Page 157 - GSTL_14th May 2020_Vol 36_Part 2

2020 ] IN RE : NATIONAL DAIRY DEVELOPMENT BOARD 259
12/2017-Central Tax (Rate) and corresponding State Tax Notifica-
tion, if it qualifies as ‘Governmental authority’.
5. Aggrieved by the aforesaid advance ruling, the appellant has filed
the present appeal.
6.1 The appellant has submitted that the Advance Ruling is issued with
‘if condition i.e. the appellant would qualify as ‘Governmental Authority’ if it
fulfils the condition of ninety per cent. or more participation by way of equity or
control’, and such conditional ruling or ruling with ‘if’ condition is not proper
and against legal provisions.
6.2 It has been submitted that the condition put forth in the ruling is
limited to the fact whether the appellant fulfils the condition of ninety per cent.
or more participation by way of equity or control. It has been submitted that the
ruling has accepted the fact that the Appellant fulfils the criteria of carrying out
any function as entrusted to a municipality under Article 243W of the Constitu-
tion. The appellant submitted that the appeal is preferred in order to determine
requirement of fulfillment of condition of ninety per cent. or more participation
by way of equity or control, in light of available facts.
7.1 The appellant has submitted that the GAAR has held that the deci-
sion in the case of Shapoorji Paloonji & Company Ltd. v. CCE, Patna is not binding
only because the said judgment has been challenged before the Hon’ble Supreme
Court [2017 (52) S.T.R. J203 (S.C.)] and hence the same may not be considered as
final. In this regard, the appellant relied upon the decision of Hon’ble Madras
High Court in the case of Dr. T. Rajakumari and Others vide W.P. No. 39022 and
36735 of 2015 wherein Hon’ble High Court stated that till the time decision of
High Court is struck down by the Supreme Court or the Supreme Court stays the
operation of the judgment, the decision of High Court would be applicable.
7.2 The appellant has submitted that the word used in the definition is
‘or’ between (i) & (ii) and both are separated by way of semi colons, which means
the condition of 90% or more participation by way of equity or control, to carry
out any function entrusted to municipality under Article 243W would be appli-
cable to body which is established by the Government. Therefore, the
board/body set up by an Act of Parliament is independent and is not bound by
above condition. The Judgment of Hon’ble High Court of Patna in the case of
Shapoorji Paloonji & Company Ltd. v. CCE, Patna has been relied upon in this re-
gard. The Advance Ruling issued by the Uttarakhand Advance Ruling Authority
in the case of NHPC Limited [2018-VIL-284-AAR = 2018 (19) G.S.T.L. 349 (A.A.R. -
GST)] has also been referred. The appellant also referred to judgment of Hon’ble
High Court of Punjab & Haryana in the case of Rajinder Singh v. Kultar Singh [ILR
(1979) 2 P&H 486 (FB)] and judgment of Hon’ble Supreme Court in the case of
State of Gujarat v. Reliance Industries Limited [2017-VIL-34-SC].
8.1 The appellant has submitted that in the Advance Ruling, it is stated
that the appellant has not provided the details/evidence as to whether they ful-
fill the condition or not and if the appellant fulfills the condition, they would be
eligible for the exemption.
8.2 In this regard, the appellant has submitted that it is totally con-
trolled by the Central Government. The appellant has cited following provisions
of NDDB Act.
(i) The Board of Directors of NDDB would be nominated by the Cen-
tral Government. [Section 8]
GST LAW TIMES  14th May 2020  157