissioning" of the power supply and distribution system, third rail system and SCADA system for the entire line and depot of the Kolkat....
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.... such invoices. To avoid double taxation, the GST should, therefore be charged on the net amount that remains after such adjustment. 5. The Appellant has filed the instant Appeal against the above Advance Ruling with the prayer to set aside/modify the impugned Advance Ruling passed by the WBAAR or pass any such further or other orders as it may deem fit and proper in the facts and circumstances of the case, on the following grounds: a) No tax was leviable on the mobilization advance under the erstwhile Tax regime. b) The Appellant argued that the applicability of GST in the instant case would be governed by the transitional provision under section 142(10) of the GST Act which is: "Save as otherwise provided in ....
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....ded, the said deposit can be applied by the appellant as consideration. e) While the WBAAR had concurred with the view of the appellant that the mobilization advance was in the nature of earnest money deposit in the pre-GST regime, the WBAAR has conflicted its own view by treating the unadjusted amount as consideration immediately after implementation of GST on 01.07.2017. The appellant argues that the nature of earnest money deposit has not changed after implementation of GST and it will be covered under the express proviso to section 2(31) of GST Act, which excludes deposits from the definition of consideration unless it is adjusted against supplies. The appellant cited the decisions of the Customs Excise Service Tax Appell....
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....at the balance amount of Rs. 13,80,74,549/- from the advance received in the pre-GST period ought to be dealt with the provisions of the GST Act and the time of supply of service is guided by the provisions of section 13 of the GST Act. 8. The matter is examined and written and oral submissions made before us are considered. 9. The appellant argued that the mobilization advance received by them from KMRCL was in the form of deposit and it becomes a consideration only at the time of application of such deposit towards supply. However, we note that there are certain distinguishable features of both advance and deposit. For instance, an advance does not earn any return on it, whereas a deposit earns interest. An advance has t....
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....y GST on the gross amount as and when they utilize the amount towards provision of goods and services. 11. The appellants relied upon the decisions of the Tribunal in the case of Thermax Instrumentation Ltd. Vs. Commissioner of C. Ex., Pune-I [2016 (42) S.T.R. 19(Tri.-Mumbai)] = 2015 (12) TMI 1222 - CESTAT MUMBAI and GB Engineering Enterprises Pvt. Ltd. Vs. C.C.E., Tiruchirapalli [2017 (52) S.T.R. 313(Tri.-Chennai)] = 2017 (1) TMI 1674 - CESTAT CHENNAI, wherein the Ld. CESTAT had observed that the mobilization advance is like earnest money and argued that this nature has not changed after implementation of GST and hence it will be covered under the express proviso to section 2 (31) of the GST Act which excludes deposits from the de....
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.... of supply of services is applicable only for the considerations received post introduction of GST. The moot question in this case is whether the part of the mobilisation advance remaining unadjusted on 01.07.2017 will be chargeable under the GST Act. Immediately upon introduction of GST Act, that is with effect from the 1st day of July, 2017, the erstwhile Finance Act, 1994 and the notifications issued there under ceased to exist. In the instant matter the only applicable law is the GST Act, 2017. Accordingly, the time of supply of services is to be guided by section 13(2) of the GST Act. Hence, the remaining unadjusted amount of Rs. 13,80.74,549/- as on 01.07.2017 has to be construed as if it was credited into the account of the appellant....