Page 153 - GSTL_27th August 2020_Vol 39_Part 4

2020 ] IN RE : P.K. MAHAPATRA 479
(b) telecommunication towers; and
(c) pipelines laid outside the factory premises.
Accordingly, if a structure resulting from an expense satisfies above definition,
then it shall be construed as a Plant and Machinery.
7.6 The said project for lighting consisting of civil structures as dis-
cussed above cannot be said to be used by the Appellant for making outward
supply of goods or services or both, which is the utmost essential ingredient for
being termed as “Plant and Machinery”. In the instant case, Structures/towers
meant for Lighting for Plant Road, Boundary Wall and Watchtower can in no
way be related to the outward supply of goods. As per Section 2(83) of CGST Act,
2017 “outward supply” in relation to a taxable person, means supply of goods or services
or both, whether by sale, transfer, barter, exchange, licence, rental, lease or disposal or
any other mode, made or agreed to be made by such person in the course or furtherance of
business. Not acceding, but if assuming for the sake of discussion that these are
apparatus/equipment as contended by the Appellant then too it is implausible
and far-fetched to imagine that these items which eventually are used for light-
ing of Plant Road, Boundary wall and watchtower, are used for making any
“outward supply”. To apply the term “used for” in the definition for plant and
machinery, there should be a nexus between the impugned items on which ITC
is being claimed and “outward supply”. In the present case the project of lighting
of plant Road, Boundary wall and watchtower will render such nexus tenuous.
7.7 We affirm with the findings by the AAR that “the provisions facili-
tating availment of Input Tax credit does not extend any blanket or uncondition-
al permission for availment of credit on all items irrespective of its use, place of
use and its role in making outward supply of goods or services or both, as ap-
pears to have been misconstrued by the applicant. These towers, boundary and
watch tower by their very nature appears to be nothing but independent civil
structures, having no relationship whatsoever with outward supply”.
8. The Appellant have cited reference of decisions of Hon’ble Supreme
Court’s in the case of Scientific Engineering House Pvt. Ltd. v. Commissioner of
Income Tax, AP and in the case of Pipavav Defense and Offshore Engineering Co. Ltd.
of Hon’ble Gujarat High Court in support of their claim that these items are
“plant”/machinery/apparatus/equipment. The case laws cited by the Appellant
are distinguishable to the facts and circumstances involved here inasmuch as,
these items have no nexus whatsoever with the “outward supply” involved here,
as already discussed in the preceding para.
8.1 The Appellant’s reliance of the case laws of Hon’ble CESTAT in the
case of SAIL v. CCE & ST Raipur and CCE v. India Cement, Hon’ble Supreme
Court in the case of CCE v. Jawahar Mills Ltd., Hon’ble HC in the case of CCE,
Tiruchinapalli v. Maris Spinners Ltd., in the instant case is misplaced as the issues
involved therein pertained to an altogether distinct and different set of law gov-
erning availment of Modvat/Cenvat credit under Modvat/Cenvat Credit Rules.
These issue pertains to the erstwhile Capital goods Cenvat credit regime when
the chapter heading/sub-heading of the items, qualified them being termed as
“capital goods”, that were specifically covered under the definition of capital
goods mentioned in the statute viz. items falling under Chapter 84, 85 etc. of
CETA, 1985. Some case law cited even pertain to the period when Rule 57Q of
erstwhile Central Excise Rules, 1944 as was in vogue, stipulating therein the pro-
visions for availment of credit.
GST LAW TIMES  27th August 2020  153