2019 (11) TMI 1452 - AAAR - GST

Input Tax Credit - construction/reconstruction of the break water - Plant and Machinery or not - Section 17(5)(d) of the CGST Act - HELD THAT - The plant generally means and includes a place where industrial activity takes place or a factory where certain material is produced or big machinery used to carry out certain processes of production. The term plant and machinery is used in conjunction with each other and by the application of the principle of ejusdem generis , it is clear that the meaning to be given to the term machinery should take its color from the word plant . The term plant and machinery therefore should be interpreted to mean a place where certain commercial /manufacturing activities/ processes of production are carried out with the help of inputs - In the present case, the breakwater wall or the Accopods that are an essential part of it certainly do not qualify as plant and machinery . The explanation to section 17 (5) (d) says that the term plant and machinery covers apparatus, equipment and machinery. The break water wall constructed on the sea to protect the ship from high waves can hardly be called machinery or apparatus or equipment. Neither in common parlance nor in technical parlance would one associate a civil structure like a breakwall to be plant and machinery or machinery, apparatus or equipment. Machines are something which employ power to achieve. Equipment and apparatus mean tools for a particular purpose. The term tool here is very important. It is meant to be a device or implement, especially one held in the hand, used to carry out a particular function. The breakwater wall does not remotely fall under any of these description. The break water not only comprises piling of Accropods on top of each other but involves extensive civil work and foundation laying in order to build the break water wall and the Accropods is only a part of it. It is therefore an immoveable structure though not plant and machinery. It is seen from the explanation that land, building and civil structures are specifically excluded from the scope of plant and machinery . Therefore even though assuming that the structure is a plant and machinery (which it is not as we have concluded in the preceding paragraph) it will be excluded by virtue of it being a civil structure. The extensive earthwork as well as civil work which has gone into the making of the breakwater wall makes it clear that the entire thing is nothing but a civil structure. The terminology itself says that it is a wall. The order passed by the AAR is confirmed.

Summary

Issues Involved:
1. Eligibility for Input Tax Credit (ITC) on the construction/reconstruction of a breakwater.
2. Interpretation of "Plant and Machinery" under Section 17(5)(d) of the CGST Act.
3. Applicability of exclusions under Section 17(5)(d) to the breakwater.

Detailed Analysis:

Issue 1: Eligibility for Input Tax Credit (ITC) on the construction/reconstruction of a breakwater.
The appellant, engaged in LNG regasification, sought clarity on claiming ITC for GST paid on constructing a breakwater, essential for the jetty's safety and operational efficiency. The Advance Ruling Authority (ARA) denied ITC, citing Section 17(5)(d) of the CGST Act, which disallows ITC for goods/services used in constructing immovable property (other than plant and machinery). The appellant contested this, arguing that the breakwater is integral to their operations and should qualify as "plant and machinery."

Issue 2: Interpretation of "Plant and Machinery" under Section 17(5)(d) of the CGST Act.
The ARA ruled that the breakwater is an immovable structure and does not qualify as plant and machinery. The appellant argued that the breakwater, though immovable, should be considered part of plant and machinery as it supports the jetty's operations. The appellate authority examined various dictionary definitions and legal interpretations of "plant and machinery," concluding that the breakwater does not fit within these definitions. The breakwater is a civil structure, not an apparatus, equipment, or machinery used for outward supply.

Issue 3: Applicability of exclusions under Section 17(5)(d) to the breakwater.
The appellate authority reiterated that the breakwater falls under the exclusions listed in Section 17(5)(d), specifically "land, building, or any other civil structure." The extensive civil work involved in constructing the breakwater further supports this classification. The appellant's reliance on the Mazgaon Dock and other case laws were deemed inapplicable, as the definitions under the Income Tax Act differ from those in the CGST Act.

Conclusion:
The appellate authority upheld the ARA's decision, confirming that the breakwater is an immovable civil structure and does not qualify for ITC under Section 17(5)(d) of the CGST Act. The order emphasized that the breakwater does not meet the criteria for "plant and machinery" and falls within the exclusions specified in the Act.