2019 (2) TMI 1002 – AUTHORITY FOR ADVANCE RULING, HARYANA – TMI – Levy of GST – Classification of supply – construction and guaranteed lease – Private Entrepreneurs Godowns built under the PEG-2008 scheme of the FCI and leased out to the Nodal Agency (UPSWC) on ‘Lease and services basis’ for the storage of FCl’s food grain stocks (Wheat) – Mixed Supply – Held that:- Under the scheme for construction of godowns for FCl-storage requirement through private entrepreneurs2008 (known as PEG-2008 scheme), the Haryana State Co-operative Supply and Marketing Federation Ltd. (Hafed) was notified as Nodal Agency for construction of godowns in the State of Haryana – The Haryana State Cooperative Supply and Marketing Federation Ltd. (HAFED) was notified as nodal agency for construction of godowns in the State of Haryana under the said PEG-2008 Scheme of the Central Government/ FCI.
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In case of Lease only basis, godowns have been built by the Private Investor and have been leased out to the No
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ion no. 46/ST-2, dated 30.06.2017 – Since, as per the copy of contract/agreement with Hafed, the applicant is providing both the services, i.e., the support services in relation to agricultural produce as well as Real Estate Services in terms of SAC 997212, and since both these services are capable of being provided independent of each other, these cannot be understood to be naturally bundled and supplied conjointly in the ordinary course of business. Therefore, the applicant has/is providing ‘Mixed Supply’ as per section 2 (74) of the CGST/HGST Act, 2017 and attract tax rate of that particular supply which attracts the highest rate of tax in terms of section 8 (b) of the Act ibid. – AAR No. HAR/HAAR/R/2018-19/13 In Application No.: 13/2018-19 Dated:- 11-9-2018 – SANGEETA KARMAKAR AND VIJAY KUMAR SINGH, MEMBER Present for the Applicant: Dr. Subash C. Batra, GM (Warehousing Operations) . Factual Background As Per Applicant 1. A Scheme known as SCHEME FOR CONSTRUCTION OF GODOWNS FOR FCI
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iry, were issued Letter of Allotment for Construction of godowns for specified capacity at one location (Elenabad) under the said PEG-2008 Scheme of the Govt. of India at agreed rates of rent per quintal per month. 5. M/s. Awla Infra accordingly constructed storage capacity at one location (Elenabad) under the said scheme in terms of the respective Letter of Allotment. Agreements were signed between the Private Investor (M/s. Awla Infra) and the Nodal Agency (HAFED) and between the Nodal Agency (HAFED) and the FCI. This is a tripartite arrangement where one agreement has been executed between the private investor and the nodal agency and the other agreement has been executed between the nodal agency and the FCI. Copy of the agreement between the Private Investor and the HAFED is placed on record at Annexure-3. 6. Under the said PEG-2008 Scheme, there are two types of PEGs – (i) On Lease only basis and (ii) On Lease and Services basis. In case of Lease only basis, godowns have been buil
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er rates applicable from time to time. Service Tax as applicable can be claimed by the lessor along with the monthly rent provided the lessor furnishes an invoice for the same containing valid service tax registration number. 9. In terms of the agreement between the nodal agency and the FCI, Private Investors will be responsible for the payment of service tax as applicable on storage charges of food grains and claim the same from FCI through the Nodal Agency. The relevant clause is understood to be as under:- 9.1 – For godowns hired on lease & services basis: Storage charges for godowns constructed for lease & services by Private Investors and supervised by the Nodal Agency shall be reimbursed to the Nodal Agency at the monthly rates/qtl. as approved by SLC/HLC for lease & services. FCI shall also pay to the Nodal Agency, 15% of the monthly rates/qtl. as approved by SLC/HLC as supervision charges on submission of separate bills. There shall be annual increase of 33% of perc
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licability of GST as per which the present case falls under Sr. No. 1 – Agreements of FCI with nodal agencies (where Private investors construct godowns). According to this letter dated 07.09.2017 of the FCI, in case of both type of scheme with or without services the agreement between FCI and Nodal agencies is in the nature of Storage and Warehousing services and that Storage and Warehousing services for agriculture produce, food grains including Pulses, Rice etc. is fully exempted under GST. Copy of this letter dated 07.09.2017 of the FCI is placed on record as Annexure-4. Question(s) on which advance ruling is required Whether GST is exempt or is applicable on the Private Entrepreneurs Godowns built under the PEG-2008 scheme of the FCI and leased out to the Nodal Agency (UPSWC) on Lease and services basis for the storage of FCl s food grain stocks (Wheat) . Applicant s interpretation of law and/or facts, in respect of the aforesaid question(s) 12. Under the Service Tax regime, Distr
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ST/HGST Act. 2017 13. The Deputy Excise & Taxation Commissioner, Sirsa being the jurisdictional officer had submitted his comments as required under section 98 (1) of the CGST/HGST Act, 2017 as under:- 13.1 That as per provisions of section 7 of Haryana GST Act/CGST Act and Schedule Il Sr. No.5 appended to section 7, the renting/leasing of immovable property is supply of services. Since the applicant being the owner of immovable property, supplies the services for commercial purposes to Hafed, thus the amount received on account of Rent/lease is taxable being supply of taxable services falling under section 7 of HGST Act, 2017. 13.2 It is further pointed out that as per Notification No.46/ST-2 dated 30th June 2017 Haryana Goods and Services Tax Act (Rate), Sr.No.24 and Notification No. 47/ST-2 dated 30the June 2017 Haryana Goods and Services Tax Act (Rate) Sr.No.54, the GST Rate on loading, unloading, packing, shortage or warehousing of agriculture produce is Nil but renting of imm
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f supply as defined under section 7 of HGST/CGST Act, 2017. 13.4 Further it will not be out of place to mention that the agreement between the owner of the godowns and HAFED is having commercial terms and conditions which itself shows that the godowns have been given on rent or lease for commercial purposes and not for supporting cultivation of plant. 13.5 Explanation F. No.354/173/2017-TRU dated 15-11-2017 appended by the present applicant in support of his claim does not squarely cover the case of the present applicant as in the said explanation only the term Market Produce is defined and in the end of the said definition any produce out of cultivation of plants and rearing of all life forms of animals, except the rearing of horses, for food, fiber, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketab
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n had given additional submissions which were taken on record. 15. It had been submitted that as Nodal Agency, (HAFED)/ FCI have refused /are refusing to pay the GST to the Private Investor on the plea that this arrangement with the Private Investor falls under the classification of Storage or Warehousing of Agricultural Produce and Rice and is therefore, exempt from the payment of GST. For them, both sides it is the Central Govt. – one side it is the GST Dept. and the other side it is the FCI and we as private investor are only intermediary and as intermediary we cannot be put to any harassment or made to suffer for the reason that there is any ambiguity in the rules or the activity involved is open to different interpretation. 16. After detailed discussions the application was admitted being covered by clauses (a) & (b) of section 97 (2) of the CGST/HGST Act 2017. As regard merits, the decision was reserved which is being released today. Discussion and finding of the authority 17
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iry and on being successful at the tender enquiry, were issued Letter of Allotment for Construction of godowns for specified capacity at one location (Elenabad) under the said PEG-2008 Scheme of the Govt. of India at agreed rates of rent per quintal per month. 21. Under the said PEG-2008 Scheme, there are two types of PEGS – (i) On Lease only basis and (ii) On Lease and Services basis. 21.1 In case of Lease only basis, godowns have been built by the Private Investor and have been leased out to the Nodal Agency which manages storage, preservation and warehousing of the stocks of the FCI stored therein. 21.2 In case of Lease and Services basis, godowns have been built by the Private Investor and have been leased out to the Nodal Agency and the storage, preservation and warehousing of the stocks of the FCI stored therein is managed by the Private Investor under the supervision of the Nodal Agency. 21.3 The applicant s case, as per its agreement with the Nodal Agency, falls under the PEG s
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have only stored stock of wheat for Hafed on behalf of FCI and no other commodity other than wheat has been in storage in their PEG. However, as per clause 19 of the contract agreement between Hafed and the applicant it is clearly mentioned that the Lessee, though hiring these spaces for keeping FCI and /or its own food stocks, however, Lessee will be free to use these spaces for keeping stocks belonging to any other party. 24. The relevant notifications for the purpose of understanding the nature of the services provided by the applicant are as per Sr. No. 24 (e) of notification no. 11 /2017-Central Tax (Rate), dated 28.06.2017 and Sr. No. 54 (e) of notification no. 12/ 2017-Central Tax (Rate), dated 28.06.2017 read with the corresponding State Tax notification No. 46/ST-2 & 47/ST-2 both dated 30.06.2017. The SAC 9972 is also relevant to determine the true classification of the services provided by the applicant. 25. The scope of entry 24 (e) and 54 (e) in respective notification
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ng own or leased non-residential property. Such services attract 18% GST as per Sr. no. 16 of notification no. 11/2017-Central Tax (Rate), dated 28.06.2017 and its corresponding State tax notification no. 46/ST-2, dated 30.06.2017. 27. Since, as per the copy of contract/agreement with Hafed, the applicant is providing both the services, i.e., the support services in relation to agricultural produce as well as Real Estate Services in terms of SAC 997212, and since both these services are capable of being provided independent of each other, these cannot be understood to be naturally bundled and supplied conjointly in the ordinary course of business. Therefore, the applicant has/is providing Mixed Supply as per section 2 (74) of the CGST/HGST Act, 2017 and attract tax rate of that particular supply which attracts the highest rate of tax in terms of section 8 (b) of the Act ibid. Advance ruling under section 98 of the CGST/HGST Act 2017 In the backdrop of above discussions and findings the
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