Page 143 - GSTL_27th August 2020_Vol 39_Part 4

2020 ] IN RE : P.K. MAHAPATRA 469
communication service. Likewise, when illumination is required
and essential for the round the clock operation of the plant, credit of
taxes paid thereon should be allowed by this Authority.
(y) That, the AAR also relied on the decision of the Supreme Court in
Triveni Engineering India Ltd. v. Commissioner of Central Excise, 2000
(120) E.L.T. 273 (S.C.) to support its conclusion that if anything is at-
tached to earth, both the factum as well as the intention of fastening
has to be ascertained from the facts and circumstances of the each
case.
(z) That, it is submitted that any reliance on the decision in Triveni
Engineering is incorrect for several reasons. The decision in Triveni
Engineering was rendered in the context of central excise law, where
the movability or otherwise of the items in question was integral to
determine the excisibility of goods. In Triveni Engineering, the items
in question (steam turbine and alternator) were erected on a plat-
form specially constructed for the purpose which made the machine
immovable. Under the GST law, the test of movabil-
ity/immovability is irrelevant and the explanation in Section 17 of
the CGST Act, 2017 clearly permits and does not bar “plant and ma-
chinery” to be attached to earth by foundation or structural support.
(aa) That, reference is also made by the impugned order to C.B.I. & C.
Circular No. 58/1/2002-CX, dated 15-1-2002 to state that if items as-
sembled or erected at site and attached by foundation to earth can-
not be dismantled without substantial damage to its components,
then the items cannot be considered as movable and will, therefore,
not be goods.
(ab) The Appellant reiterated that the test of immovability/movability is
irrelevant under the GST law and that under the GST law, the ex-
planation in Section 17 of the CGST Act, 2017 clearly allows items to
be assembled to earth by foundation/structural support.
(ac) That, the AAR observed that lighting of plant road/towers cannot
be treated as plant and machinery by any stretch of imagination in-
asmuch as plant and machinery used for making outward supplies
and rather merit treatment as civil structure having no relationship
with outward supply. It is also observed that provisions facilitating
availment of input tax credit do not extend any blanket or uncondi-
tional permission for availment of credit and all items irrespective
of its use, place of use and its role in making the outward supply.
(ad) That, the conclusions of the AAR is also flawed for the reason Sec-
tion 16 of the CGST Act, 2017 for the following reasons :-
 Section 16 of the CGST Act, 2017 allows credit inputs/inputs
services used or intended to be used in the course of further-
ance of one’s business, unless restricted by Section 17 of the
CGST Act, 2017.
 Since the inputs/services in question are necessary for illu-
mination of the plant and enable round the clock manufactur-
ing operations, the goods and services in question should be
construed to be used in the course or furtherance of business
and used for making outward supply.
GST LAW TIMES  27th August 2020  143