AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 918
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....Goods and Services Act, 2017 ["CGST"] Act or in any view would be covered by Serial No.8 of Notification No.9 of 2017, dated 28.06.2017 and thus any levy of tax on the petitioner would fall foul of Article 265 of the Constitution of India. 3. Before proceeding further, it may be relevant very briefly to set out the activity undertaken by the petitioner as stated in the affidavit filed in support of the writ petition: "6. The raw material (Zircon Sand) is received by NFC, Hyderabad from M/s.Indian Rare Earths Limited. It is then processed by NFC into frit powder by NFC and sent to the petitioner at Tuticorin, Tamil Nadu for converting into Zirconium Sponge. The Zirconium Sponge is of Nuclear Grade and undergoes several stages of production at NFC, Hyderabad before it is finally converted into Zirconium Tubes. Then, the uranium fuel pellets processed and assembled at NFC are inserted into the Zirconium tubes and converted into nuclear fuel bundles and sent to the various Nuclear Power Reactor Sites of the Nuclear Power Corporation of India Limited across the country." 4. Case of the petitioner: 4.1. The Zirconium Complex is part of the Government of India and does n....
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....sment, wherein, it has been recorded that the Zirconium Complex, Pazhayakayal situated at Tuticorin is a processing plant of a Nuclear Fuel Complex, NFC. The relevant portion of the order(s) of assessment is extracted hereunder: "Zirconium Complex (ZC), Pazhayakayal situated at Tuticorin, Tamil Nadu is one of the processing plant at Nuclear Fuel Complex (NFC), Hyderbad. The Nuclear Fuel Complex is an industrial organization which comes under Department of atomic energy Commissioner. Zirconium Sponge which is produced at this unit are transferred to Nuclear Fuel Complex, Hyderbad for further processing and the Zirconium Sponge is converted into Zirconium Tubes." 4.4. It may also be relevant to note that the impugned order(s) of assessment has also proceeded to observe that the petitioner is a unit of the Government of India under the control of Nuclear Fuel Complex, Hyderabad: "The unit is a Government of India Unit under the control of Nuclear Fuel Complex, Hyderabad. Zirconium Complex (ZC) (Pazhayakayal), Tuticorin is a plant coming under the NFC, Hyderabad. The fabrication of nuclear fuel involves two processes viz., i) production of nuclear fuel and producti....
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....c Energy (DAE), requesting to exempt levy of GST on lease of nuclear fuel and heavy water by the DAE to NPCIL (Nuclear Power Corporation of India Limited). He stated that the DAE had justified the proposal for exemption on the ground that the DAE and the NPCIL were related persons as per the definition of "related persons" in Explanation to Section 15 of the CGST Act, 20 17 as one of them, directly or indirectly, controlled the other. Therefore, supply of goods and services, even if made without consideration, when made in the course or furtherance of the business, shall attract GST. He further explained that the DAE, being a Government Department was not a tax payer under the GST Act, and the NPClL, being an assessee under the GST Act, would be required to pay GST on reverse charge basis and file returns under GSTR- 1, GSTR-2 and GSTR-3, and therefore, would capture sensitive details regarding strategic materials used in unsafeguarded reactors, which was a matter of concern to the DAE. He further stated that in the pre-GST regime, heavy water and nuclear fuel did not attract Central Excise Duty vide Serial No. 94 of Tariff Notification No. l2/20 12-CE. He informed that the Fitment....
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....by or under any Central Act, State Act or Provincial Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013; (h) any body corporate incorporated by or under the laws of a country outside India; (i) a co-operative society registered under any law relating to cooperative societies; (j) a local authority; (k) Central Government or a State Government; (l) society as defined under the Societies Registration Act, 1860; (m) trust; and (n) every artificial juridical person, not falling within any of the above;" 4.10. It was submitted by the learned Senior Counsel for the petitioner that assuming without conceeding that the activity does gets covered under the provisions of the GST Act, in any view, Notification No.9 of 2017, dated 28.06.2017, in particular Entry 8 provides that services provided by the Central Government to another Central Government, State Government, Union Territory or Local Authority would be entitled to exemption. The relevant entry is extracted hereunder: "Notification No.9/2017-Integrated Tax (Rate) New Delhi, the 28th June, 2017 .......... Table Sl.No. Chapter, Section, H....
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....the learned counsel for the petitioner that it is trite law that tax proceedings are not adverserial in nature and the object of an assessment is to arrive at the correct tax liability and even assuming that the petitioner had not made a claim for exemption which it was otherwise entitled to by mistake a duty is cast on the Assessing Authority to extend the benefit of exemption. 7. This Court is of the view that there is merit in the submission of the learned Counsel for the petitioner that notification No.9 of 2017, dated 28.06.2017 would get attracted once an assessee or a taxable person is able to demonstrate that it is a service rendered by Central Government to another Central Government or a State Government. The material which has now been placed before this Court is relevant to determine if the petitioner is a unit of NFC complex / which in turn is a part of the Department of Atomic Energy coming under the Central Government. The above aspect would in turn have relevance in determining the applicability of Notification No.9 of 2017, dated 28.06.2017. The Assessing Authority ought to have examined the applicability of Notification No.9 of 2017, dated 28.06.2017 before mak....