Page 182 - GSTL_3rd September 2020_Vol 40_Part 1

116 GST LAW TIMES [ Vol. 40
Railway allied works : Signaling and telecommunication works in the in-
plant yard and connectivity lines, General electrical works in the in-plant
yard and connectivity lines etc.
5.8 The relevant Tender Enquiry No. TS No. AA/904/14-15/Pkg-
4/Rev-II, dated 14th August, 2014 in respect of aforesaid Package-IV, issued by
NMDC, the Appellant specifies the Scope of Work as under :-
Civil Works :- Leveling, providing blanketing layer, slope dressing, Turf-
ing, pitching, providing longitudinal/cross/catch water drains, Disposal
of surplus and unserviceable earth, Construction of Minor Bridg-
es/Culverts (Extension/New Bridge), drains/Nullah crossings etc. Ex-
tension of Level crossing Gates and construction of gate lodge Buildings,
construction of Railway staff quarters, Station building and other ancil-
lary works, dismantling of existing structures, if any, Construction of
Platforms, Construction of Foot over bridge, Construction of Masonry/
CC drains, Provision of fencing as required, Approach Roads as re-
quired, Construction of retaining walls, if required etc.
Supply of Railway materials :- Supply of Rails, PSC Sleepers, Laying &
linking the track including assembly of points and crossings and sand
humps, Fabrication & fixing of check rails on level crossings/curves and
guard rails etc., Fabrication & erection of Dead ends, Casting & fixing
RCC fouling marks, gradient posts, KM posts, Hectometer posts, Curve
Point number of boards, level crossing boards etc., Construction of build-
ings for TSS, SSP, SP, OHE, Tower wagon shed & PSI Depot, OHE for
diversion line etc.
5.9 The Appellant have pleaded in the instant appeal, that perusal of
Section 17(5)(c) and (d) of the CGST Act, 2017 reveals that the test of movabil-
ity/immovability is immaterial to determine the eligibility of credit once the
items in question qualify as “plant and machinery”. It was their contention that
once the items in question qualify as “plant and machinery”, they stand excluded
from the meaning of, “immovable property”. The Appellants contention is that
under the CGST Act, 2017, even if the items in question are attached to earth,
they will qualify as “plant and machinery”. As regards the exclusions specified
in the statute it was their opinion that ITC on goods and services is restricted if
the same is used for construction of an immovable property unless that immova-
ble property results in plant & machinery and further that credit of taxes paid on
various inputs will be eligible as railway siding satisfies the definition of plant &
machinery.
5.10 In the instant Appeal, the Appellant seeks addressal on the prima-
ry issue as to whether the AAR was right by holding that the items in question
merit treatment as a civil structure/immovable property and not as “plant and
machinery” and whether the order of AAR dated 24-4-2019 failed to appreciate
the scope of Section 16 of CGST Act, 2017.
5.11 Section 16(1) of CGST Act stipulates that :
“Every registered person shall, subject to such conditions and restrictions as
may be prescribed and in the manner specified in section 49, be entitled to
take credit of input tax charged on any supply of goods or services or both
to him which are used or intended to be used in the course or furtherance
of his business and the said amount shall be credited to the electronic credit
ledger of such person.
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