TaxTMI 
TaxTMI 
2022 (2) TMI 1046
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, the expression 'GST Act' would mean CGST Act and MGST Act. 2. FACTS AND CONTENTION - AS PER THE APPLICANT The submissions made by M/s Sterlite Technologies Limited, the applicant are as under:- 2.1. Applicant manufactures telecom products such as optic fiber, optic fiber cable, etc.; lays the optic fiber cables (either underground or hung overhead) to create a network, sets up control centers, installs equipment necessary to operate network for desired purpose, commissions network and any other ancillary activity that may be necessary for creation of network infrastructure for its customers in telecom industry by way of 'turnkey contracts'. 2.2. To establish countrywide IP/MPLS based multiprotocol converged network, Naval Communication Network (collectively referred as "network"), as core infrastructure for supporting strategic and operational needs, the Indian Navy has entrusted the setting up of these networks to Bharat Sanchor Nigam Limited ("BSNL"), which in-turn has contracted th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r works All buildings should be constructed with RCC (Reinforced Concrete Construction) Partition walls (non-load bearing walls) may be of high quality bricks. The construction would be governed by the latest standards Indian Standards in vogue for construction of buildings. The minimum distance between this complex and the data center building etc should be governed by the TIA 942 standards. The bidder is to ensure that standards followed for construction of buildings, electrical fittings, plumbing etc should also meet the minimum specifications published by BSNL. On completion of construction, the buildings would have to be handed over to the MES/CPWD. 2. Along with the building following additional infrastructure for the complex is also required:- 2.1 Approach road to building within Naval Station, Provision of security lights around the complex, Security Cameras inside and outside building, Guard post including rest room, Automatic Barrier at main/emergency gates. Access Control Mechanism at entrances to the building, Smoke detector, provisioning of small firefighting appliances, PA system. 2.2 Underground electrical wiring will be done as per the requireme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....k' would qualify as a composite supply of 'works contract' as defined under Section 2(119) of the CGST Act and activities of the Applicant were covered by sub-clause (ii) of Entry No. 3 of rate Notification and attract GST at the rate of 18%. 2.9 Post issuance of Order dated 28.03.2019 the rate Notification was amended vide Notification No. 3/2019 C.T.(R) dated 29.03.2019 ("Amendment Notification") whereby Entry No. 3 (ii) as referred in aforesaid Order was omitted with effect from April 01, 2019. Hence, with the said amendment, ratio of Order relating to applicability of tax rate to subject supplies under the contract was rendered redundant with effect from 01.04.2019. 2.10. Hence, Applicant's activities necessitate an analysis qua other relevant entries of rate Notification and Entry No. 3 (vi)(a) of the rate Notification appears to appropriately cover its activities. B. Statement containing the Applicant's interpretation of law and /or facts 2.11 The relevant Entry No. 3(vi)(a) of the rate Notification, is reproduced as under:- SL.NO. CHAPTER SECTION OR HEADING DESCRIPTION OF SERVICE RATE % CONDITION 3 Heading 9954 (Constructi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2.14 In view of above, anybody established by Government with 90% or more participation qualifies as a Government Entity. In this regard, the network is to be built for BSNL which is set up by Central Government and the Central Government continues to hold 100% equity in BSNL. Hence, BSNL fulfills the necessary criteria set out under clause 4(x) of the Explanation of the said rate Notification and qualifies as a Government Entity. Consequently, applicant's activities fulfill the condition of 'making supply to Government Entity' as in Entry No. 3(vi) of the rate Notification. ACTIVITIES UNDERTAKEN BY THE APPLICANT RESULT IN CREATION OF 'ORIGINAL WORKS' 2.15 The Applicant submits that the term 'original works' as referred in Entry No. 3(vi)(a) is neither defined under rate Notification nor under the CGST Act. However, Notification No. 12/2017 C.T. (R) dated June 28, 2017 ("Notification No. 12/2017") defines the term 'original works'. Relevant portion of the said exemption notification is reproduced below: 2. Definitions. - For the purposes of this notification, unless the context otherwise requires, - (zs) "original works....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2/Type 3 Infrastructure, Telepresence equipment, Networking Equipment, Optic fibre Equipment, Staging area and other operational and administrative buildings. The scope of work includes civil construction, water supply, sanitary and plumbing, electrical installation, landscaping, air conditioning, roads, and firefgihting and interior works All the buildings should be constructed with RCC (Reinforced Concrete Construction) Partition walls (non load bearing walls) may be of high-quality bricks. 2. Along with the building the following additional infrastructure for the complex would also be required: - 2.1 Approach road to building within Naval Station 2.5 Underground electrical wiring will be done as per the requirement 3. In addition, a power room to house the silent generators also needs to be constructed. 2.20 Applicant therefore submits that, activities to be undertaken by it are in the nature of erection, commissioning, installation of structure, machinery, construction etc. and therefore duly covered by the term 'original works' as referred to under Entry No. 3(vi)(a) of rate Notification. 2.21 Without prejudice to the above, refer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2.24 The Applicant also submits that as the Entry no. 3(vi)(a) specifically covers activities of Applicant, the said activities ought to assessed at the rate of tax as specified for the said Entry No. 3(vi)(a). Reliance in this regard is placed on the decision of Hon'ble High Court of Gauhati in case of CCE v. Jellalpore Tea Estate, [2011 (268) E.L.T. 14 (Gau.)] wherein the Hon'ble Court held that "what is required to be done in a manner prescribed by law, ought to be done in that manner only or not at all.". Reliance in this regard is also placed on the decision of the larger Bench of Hon'ble Tribunal in the case of M/s. Avis Electronics Pvt. Ltd., [2000 (117) E.L.T. 571 (Tri.-LB)] 03. CONTENTION -AS PER THE CONCERNED OFFICER: The jurisdictional officer has not made any submissions in the matter. 04. HEARING 4.1 Preliminary hearing in the matter was held on 25.02.2020. Shri. Rohit Jain, Advocate, Shri. Nitin Garg and Shri. Vivek Baj, CA appeared, and requested for admission of the application. Jurisdictional Officer Shri. Sunil Thombare, STO, AUR-VAT-C-013, Aurangabad also appeared. 4.2 The application was admitted and online final hearing held....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... all the equipment in all the data centers, near line data centers, disaster recovery station, satellite data center, etc. with each other to enable information exchange across the network as desired. 5.5 The applicant has submitted that it had previously approached for advance ruing in the same matter and that this Authority had ruled that (i). The supply of goods or services for 'setting up of network' would qualify as a composite supply of 'works contract' as defined under Section 2 (119) of the CGST Act and (ii) Activities of the Applicant were covered by sub-clause (ii) of Entry No. 3 of rate Notification and attracted GST at the rate of 18%. 5.6 Since, the activities discussed in above mentioned order and the activities under the present application for which applicant has sought Advance Ruling are one and the same and further, since there is no additional information/submission provided by the applicant in the present application, there is no point to deviate from the finding given in the earlier determination, since neither, any appeal seems to have been filed nor any further order is received in the said earlier matter. 5.7 The ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-do-- (viii) Composite supply of works contract...... .... .... (ix) Composite supply of works contract....... provided by a sub-contractor to the main contractor providing services specified in item (iii) or item (vi) above to the Central Government, State Government, Union territory, a local authority, a Governmental Authority or a Government Entity. 6 Provided that where the services are supplied to a Government Entity, they should have been procured by the said entity in relation to a work entrusted to it by the Central Government, State Government, Union territory or local authority, as the case may be. (x) Composite supply of works contract.... provided by a sub-contractor to the main contractor providing services specified in item (vii) above.... .... --do-- (xi) Services by way of.......... .... .......... (xii) Construction services other than (i), (ii), (iii), (iv), (v), (vi), (vii), (viii),(ix), (x)and (xi) above. 9 - 5.10 Vide Notification No 3/2019-CT(Rate), dated 29th March, 2019, Serial number 3, item (ii) was omitted and further amendments were made in Sr. No 3(i), 3 (iv), 3 (v), 3 (vi) and 3 (xii) and therefore, amend....