TaxTMI 
TaxTMI 
2021 (1) TMI 498
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....Rate) dated 28.06.2017, the Central Tax Rate of 2.5% is payable on renewable energy devices and parts for their manufacture as specified therein and falling under Chapter 84 or 85. The relevant extract from the said Notification is given below for ready reference: SCHEDULE I-2.5% S. No. Chapter/Heading/ Subheading/Tariff item Description of goods 234. 84 or 85 Following renewable energy devices & parts for their manufacture: (a) Bio-gas plant (b) Solar power based devices (c) Solar power generating 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. 4. In view of similar rate of 2.5% tax applicable under State GST Law, total GST payable on above stated goods covered at Sl. No.234, would be 5% i.e. 2.5% CGST & 2.5% SGST. Similarly, in terms of Sl. No.234 of Schedule I to Notification No.1/2017-Integrated Tax (Rate) dated 28.06.2017, the rate of IGST applicable is 5% for the following goods. SCHEDULE I- 5% S. No. Chapter/Heading/ Subheading/ Tariff item Descr....
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.... S. Nos. 1 to 20. 6. Similar issue is also decided by Haryana Advance Ruling Authority in RE: M/s Boldrocchi India Pvt Ltd.[2019 (22) G.S.T.L. 135 (A.A.R.-GST)] vide Ruling dated 18.09.2018 = 2019 (2) TMI 1003 - AUTHORITY FOR ADVANCE RULING, HARYANA holding that "Pollution control device being supplied by the applicant for use in "waste to energy plants/devices" are classifiable under chapter Heading 8421 of the First Schedule to the Customs Tariff Act, 1975 and are covered by Sr. No.234 of Schedule I of Notification No.1/2017-Central Tax(Rate), dated 28.06.2017 & Notification No.35/2017-S.T.(Rate) dated 30.06.2017, chargeable to CGST @ 2.5% and SGST @ 2.5%." 7. Similar issue was also decided by Karnataka Appellate Authority for Advance Ruling in RE: Triveni Turbine Ltd. [2019 (23) G.S.T.L. 549 (App. A.A.R.-GST)] decided on 03.04.2019 = 2019 (4) TMI 383 - APPELLATE AUTHORITY FOR ADVANCE RULING, KARNATAKA holding that "The turbine generator set to be supplied by the Appellant to the buyer for use in waste-to-energy project is covered under Sl. No. 234 of Schedule I of Notification No. 1/2017-I.T. (Rate) dated 28.06.2017, attracting 5% levy. 8. In view of above backdrops, th....
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....cant is of the bonafide belief that such Waste to Energy Plant/Device viz. Agro Waste Thermic Fluid Heater or Biomass Fired Boilers to be supplied by the applicant would attract total GST of 5% [CGST @ 2.5% and SGST @ 2.5% or IGST @5%] as such goods are covered by Sl. No. 234 of Notification No.1/2017-CT (Rate) and as such the said goods are falling under Chapter 84 of the First Schedule to the Customs Tariff Act, 1975. RECORDS OF PERSONAL HEARING: 10. At the time of personal hearing held through Video Conferencing on 17.08.2020, the Authorised Representative of the applicant, Nilesh V Suchak, reiterated the facts as stated in the Application. 10.1 Further, the applicant has also submitted the additional submission dated 14.08.2020 at the time of personal hearing, as below: (i) The applicant manufactures "Waste to Energy Plants/Devices" which are known as Agro Waste Thermic Fluid Heater or Biomass Fired Boilers. This product is classified by them and the said classification is also accepted by the Excise Department without any objection till date since Excise Regime, under Tariff Item 8402 19 90. Tariff Item 8402 covers within its ambit Steam or other Vapour Gener....
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....quipment etc., which fall under Chapter 84, 85 and 94 and used in the initial setting up of renewable energy plants and devices including WTEP. (ix) The applicant also observed that other player in similar line, M/s Thermax Limited appears to have been clearing Waste to Energy Plant/Device Thermeon Boiler/Husk Briquette Fired/Unit + Parts under Invoice No.270100005249 dated 27-06-2019 charging 5% IGST based on the Sl. No. 234(e) of Notification No.1/2017-CT(Rate). (x) Similar issue is also decided by Haryana Advance Ruling Authority in RE: M/s Boldrocchi India Pvt Ltd. [2019 (22) G.S.T.L. 135 (A.A.R.-GST)] vide Ruling dated 18.09.2018 = 2019 (2) TMI 1003 - AUTHORITY FOR ADVANCE RULING, HARYANA holding that "Pollution control device being supplied by the applicant for use in "waste to energy plants/devices" are classifiable under chapter Heading 8421 of the First Schedule to the Customs Tariff Act, 1975 and are covered by Sr. No.234 of Schedule I of Notification No.1/2017-Central Tax (Rate), dated 28.06.2017 & Notification No.35/2017-S.T.(Rate) dated 30.06.2017, chargeable to CGST @ 2.5% and SGST @ 2.5%." (xi) Similar issue was also decided by Karnataka Ap....
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....ELT 534 = 2003 (3) TMI 144 - CEGAT, NEW DELHI, the Tribunal has observed that 'plant is an all-embracing term expressive of land, buildings and the equipment of the business conducted on the premises. In view of the above, the word 'plant' used in the entry would subsume all such other devices that are used in Waste to energy conversion plants. They further submitted that the benefit of this entry is on the entire waste to energy plant. (xiv) They also draw attention to other advance rulings pertaining to 'waste to energy plants/devices which gives the benefit to devices used in Waste to Energy Plants. Advance Ruling pronounced for M/s Mukund Ltd., reported at 2018 (18) GSTL 327 (A.AR.-GST) = 2018 (10) TMI 1243 - AUTHORITY FOR ADVANCE RULING, MAHARASHTRA, the question for consideration was 'whether the Electric Overhead Travelling Grab Crane to be supplied by the applicant to the buyer for use in the waste to energy project is covered under Sl. No. 234 of Schedule I of Notification No.1/2017 dated 28-06-2018-IGST (Rate) as 'Renewable energy devices and parts for the manufacture of waste to energy plants/devices' attracting 5% levy. The Ld. Authority held that EOT Grab Cran....
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.... of 5% [CGST 2.5% + SGST 2.5% or IGST at 5%] as such goods are covered by Entry at Sl. No.234 of Schedule I to Notification No.1/2017-CT (Rate) dated 28.06.2017 and corresponding notifications issued under State GST Law and under IGST Act. DISCUSSION & FINDINGS: 11. We have considered the submissions made by the applicant in their application for advance ruling as well as at the time of personal hearing. We also considered the issue involved, on which advance ruling is sought by the applicant, relevant facts & the applicant's interpretation of law. 11.1 At the outset, we would like to state that the provisions of both the CGST Act and the GGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the GGST Act. 12. In the instant case, the applicant seeks advance ruling in the matter of classification and rate of GST applicable on the parts (viz. Thermic Fluid Heater or Boiler) being supplied for setting up Waste to Energy Plant. 13. The applicant has submitted that the Agro Waste Thermic Fluid Heater is renewab....
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....d 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. 16. The vital condition for applicability of Sr. No. 234 of Notification No. 1/2017- Central Tax (Rate) is that the devices or parts thereof should be those listed in column 3 thereto. The applicant has claimed their device as 'Waste to Energy Plant/ Device'. The inescapable inference that can be drawn from the entry is that the energy should be inevitably created from waste. In other words the fuel used for obtaining energy should inevitably be 'waste'. The product has been presented by the applicant as 'Thermic Fluid Heater' in their written submission and during the course of personal hearing a brochure was submitted wherein the product has been categorised as 'Biomass Fired Boiler'. The applicant has not clearly specified the functionality of the product and it becomes very difficult to classify the product merely going by the generic interpretation of the name allotted to the product. The product Thermic Fluid Heater/ Boiler gets classified under Chapter 8402 19 90 in terms of the d....
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.... 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' and asking someone the classification of the pet by referring to its name rather than the technical characteristics. Such analysis by merely referring to a name would lead to wrong conclusions. To avoid such erroneous conclusions, we have no option but to refer to the technical specifications of the products of the applicant as available on their official website. Reference to such technical specifications leads to the inescapable inference that the fuel used for generation of energy is not 'waste' but conventional energy generating elements. Resultantly, we find that the rates as specified at Sr. No. 234 of Notification No. 1/2017-Central Tax (Rate) will not be applicable to the product under consideration. 17. Coming to the applicable rate of tax, it is to mention th....
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....ergy plants / devices (f) Solar lantern / solar lamp (g) Ocean waves/tidal waves energy devices/plant (h) Photo voltaic cells, whether or not assembled in modules or made up into panels 11.2 The notification specifically applies only the goods falling under chapters 84, 85 and 94 of the Tariff. Therefore, this concession would be available only to such machinery, equipment etc., which fall under Chapter 84, 85 and 94 and used in the initial setting up of renewable energy plants and devices including WTEP. This entry does not cover goods falling under other chapters, say a transport vehicle falling under Chapter 87 that may be used for movement of waste to WTEP. 11.3 Another related doubt raised is as to how would a supplier satisfy himself that goods falling under Chapter 84, 85 and 94, say a turbine or a boiler, required in a WTEP, would be used in the WTEP. In this context, it is clarified that GST is to be self-assessed by a taxpayer. Therefore, he needs to satisfy himself with the requisite document from a buyer such as supply contracts/order for WTEP from the concerned authorities before supplying goods claiming concession under sai....
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