Page 174 - GSTL_3rd September 2020_Vol 40_Part 1

108 GST LAW TIMES [ Vol. 40
(w) That, the Delhi High Court had allowed credit of taxes paid on tele-
com towers holding the same to be essential for provision of tele-
communication service. Likewise, when railway siding works are
essential for transport of raw materials, credit of taxes paid thereon
should be allowed by this Authority.
(x) That, reliance was also placed by the AAR on the decision of the
Supreme Court in Triveni Engineering & Indus. Ltd. v. Commissioner of
Central Excise, 2000 (120) E.L.T. 273 (S.C.) to support its conclusion
that if anything is attached to earth, both the factum as well as the
intention of fastening has to be ascertained from the facts and cir-
cumstances of the each case.
(y) That, any reliance on the decision in Triveni Engineering is incorrect
for several reasons. The decision in Triveni Engineering was ren-
dered in the context of Central Excise law, whereunder the movabil-
ity or otherwise of the items in question was integral to determine
the excisability of goods. In Triveni Engineering, the items in ques-
tion (steam turbine and alternator) were erected on a platform spe-
cially constructed for the purpose which made the machine immov-
able. Under the GST law, the test of movability/immovability is ir-
relevant and the explanation in Section 17 of the CGST Act, 2017
clearly permits and does not bar “plant and machinery” to be at-
tached to earth by foundation or structural support.
(z) That, reference is also made by the impugned order to C.B.E. & 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.
(aa) That, the Appellant, reiterates that the test of immovabil-
ity/movability is irrelevant under the GST law and that under the
GST law, the explanation in Section 17 of the CGST Act, 2017 clearly
allows items to be assembled to earth by foundation/structural
support.
(ab) That, under Section 17 of the CGST Act, 2017, the expression “plant
and machinery” is defined as apparatus, equipment and machinery
fixed to earth by foundation or structural support used for making
outward supply of goods or services or both and includes such
foundation and structural support.
(ac) The Appellant submits that they are entitled to input credit for the
following reasons :
(a) Large part of the railway are intended to bring the raw mate-
rial, unload them in the material handling plant area, move
the molten metal in the Torpedo Laddle to the Pig iron plant,
load the finished goods for further transportation and they
are integrally connected with the operations.
(b) The expression ‘plant and machinery’ does not merely in-
clude only mechanical items but those that aid in the manu-
facture of goods. The rail network within the plant, signaling
system and other telecom network established in the factory
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