AAR
Advance RulingsCase Briefs

Authority for Advance Ruling [West Bengal]: In an application sought for advance ruling on the question, whether conservancy/solid waste management services is exempted from Goods and Services Tax (‘GST’), the two-member bench of Brajesh Kumar Singh and Joyjit Banik held that the applicant’s supply to the Howrah Municipal Corporation (‘HMC’) for operation and maintenance of capacity portable compactor and hook loader is eligible for exemption from payment of tax vide serial number 3-A of the Notification No. 12/2017 – Central Tax (Rate), if the value of goods involved in such composite supply does not exceed 25% of the value of supply.

The applicant submits that the services provided by them is a “Pure service” which is covered under serial number 3 of the Notification No. 12/2017 of Central Tax (Rate) which exempts “pure service” from GST.

The Authority said that the annual maintenance of compactor and hook loader involves supply of goods like spare parts, therefore, the instant supply is not a pure service.

It further opined that the instant supply is a composite supply of goods and services, and such supply can qualify for exemption vide serial No. 3A of the exemption notification only when the value of goods involved in such composite supply does not exceed 25% of the value of supply, and the same is provided to the Central Government, State Government or Union territory or local authority by way of any activity in relation to any function entrusted to a Panchayat (Article 243G) or Municipality (Article 243W) under the Constitution.

The Authority while ascertaining whether the services provided by the applicant are in relation to any functions entrusted to a municipality under article 243-W of the Constitution, said that the functions entrusted to a municipality as listed in the twelfth schedule include the functions like sanitation conservancy and solid waste management., therefore it was held that the applicant’s services to HMC may be exempted under serial number 3A of the exemption notification if the value of goods involved in such composite supply does not exceed 25% of the value of supply.

[Banchu Das, In re, WBAAR 23 of 2022, decided on 21-10-2022]


Advocate who appeared in this case :

Represented by: Tanmay Ghosh.


*Apoorva Goel, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal, New Delhi (NGT): The coram of Adarsh Kumar Goel J (Chairperson), Sudhir Agarwal (Judicial Member), JJ. and Prof. A. Senthil Vel (Expert Member) took up the issue of monitoring of solid waste management as per orders of the Supreme Court in Almitra H. Patel v. Union of India, 2014 SCC OnLine SC 1844, order dated 02.09.2014 as well as liquid waste management in Paryavaran Suraksha v. Union of India, (2017) 5 SCC 326 and awarded compensation of Rs. 12000 crore under S. 15 of National Green Tribunal Act, 2010 to remedy the continuing damage to the environment.

Orders of the Supreme Court

With regards to monitoring of solid waste management, the Supreme Court relied on Municipal Council, Ratlam v. Vardhichand, (1980) 4 SCC 162 and B.L. Wadhera v. Union of India, (1996) 2 SCC 594 where it was held that clean environment is fundamental right of citizens under Article 21 and the local bodies as well as the State should ensure that public health is preserved by taking all possible actions and held that “…handling of solid municipal waste is a perennial challenge and would require constant efforts and monitoring with a view to making the municipal authorities concerned accountable, taking note of dereliction, if any, issuing suitable directions consistent with the said Rules and direction incidental to the purpose underlying the Rules such as upgradation of technology wherever possible. All these matters can, in our opinion, be best left to be handled by the National Green Tribunal established under the National Green Tribunal Act, 2010.”

With regards to monitoring of liquid waste management, the Supreme Court in Paryavaran Suraksha v. Union of India, (2017) 5 SCC 326 held that “the Secretaries to the Government concerned shall be responsible for monitoring the progress and issuing necessary directions to the Pollution Control Board concerned, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data and shall furnish the same to the Bench of the jurisdictional National Green Tribunal. To supervise complaints of non-implementation of the instant directions, the Benches concerned of the National Green Tribunal, will maintain running and numbered case files, by dividing the jurisdictional area into units.”

Tribunal’s Take

With regards to solid waste management, the Tribunal has considered the matter in the last eight years and as far as for liquid waste management, more than five years. The Tribunal Stated that

“Moreover, without fixing quantified liability necessary for restoration, mere passing of orders has not shown any tangible results in the last eight years (for solid waste management) and five years (for liquid waste management), even after expiry of statutory/laid down timelines. Continuing damage is required to be prevented in future and past damage is to be restored.”

The Tribunal observed that there is no meaningful progress and there are huge gaps in management of solid as well as liquid waste. The Tribunal stated that further steps are to be taken for past violations liability of the State in terms of monetary compensation on ‘Polluter Pays’ principle which will be utilised for restoration of damage to the environment.

The Tribunal also stated that restoration measures for sewage management would include, establishing sewage treatment and utilisation systems, ensuring compliance with standards, upgrading systems/operations to ensure full capacity utilisation and establishing proper faecal sewage and sludge management in rural areas.

For solid waste management, the Tribunal suggested for segregation of the solid waste at its source and at earliest processing which includes establishment of waste processing units for adequate compositing/vermicomposting/bio-methanation and rehabilitation of 84 sites that have been overlooked.

The Tribunal also suggested that bioremediation/bio-mining process must be carried out in accordance with CPCB guidelines. The Tribunal stated that the restoration plan must be executed in a time bound manner and if violations continued, additional compensation may be considered against the State.

“This restoration plan needs to be planned and executed in a time bound manner without further delay. If violations continue, liability to pay additional compensation may have to be considered. Compliance will be the responsibility of the Chief Secretary”

The Tribunal observed that it is high time that the State realize its duty towards law and citizens and adopts further monitoring at its own level and decided to rest compensation on State as per Polluter Pays principle under S. 20 of the NGT Act, 2010.

“Compensation has to be equal to the loss to the environment and also taking into account cost of remediation.”

The Tribunal relied on Abhisht Kusum Gupta v. State of U.P., 2021 SCC OnLine NGT 205 and determined the compensation of ₹10,840 crores in respect of gap in treatment of liquid waste and ₹1,200 Crores in respect of un-remediated legacy waste, in total ₹12,000 crores and directed the State of Maharashtra to deposit the same in a separate ring-fenced account within two months which is to be operated as per directions of Chief Secretary for restoration measures. Further, it has also been directed to Chief Secretary to consider filing six monthly progress reports with a copy to the Registrar General of this Tribunal.

[In re: Compliance of Municipal Solid Waste Management Rules, 2016 and other environmental issues, 2022 SCC OnLine NGT 209, decided on 08.09.2022]


*Ritu Singh, Editorial Assistant has put this report together.

AAR GST
Case BriefsTribunals/Commissions/Regulatory Bodies

   

Tamil Nadu Authority for Advance Ruling: T.G. Venkatesh, Additional Commissioner of GST & Central Excise, and K. Latha, Joint Commissioner of State Tax has held that the contracts relating to solid waste management and removal of legacy waste dumped at bio-mining sites, except Bio-CNG are exempted from GST.

Factual Background of the case

The applicant is in the bio-waste management sector and does all types of waste management like collection and transportation, manpower supply, bio-mining, micro composting center, and bio- CNG gas.

An application was filed by the applicant, before the Tamil Nadu Authority for Advance Ruling to seek an Advance Ruling on the following:

  • Whether contracts received from various city corporations and a municipality towards solid waste management are exempted from GST?

  • Whether contracts received from various city corporations and a municipality towards the removal of legacy waste dumped at dump sites through Bio-Mining process is exempted from GST?

Analysis and Decisions

The Bench referred to the definition of ‘pure services' as defined under Sl. No.3 of Notification 12/2017- C.T. (Rate) dated 28-06-2017. According to the definition, “Pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Central Government, State Government or Union territory or local authority or a governmental authority by way of any activity in relation to any function entrusted to a Panchayat under Article 243-G of the Constitution or in relation to any function entrusted to a Municipality under Article 243-W of the Constitution.

In the light of the above definition, the Bench gave the following decision-

A. Removal of Legacy waste

The Bench observed that removal of legacy waste and reclamation of land is a process whereby the accumulated legacy solid waste is segregated, and the dump site is cleared to reclaim the lands for better usage. Therefore, the Bench held that the contracts received from various city corporations and municipalities towards the removal of legacy waste dumped at the site through the bio-mining process are pure services rendered to local authority and such act is being entrusted to a municipality under Art. 243-W of the Constitution. Hence, such contracts are eligible for exemption from GST.

B. Micro-composting and labour services

The Bench observed that the applicant, to carry out the activity of removal of legacy waste, needs to maintain micro compost centers and employ labourers and operators in order to carry out the service. Therefore, the bench held that contracts entered into for Maintenace of micro-composting and labour contracts for collection of solid waste are ‘pure services' rendered to local authorities and are activities rendered to local authorities and entrusted to the municipality under Art. 243-W of the Constitution.

C. Production of Bio-CNG

Further, the Bench opined that conversion of wet waste into BIO-CNG does not fall under the pure services as the applicant needs to set up a separate plant and machinery and structure as a new product is being produced and no service is being rendered to a local authority or the Government. Therefore, the bench held that the contract on Bio-CNG does not qualify as pure services. Hence, it was not eligible for GST exemption.

[Srinivas Waste Management Services Pvt. Ltd., Or, No. 23/AAR/2022, decided on 30-06-2022]

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Ritu Raj Awasthi CJ. and S. R Krishna Kumar JJ. issued directions regarding setting up of solid waste management units after expert opinion from concerned authorities.

The instant writ petition was filed under Articles 226 and 227 of the Constitution of India praying to issue writ in the nature of mandamus or any other appropriate writ directing the respondent authorities to shift the location identified for setting up solid waste management unit of Somanahalli Grama Panchayat of Amabigarahalli village of Mandya district.

Counsel for petitioners submitted that the location of the site for solid waste management is not at all proper and correct. It is submitted that it is very much near to the river and as such, there is strong apprehension that the solid waste dump at the proposed site may pollute the river. It is also submitted that nearby there are temples and as such, it may affect the religious sentiments of the people visiting the temples. It may also cause environmental pollution and health hazards for the people living nearby the area to the site. The petitioners who are said to be the residents of the area have raised the grievance but, it has not been considered by the Authorities concerned.

The Court observed that it is for the concerning Authorities to find out the most suitable place for the establishment of the solid waste management unit. The impact of dumping of solid waste is to be kept in mind while deciding the location of the site. It shall not affect the residents of the area and the environment at large.

The Court held “We, therefore, dispose of this writ petition with the observation that the petitioners may raise their grievance by way of fresh representation within a period of ten days from today before respondent no. 4- Deputy Commissioner, DC office, Mandya District, who may look into the matter and if need be , take an expert opinion, and pass appropriate orders in accordance with law expeditiously, say, within a period of six weeks from the date of certified copy of this order along with the representation is placed before him.”[A B Devaraju v. State of Karnataka, WP No. 6386 of 2022, decided on 29-03-2022]

Appearances

For petitioner- Sri Sharath S Gowda

For respondent- G V Shashi Kumar


Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsSupreme Court

Supreme Court: The Bench comprising of Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ., in an order stated that the critical problem of “solid waste management” in Delhi certainly requires the active cooperation and assistance of the residents of Delhi.

The Bench on a careful reading of the report prepared by Ragini Jain and Almitra H. Patel in five volumes and considering the present situation of Delhi in regard to the solid waste management requested the Lt. Governor of Delhi to constitute a committee that would be responsible to go through the in-depth aspects of solid waste management in Delhi along with the cleaning of the dumpsites in Gazipur, Bhalswa, and Okhla. Further, the Court asked for the formation of a workable and implementable policy for the stated purpose.

The Supreme Court while directing the formation of the stated committee by the Lt. Governor asked them to not rush into taking any decision as the matter is of considerable importance. Also, the Committee was asked to be collaborative while the decision-making process would take place and in a manner that the cleanup mission brings a forward step instead of any hurdles for the said issue.

The matter was further listed for 27-08-2018 while asking the amicus curiae to suggest 4 to 5 people from the civil society who could be the member of the Committee. [Outrage as Parents End Life After Childs Dengue, In Re,2018 SCC OnLine SC 1016, Order dated 17-8-2018]