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TMI Blog2019 (6) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... s, therefore, railway transport, and the service of moving empty or loaded wagons/rakes at DSTPS Siding is nothing but the supporting service of railway pushing and towing (SAC 996731). It describes the nature of the Applicant s service more specifically than leasing or rental services concerning transport equipment, including containers with or without operator (SAC 997311) - The communication from the East Central Railway referred to above, which deals with the GST applicable to different services that the Railways offer to the customer, is not relevant in the present context. The Applicant s service to the DVC, as described in para no. 4.1, is classifiable as railway pushing and towing service (SAC 996731) and taxable @ 18% under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Railways to the factory premises of the company and vice versa. The Applicant seeks a ruling on the classification of the above service and the applicable rate of tax under Notification No. 11/2017-Central Tax (Rate) dated 28/06/2017 (corresponding State Notification No. 1135 - FT dated 28/06/2017), as amended from time to time [hereinafter collectively referred to as Rate Notifications (Service)]. 1.2. Section 97(2) (a) (b) of the GST Act empower this Authority to pronounce a ruling on the classification of any goods or the applicability of a notification issued under the GST Act. Classification refers to the determination of the nature and character of the goods or services being supplied. The purpose of the exercise is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter the DVC), which has objected to charging GST at 18% rate. The DVC refers to Circular No. Books/GST/17-18/pt I dated 19/07/2017 of East Central Railway. In the said circular the railway authority informs that charges for terminal access, shunting, stabling, haulage or detention is classifiable under leasing or rental services concerning transport equipment with or without operator (SAC 997311) and taxable at the rate applicable to the goods. As diesel locomotives are taxable @ 5% under Sl No. 236 of the Rate Notifications (Goods), the service mentioned above is taxable @ 5% as well. 2.2 The Applicant, however, maintains that a diesel-hydraulic shunting locomotive is not transport equipment. Furthermore, services pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the equipment on lease but also performing the activities for which the equipment has been taken on lease. The essence of the contract is defined by the extent to which the supplier is engaged in performing those activities. Classification of the service provided in such complex umbrella contract is, therefore, entirely dependent upon the terms of the specific contract. As the dispute regarding the classification of the Applicant s service relates to the contract with the DVC, this Authority examines the question with respect to that contract. 4.2 The DVC issues Work Order no. CE/DSTPS/T/1021(17)/ARC LOCO/Fuel/WO/903 dated 07/10/2017 for the hiring of diesel shunting locomotive on lease for placement/shunting of rakes at DST P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l etc. to the DSTPS Siding from Andal Railway Station is excluded from railway transport, as defined under the Railways Act, 1989, the Applicant s activities, as described in the Work Order, definitely qualify as the supporting service of railway pushing and towing. 4.4 The term railways is not defined in the GST Act. It, however, is defined under section 2(31) of the Railways Act, 1989, meaning a railway, or any portion of a railway, for the public carriage of passengers or goods, and includes (a) All lands within the fences or other boundary marks indicating the limits of the land appurtenant to a railway; (b) All lines of rails, sidings, or yards, or branches used for the purpose of, or in connection w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a private siding from being included in the definition of railways has repeatedly come up for judicial scrutiny. The courts generally held that the phrase public carriage of passengers or goods cannot be construed in such manner as to exclude from the ambit of railways the sidings built and owned by organisations other than the government. [Cases relied upon: DMRC -vs- Municipal Corporation of Delhi, 2008 (103) DRJ 369 (Delhi High Court) = 2008 (5) TMI 647 - DELHI HIGH COURT ; Commissioner, Central Excise, Raipur -vs- Anand Construction, 2017 (51) STR 435 (CESTAT, Principal Bench, New Delhi) = 2017 (9) TMI 81 - CESTAT NEW DELHI ; SMS Infrastructure Ltd -vs- Commissioner, Central Excise, Nagpur, 2017 (47) STR 17 (CESTAT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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