TaxTMI 
TaxTMI 
2022 (5) TMI 1356
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....id order passed on 12/12/2021. Therefore, this office served the impugned notice (Notice bearing no. GST/ARA/2021-22/13-19 dated 15th February 2022) on the applicant and the case was fixed for hearing on 15/3/2022. The applicant requested for extension of the hearing date by one more month. Hence, case was fixed for final hearing again on 19/4/2022. The impugned notice (which is the basis for the present hearing) issued to the applicant, contains all the facts, the relevant legal provisions and the reasons for issue of the said notice, reads as under: Notice (Under Section 102 & 104 of the Central Goods and Services Tax Act/ Maharashtra Goods and Services Tax Act, 2017) It is noticed that the Advance Ruling Order was passed on 22/12/2021 as referred to above, in the present case. The said application was filed under section 97 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as "the CGST Act and MGST Act" respectively] by M/s. MH Ecolife E-Mobility Pvt. Ltd., the applicant, seeking an advance ruling in respect of the certain question and as per the said order dated 22/12/2021, answers were give....
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....ies 8.1 Representations have been received seeking clarification regarding eligibility of the service of renting of vechiles vehicles to State Transport Undertakings (STUs) and Local Authorities for exemption from GST under notification No. 12/2017-Central Tax (Rate) dated 28.06.2017. SI. No. 22 of this notification exempts "services by way of giving on hire (a) to a state transport undertaking, a motor vehicle meant to carry more than twelve passengers; or (aa) to a local authority, an Electrically Operate vehicle meant to carry more than twelve passengers". 8.2 This issue has arisen in the wake of ruling issued by an Authority for Advance Ruling that the entry at SI. No. 22 of notification No. 12/2017-Central Tax (Rate) exempts services by way of giving on hire vehicles to a State Transport Undertaking or a local authority and not renting of vehicles to them. The ruling referred to certain case laws pertaining to erstwhile positive list based service tax regime. 8.3 It is relevant to note in this context that Schedule ii of CGST Act, 2017 declares supply of any goods without transfer of title as supply of service even if right to use is transferre....
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....r the appellant by fraud or suppression of material facts or misrepresentation of facts it may, by order, declare such ruling to be void ab-initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the applicant or the appellant as if such advance ruling had never been made: Provided that no order shall be passed under this sub-section unless an opportunity of being heard has been given to the applicant or the appellant. Explanation.-The period beginning with the date of such advance ruling and ending with the date of order under this sub-section shall be excluded while computing the period specified in sub-sections (2) and (10) of section 73 or sub-sections (2) and (10) of section 74. (2) A copy of the order made under sub-section (1) shall be sent to the applicant, the concerned officer and the jurisdictional officer. Thus the applicant and the concerned jurisdiction officer are hereby directed to submit their respective written submissions (on or before the date fixed for hearing) and attend the hearing on the present Notice on 15/03/2022. The applicant is directed to show cause as to why the decision give....
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...., 2017, to determine the appropriate classification of these services along with taxability thereof. The said application was filed in Form GST ARA 01 and was accompanied by: • Annexure A which set out the "Statement of relevant facts having a bearing on the question raised"; and • Annexure B which set out the "Statement containing the applicant's interpretation of law and/or facts, as the case may be, in respect of the aforesaid question(s)" * The Ruling in respect of the Company's Application was delivered vide Order doted 22.12.2021 which ruled that the services of the Company were classifiable under SI. No. 10(i) of the Notification No. 11/2017-Central Tax (Rate) dated 28.05.2017 ("Rate Notification") which covered the services of "Renting of any motor vehicle designed to carry passengers where the cost of fuel is included in the consideration charged from the service recipient.". Further, it was held that (SI. No. 22 of) Notification No. 12/2017-Central Tax Rate dated 28.06.2017 was not applicable. The operative portion of the order is reproduced below: "5.2 In the case of transportation of passengers, the recipient of servic....
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....as to why the decision given in the vide Order dated 22.12.2021 should not be withdrawn and alleges as below: The hearing in the present case is concluded on 7/12/2021. During the course of hearing, above circular dated 6/10/2021 was not pointed out. It is noticed that decision in the present case is delivered without considering the said circular. It is, therefore, necessary to reconsider the decision given in the present case, particularly in the light of the provisions in the said Trade Circular. This might lead to different answers than the answers already given to the questions asked in the present case. It is, therefore, necessary to given a fresh hearing in the present case. In this respect, the applicant is requested to refer to following provisions of the GST Act." * The relevant portions of Sections 102 and 104 of the CGST Act are reproduced below for ease of reference: "SECTION 102. Rectification of advance ruling. - The Authority or the Appellate Authority or the National Appellate Authority may amend any order passed by it under section 98 or section 101 or section 101C, respectively, so as to rectify any error apparent on the face of the rec....
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.... Authority aware of the Circular. Therefore, and since the Company has at all times clearly set out the applicable facts of, its transaction with NMMT as also the nature of activities undertaken, no facts have been either suppressed or misrepresented by the Company. * In any case, and for sake of argumentation, even if the Circular is considered to be akin to "fact", mere omission to mention the Circular before the Authority cannot be termed to be "suppression or misrepresentation of fact". It needs to be appreciated that the Circular is not something which is exclusively within the knowledge of the Company and the Departmental representative does not have access to such information. Hence, non-mentioning of a Circular which is available in public domain and non-mentioning of the circular cannot amount to suppression of facts by any stretch of imagination. Reliance in this regard is placed on various judgments of the Hon'ble Supreme Court and High Courts which while interpreting the provisions of Section 11A of the Central Excise Act, 1944, has eloquently set out the scope of the words "suppression" and "misrepresentation" of facts. * Continental Foundation Jo....
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....ell settled principle in law that under the garb of rectification of mistake proceedings, the original order should not be obliterated and substituted, which would effectively amount to "review" of the order earlier passed. Reliance is inter alia placed on the judgment of the Hon`ble Supreme Court: * Thungabhadra Industries Ltd vs The Government Of Andhra Pradesh 1964 5 SCR 171: "There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face and there could reasonably be no two opinions entertained about it a clear case of error apparent on the face of the record would be made out. Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tiruymale (1960 1 SCR 890] "An error which has to be established by a long drawn process of reasoning on p....
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....ection 102 of the CGST Act and would necessarily need to be taken up in appeal proceedings. Conclusion * In view of the above, it is established that: * There is no suppression or misrepresentation of facts by the Company to render the captioned Ruling as being void ab-initio in terms of Section 104 of the CGST Act. * The non-referral of the Circular and its applicability to the facts of the Company cannot be sought to be rectified under Section 102 as the same would require a long drawn process of arguments and submissions. * We request your goodself to accept the above and refrain from altering the view pronounced in the captioned Ruling. * The Company reserves all of its legal rights, including the right to make submissions on the applicability / non-applicability of the Circular to its facts and right of personal hearing, in case this Authority seeks to adopt a view other than that set out in the captioned Ruling. * Without prejudice to the above, in case the Authority seeks to adopt a view other than that set out in the captioned ruling, the Authority also needs to give heed to the consequential situation which may....
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....g, a motor vehicle meant to carry more than twelve passengers; or (aa) to a local authority, an Electrically Operate vehicle meant to carry more than twelve passengers". The said Circular has clarified that the expression "giving on hire" in SI. No. 22 of the Notification No. 12/2017-CT (Rate) includes renting of vehicles. Accordingly, services where the said vehicles are rented or given on hire to State Transport Undertakings or Local Authorities are eligible for the said exemption irrespective of whether such vehicles are run on routes, timings as decided by the State Transport Undertakings or Local Authorities and under effective control of State Transport Undertakings or Local Authorities which determines the rules of operation or plying of vehicles." 5.2 The final hearing in respect of the above mentioned application of the applicant was concluded on 7/12/2021. During the course of hearing, the above circular dated 6/10/2021 was not pointed out by the applicant. It is noticed that the decision in the present case is delivered without considering the said circular. It is, therefore, necessary to rectify the decision given in the present case, particularly in the light of ....
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....ection (1) shall be sent to the applicant, the concerned officer and the jurisdictional officer. 5.3 Thus in view of powers under above provisions, this authority is empowered to take decision as per law, after affording opportunity of hearing to the applicant. In response to the notice for the hearing to be held on 15.03.2022, the applicant sought further date of one month which was granted. Hence, sufficient time has been granted to the applicant to put forth their case. The applicant has failed to prove how the provisions of the said circular (cited supra) are not applicable to the facts of the case of the applicant. In fact, the applicant has not argued the case on merits in view of the provisions of the Circular mentioned above and had also not brought out the fact that the said Circular was in existence during the earlier hearing which led to the issuance of Order No. 60/2020-21/B-116 dated 21/12/2021. The arguments were made by the Authorised representatives only on non applicability of Sections 102 and 104 to their case which are not at all acceptable in view of the relevant GST provisions. 5.4 In their reply, the applicant has relied upon certain case laws. The case ....