Page 175 - GSTL_23rd April 2020_Vol 35_Part 4

2020 ] IN RE : KONKAN LNG PRIVATE LIMITED 501
10. That the Learned ARA, through its order has held that the KLPL is
not eligible to claim ITC mainly on the below mentioned three grounds :-
(a) Construction of Breakwater is only facilitating receipt of raw mate-
rial i.e. LNG and is not going to be used for rendering outward
supply.
(b) The Breakwater, being an immovable structure, cannot be consid-
ered as Plant & Machinery.
(c) KLPL is already functioning without the complete breakwater and
hence could not able to establish that it is impossible for them to
function without Breakwater.
11. That the appellant being aggrieved by the impugned order has pre-
ferred an appeal before the appellate authority for advance ruling under Section
100 of the CGST/MGST Act on the following grounds :-
Grounds of appeal
12. Because on the facts and circumstances of the case, the Learned
ARA has failed to appreciate the definition of the term “Plant and Machinery” as
defined in the explanation to Section 17. Although the learned authority has
rightly appreciated the function of the breakwater when it has stated that “in the
subject case the breakwater will, if any, be facilitating the receipt of raw material
i.e. LNG by the applicant”. However it has misinterpreted and has taken a myop-
ic view, when it says that “it is not going to be used for rendering outward sup-
ply of goods or services or both”.
13. Because on the facts and circumstances of the case, the Learned
ARA has failed to appreciate Section 17(5)(d) read with explanation when it stat-
ed that breakwater being an immovable property cannot be considered as “plant
and machinery” whereas the position of law is otherwise. The foundation or
structural support of the plant & machinery, even though it is an immovable
property, will be considered as an integral part of plant & machinery. Therefore,
all immovable structures are not disqualified from being covered in the term
plant & machinery.
14. Because on the facts and circumstances of the case, the Learned
ARA has relied on the theory of the essentiality test when it mentions that “to
qualify for inclusion in the term ‘plant, it must be established that it is impossible
for the regasification plant to function without the breakwater”. However there
is no such essentiality test provided in the explanation to Section 17.
15. The appellant carves the leave of the Honourable Appellate Author-
ity to submit any other information & documents and take any other grounds of
law during the proceedings of this case.
Prayer
16. In view of the foregoing, it is respectfully prayed that the Ld. Ap-
pellate Authority, Maharashtra may be pleased to :
(a) Set aside/modify the impugned advance ruling passed by the Au-
thority for Advance Ruling as prayed before,
(b) Grant a personal hearing; and
(c) Pass any such further or other order(s) as may be deemed fit and
proper in facts and circumstances of the case.
And for this act of kindness, the appellant, as is duty bound, shall ever pray.
GST LAW TIMES  23rd April 2020  295