Page 168 - GSTL_3rd September 2020_Vol 40_Part 1

102 GST LAW TIMES [ Vol. 40
3. Contention of the Appellant :
(a) Appellant states that the main objective and purpose of laying rail-
way track is for transporting raw materials inside the factory and
for outward transportation of finished product. Taking into account
the aforementioned facts it was contended that railway siding is in-
tegral part and inseparable in manufacturing process without which
steel cannot be manufactured.
(b) The Appellant requests for ruling on the following questions by the
Hon’ble Appellate Authority for Advance Ruling (hereinafter
(‘AAAR’) :-
(1) Whether the impugned order is right in holding that the
items in question merit treatment as a civil struc-
ture/immovable property and not as “plant and machinery”?
(2) Whether the impugned order fails to appreciate the expres-
sion “plant and machinery” in the explanation in Section 17
of the CGST Act, 2017 without considering the meaning of
‘equipment’, ‘apparatus’ and ‘machinery’ mentioned therein?
(3) Whether the Hon’ble Supreme Court’s decision in Jayaswal
Neco Ltd. [2015 (319) E.L.T. 247 (S.C.)] holding that Railway
Siding is eligible for credit can be disregarded merely on the
ground that it was rendered under Cenvat Credit Rules when
the issue therein involves interpretation of identical words as
to whether ‘machines, machinery, plant, equipment, appa-
ratus’ will include railway siding?
(4) Even if they are regarded as immovable property, the rail
tracks, signaling and telecommunication systems can be re-
garded as are supporting structures or foundation on which
the Locomotives and Torpedo Laddle owned by the Appel-
lant has to ply for the purpose of various material handling
work within the factory?
(5) Whether the impugned order is right in denying credit for
some portion of rail network outside the factory given that
such exclusion is limited only to Pipelines in the Explanation?
(6) Whether the impugned order fails to appreciate the scope of
Section 16 of the CGST Act, 2017, which allows credit of taxes
on supply of goods or services or both used or intended in
the course or furtherance of one’s business?
(c) That, the impugned order concludes that railway siding works are
nothing but immovable property and cannot be considered as
goods in any way for the simple reason that these are attached to
earth. The impugned order also places on the definitions of the term
“immovable property” under General Clauses Act, 1897 and Section
3 of the Transfer of Property Act, 1882 to explain the term “immov-
able property”. Certain case laws also were relied upon by the Au-
thority in support of its conclusion.
(d) That, on bare perusal of Section 17(5)(c) and (d) of the CGST Act,
2017, it is understandable that the test of movability/immovability
is immaterial to determine the eligibility of credit once the items in

GST LAW TIMES  3rd September 2020  184