Page 190 - GSTL_3rd September 2020_Vol 40_Part 1

124 GST LAW TIMES [ Vol. 40
of Jayaswal Neco Ltd. v. CCE, Raipur, 2015 (319) E.L.T. 247 (S.C.), Aditya Cement
[2008 (221) E.L.T. 362 (Raj.)], CCE, Raipur v. Vimla Infrastructure Private Limited -
2018-TIOL-556-HC-Chhattisgarh-ST = 2018 (13) G.S.T.L. 57 (Chhattisgarh),
Ultratech Cement Ltd. v. Commissioner of Central Tax, Bangalore North, 2019-TIOL-
646-CESTAT-BANG = 2016 (339) E.L.T. 127 (Tribunal) and Vodafone Mobile Ser-
vices Limited v. Commissioner of Service Tax, Delhi, 2018-TIOL-2409-HC-DEL-ST =
2019 (27) G.S.T.L. 481 (Del.).
The aforesaid case laws cited by the Appellant pertain to either the erst-
while Rule 57Q of the earlier Central Excise Rules, 1944 as was in vogue, stipulat-
ing therein the provisions for availment of credit of Capital goods under Cenvat
credit regime when the chapter heading/ sub-heading of the items which quali-
fied being termed as “capital goods”, were specifically covered under the defini-
tion of capital goods mention in the statute viz items falling under Chapter 84, 85
etc. of CETA, 1985. Further in almost all the case laws cited by the appellant, the
credit of duty was claimed on items used within the factory premises of the
claimant, which is not the case here inasmuch as the railway siding is located
outside the premises of M/s. NMDC. As regards the case of M/s. Vimla Infrastruc-
tures Pvt. Ltd., the said party was a service provider engaged in rendering cargo
handling service wherein it was held that railway sidings facilitate provision of
cargo handling service. Thus the said case laws are distinct and distinguishable
to the facts and circumstances in hand.
10.3 The Appellant have also cited reference of decisions of Hon’ble
Supreme Court’s in the case of Scientific Engineering House Pvt. Ltd v. Commission-
er of Income Tax, AP and in the case of Pipavav Defense and Offshore Engineering Co.
Ltd. of Hon’ble Gujrat 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, the
items involved here lack having the necessary nexus with the “outward supply”
as discussed in the preceding para.
10.4 Citing reference of the case of Vodafone Mobile Services Limited v.
Commissioner of Service Tax (Delhi High Court) dated 31-10-2018, it was Appel-
lant’s contention that Credit of taxes paid on telecom towers have been allowed.
In this context, it is seen that the case of M/s. Vodafone Mobile Services Ltd. and oth-
er such providers of Telecommunication service providers are distinct and dis-
tinguishable from the facts and circumstances of the case in hand, inasmuch as in
the cited case such towers are being used for providing the “output service”, viz.
Telecommunication service, whereas in the instant case the impugned items in-
volved here required for the said project of laying of private railway siding on
which ITC is being claimed lack having the necessary nexus with the “outward
supply”. In the cited Vodafone case, ‘Capital goods’ are the items under specified
Tariff headings or parts, components, spares or accessories thereof and these are
‘Base Transmission System’ (BTS), which enables the telecom company to trans-
mit mobile signals for rendering telecom services. Appellant have also given ref-
erence to other case laws as well, all of which in view of the above stated reasons
are distinct and distinguishable from the issue in hand. As already discussed it is
of utmost importance for availing credit, that the nexus test gets established.
Thus, the cited case laws do not help Appellant’s cause in any way.
10.5 It has also been the Appellant’s contention that in Schedule XIV to
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