Case Law Details
In re Aravali Polyart (P) Ltd. (GST AAAR Rajasthan)
Since the discussion under the agenda covers Group 99733, it is wholly applicable on the activity under consideration i.e. impugned Service . From perusal of point No. 1 of the Discussion , it is very much clear that the impugned Service is not classifiable under entry No. (iii) and (iv) of the Notification No. 11/2017- Central Tax (Rate) . Perusal of point No. 2 of the Discussion makes it clear that the rate under pre-revised entry No. 8 does not apply to “Licensing services for the right to use intellectual property and similar products other than IPR” . Since the impugned Service is also the “Licensing services for the right to use intellectual property and similar products other than IPR” , the rate under pre-revised entry No. 8 is not applicable on it. Since the rate under newly created entry No. (viia) is same as that of pre-revised entry No. (viii) , the impugned Service would not attract this rate and so would also not merit classification under the entry No. (viia) . Even, the description of the Service under the entry No. (viia) i.e. “Leasing or renting of Goods” by no stretch of imagination covers the impugned Service i.e. “Licensing services for the right to use intellectual property and similar products other than IPR” . At this stage it is crystal clear that neither entry No. (iii) nor (iv) nor (viia) would cover the impugned Service. Point No. 2 ibid clearly mentions that for this Service (Licensing services for the right to use intellectual property and similar products other than IPR) ,the GST council has carved out a new entry No. (viii) with the Service description “Leasing or rental services, with or without operator, other than (i), (ii), (iii), (iv), (v), (vi), (vii) and (viia) above” with rate of tax as 18%.
The Appellant has cited Rulings of the AAR, Haryana and AAR, Chhattisgarh in the cases of M/s Pioneers Partners, Bhiwani and M/s NMDC Limited, Chhattisgarh respectively in their favour. We find that in the case of M/s Pioneers Partners, Bhiwani, the Application was filed on 12.04.2018 and Ruling was given on 29.06.2018. The entry No. 17 ibid did not figure in the Notification at that time . There was neither sub-entry No. (viia) nor the revised sub entry No. (viii) . Upon perusal of the case of M/s NMDC Limited, Chhattisgarh, we find that the changes made in the entry No. 17 of the Notification i.e. substitution of old sub-entry No. (viii) by sub-entry Nos. (viia) and new entry No. (viii), vide Notification No. 27/2018-Central Tax (Rate), dated 31.12.2018, have not been taken into account by the AAR, Chhattisgarh while passing the Ruling . Needless to mention here that sub-entry No. (viia) is the entry to which the Appellant has staked its claim while the entry No. (viii) is the entry under which the Service is classifiable in view of the aforesaid para-19 . Further, as per Section 103 of the CGST Act, any Advance Ruling is binding on the Applicant who has sought it and on the concerned officer or the jurisdictional officer in respect of the Applicant. Accordingly AARs Ruling as cited above can’t be relied upon in the present case of the Appellant.
We also find that the Appellant themselves are not sure as to where the impugned Service would merit classification under entry No. 17 ibid. They are just pursuing each and every entry under entry No. 17 which prescribes the minimum rate of tax. In the Application filed before the AAR, Rajasthan, they maintained that the Service merits classification either under sub-entry No. (iii) or (iv) or pre-revised entry No.(viii). They have no idea as to where exactly the service would go. During personal hearing before the AAR, Rajasthan, in view of the Notification No. 27/2018-Central Tax (Rate) dated 31.12.2018, they submitted that the Service merits classification either under old entries Nos. (iii) or (iv) or under new entry No.(viia). They maintained the same position [i.e. classification under either sub-entry No. (iii) or (iv) or (viia)] in the Appeal filed before this forum. At this stage also they were having no idea as to where exactly the service would go. During personal hearing, they have contended for classification under the entry No. (viia) . All this proves that the Appellant is not sure as to which sub-entry of entry No. 17 is applicable in their case . They are pursuing each and every sub-entry which prescribes minimum rate of tax i.e. rate of tax equal to the rate on supply of soapstone and dolomite i.e. 5%. At this juncture , especially from the discussions under aforesaid Para-19 ,we have no hitch in determining that the impugned Service is covered under the revised entry No. (viii) of the Notification No. 11/2017- Central Tax (Rate) dated 28.06.2017 attracting GST @ 18 %.
FULL TEXT OF ORDER OF APPELLATE AUTHORITY OF ADVANCE RULING RAJASTHAN
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