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TMI Blog2021 (3) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... vide for that all the tax paid on inputs should be available as credit. Some credits have been denied under Section 17 in the Act itself and to allow flexibility, the Act provides that restrictions can be placed on availability of credit - under the GST regime, more input tax credit is available to tax payers along the entire supply chain as compared to the previous tax regime. Further, the transitional provisions under the CGST Act provide adequate credit of taxes accumulated under the erstwhile taxation regime to taxpayers in the GST regime. The legislative intent flows from the sovereign power given in the CGST Act, 2017 vide Section 16(1) of the Act. As per said provision input tax credit is allowed to a registered person subject to such conditions and restrictions as the Government thinks proper, against the supply of goods or services received which are used or intended to be used in the course or furtherance of his business. Here it is pertinent to mention that construction of an immovable property (hotel/restaurant or banquet hall) is a different business and hotel accommodation or renting of banquet hall is a different business. Thus supply chain is not the same for bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictional Officer : None Concerned Officer : Mrs. Preeti Manral, DC (SGST) RULING 1. This proceeding is initiated in view of the directions contained in the order dated 11.11.2020 passed by the Appellate Authority for Advance Ruling for the State of Uttarakhand Goods Service Tax against appeal no. UKGSTARA 02/03/14-08-2020/2020-21 filed by M/s. Vardhan Holidays, Village-Shivlalpur Pandey, Kahipur Road, Ramnagar, Uttarakhand (here in after referred to as 'the applicant') having Registration No. 05AAOFV8927H1ZL. 2. The applicant had filed an application under Sub-Section (1) of Section 97 of the CGST/SGST Act, 2017 (herein after referred to as the Act ) and the rules made there under for seeking advance ruling on the following question:- a) Whether input credit on goods/services received for construction of hotel building is available; b) Whether input credit on work contract service received for construction of hotel building is available; c) Whether input credit on goods/services received for construction of banquet hall which is rented further to customer is available; d) Whether input credit on work contract service received for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IE Pantnagar, Rudrapur, Udham Singh Nagar. The applicant was also granted opportunity of personal hearing which was attended by them. 7. During the course of hearing held on 15.06.2020, Shri Ashwarya Sharma, Advocate reiterated their submissions filed vide letter dated 26.05.2020 and also submitted that the appeal in the matter of CCE Vs Safari Retreats (P) Ltd Others was only admitted by the Hon'ble Supreme Court and there was not stay of said judgment and accordingly the decision of Hon hie Odisha High Court was binding precedent as on date. 8. On going through the submissions put forth by the applicant and provisions of the Section 98(2) of the Act, this Authority of Advance Ruling vide Ruling No. 03/2020-21 dated 08.7.2020 rejected the application of the applicant being the matter sub-judice. 9. Being aggrieved with the above order, the applicant preferred an appeal before the Appellate Authority for Advance Ruling for the State of Uttarakhand Goods Service Tax on 14.08.2020 on following grounds:- a. The impugned ruling dated 08.07.2020 of the Authority for Advance Ruling of the State of Uttarakhand is a non-speaking order and violates the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-particular nouns. The is called definite article and a/an is called the indefinite article. The use of the article 'an' before the noun applicant is meant to denote non-specific In other words, the term an applicant' has to mean any applicant and not a particular applicant Thus, the interpretation of an applicant made by the AAR in their Ruling cannot be faulted. However, having said that we find that the impugned Ruling is nonspeaking and appears to be based on hearsay since Learned AAR have not discussed anywhere about having gone through the referred writ application of M/s Rosewood Hospitality (P) Ltd. and the basis of their inference that the issues raised by the appellant are covered by the said writ. In fact, in spite of being pointed out by the appellant about the show cause notice mentioning only two issues in common with the writ, it appears that the applicant was summarily rejected without in depth scrutiny. We, therefore, are of the view that the Learned AAR are required to examine referred cases and all the six issues individually on merits and pass a detailed speaking order If they are not sub-judice. 11. Thus in view of above findings Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition to large size rooms along with a fully equipped pantry in each room. The activity undertaken by the Petitioner is taxable under Goods and Services Tax (GST). In the course of furtherance of its objectives, the Petitioner has undertaken effective steps towards setting up two wings at Bhimtal which are to be used by them for provision of taxable output supply liable to GST. The construction of the two wings is undertaken by the Petitioner on its own account, for furtherance of Petitioner's business. For construction of these wings, the Petitioner has availed services from a works contractor who is undertaking construction of the immovable property for the Petitioner which is to be used by them in the course or furtherance of business. The Petitioner also procures multiple goods and services including the works contract service from various suppliers during construction of immovable property. The services so procured are used directly by the Petitioner in completion of construction of the immovable property. Petitioner also procures numerous goods and Services likely to be used by them in relation to construction i.e. to make the room ready for occupati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er which could also hinder his future viability on implementing such projects wherein the credits stand restricted. The Petitioner wishes to submit that the High Court of Orissa In Safari Retreats Private limited W P. (C) 20463/2018, challenge the Impugned Provisions has permitted availment of ITC to the Petitioner in order to account of such denial. The High Court while deciding the writ petition has gone in detail with regards to the intention of the Impugned Provisions and the way these Impugned Provisions need to be deduced and analysed. Because the restriction of benefits as prescribed under the provisions of Section 16 of the CGST Act and UKGST Act as notified is without any logic, unreasonable, irrational and against the established tenets of law. The restriction applies to construction undertaken on own account even when used in course or furtherance of business. A developer of a real estate project is permitted to avail credit of the GST paid on inputs and input services as the construction is undertaken on account of others. The notification prescribes a reduced rate of tax where no ITC is availed. However, construction when undertaken on own accord qualifies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit is available on works contract services received as an input service for further supply of works contract services. By virtue of the same, if the contractor were to engage a sub-contractor, the contractor will be eligible to avail input tax credit on the invoice raised by the subcontractor. Thus, in the same chain of flow of services, the Petitioner is denied input tax credit while the same is available to the contractor. The hardship to the Petitioner is compounded by the fact that the Petitioner is subject to 28% GST while provision of works contract services is subject to a levy of 18% GST. Despite the Petitioner contributing more to revenue, it has denied the benefit of availing input tax credit. In the present case there is no rationale brought out by the Respondents behind denying input tax credit to the Petitioner. It is submitted that input tax credit is available on works contract services utilized as an input for further provision of output service i.e. works contract services. In a similar vein, the Petitioner too utilizes works contract services and provides an output of hospitality services. The Petitioner wishes to highlight that the Impugned Provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid writ petition. The applicant in their application has raised following questions:- a) Whether input credit on goods/ services received for construction of hotel building is available; b) Whether input credit on work contract service received for construction of hotel building is available; c) Whether input credit on goods/services received for construction of banquet hall which is rented further to customer is available; d) Whether input credit on work contract service received for construction of banquet hall which is rented further to customer is available; e) Whether the expression plant machinery would include 'hotel/banquet building' under section 17 and accordingly input credit on work contract service or any goods/service received for construction of such hotel/banquet hall is available; f) Whether specified goods viz. Lifts, sanitary items, underground cables etc. fall under the expression plant machinery whether input credit on the same and freight paid to GTA on such items under RCM, Repair maintenance of aforesaid specified goods and Architect services etc. is available. Here we find that first four question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide its output services. Majority of the goods and services which are purchased/received for such construction are taxable under the Central Goods and Services Tax Act, 2017 ('Central Act') and the Uttarakhand Goods and Services Tax Act, 2017 ('State Act') and/or the Integrated Goods and Services Tax Act, 2017 ('Integrated Act'), as the case may be and the Applicant has to incur huge cost on these purchases/expenses which also includes huge amount of Central Goods and Services Tax ('CGST')/State Goods and Services Tax on such ('SGST) and Integrated Goods and Services Tax purchases/expenses. Therefore, in view of section 16, Applicant being a registered person under GST is statutorily entitled to avail benefit of taking credit of input tax charged on supply of goods and services which are consumed or utilized for the construction of the aforesaid property and set off the same against CGST/SGST payable on output services provided by it to its customers from such property as there is no break in the supply chain and receipt of consideration for output services and the tax payable thereon are the direct and inevitable consequence of the construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi Administration- AIR 1965 SC 871 2. Motor Owners Insurance Co Ltd v. JK Modi- AIR 1981 SC 2059 3. Ambica Quarry Works v. State of Gujarat- AIR 1987 SC 1073 It is settled law that the provisions of a Statute should not be interpreted in a manner so as to make any one word or provision as otiose or a dead letter. In this regard reliance is placed on the below mentioned decisions of the constitutional courts:- 1. Quebec Railway, Light, Heat Power Co. Vs Vandry- AIR 1920 PC 181 2. Union of India vs Hansoli Devi- AIR 2002 SC 3240 3. Ghanshyamdas vs Regional Asstt. Comm. Sales Tax-AIR 1964 SC 766 4. Chloro Controls India Pvt Ltd. vs Severn Trent Water Purification Inc. Ors.-2013 1 SCC 641 5. Deputy Chief Controller of Imports and Exports, New Delhi vs. Kosalram and Others-[(1970) 3 SCC 82] The words on his own account used in section 17(5) (d) should be understood to mean to apply to only those situations wherein the benefits of immoveable property are enjoyed by the person himself who builds the immoveable property and to no other case. In other words, where the immoveable property is constructed for enjoyment by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislature. In this regard reliance is paid on the following decisions:- 1. Sneh Enterprises v. CCE, New Delhi- 2006 202 ET SC 2. Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate-AIR 1958 SC 353 3. New India Sugar Mills Ltd u. Commissioner of Sales Tax, Bihar-AIR 1963 SC 207 4. Union of India vs. Suksha International 6b Nutan Gems Anr- 2010-TIOL-111-SC-CUS 5. Srinathji Ispat Ltd. Vs. Commissioner of Central Excise and Services Tax, Ghaziabad- 2015-TIOL-2355-CESTAT-DEL 6. Commissioner of Customs (Preventive), Mumbai vs. M/s M Ambalal 6b Co-20 10-TIOL-111-SC-CUS 7. Collector of Central Excise Etc vs The Himalayan Cooperative Milk Product Union Limited Etc- AIR 1963 SC 1207 8. Commissioner of Sales Tax vs Industrial Coal Enterprises- (1999) 2 SSC 607 The primary section for granting Input Credit under GST is section 16 which provides for the eligibility of taking Input Credit, and as per which there is no doubt regarding the eligibility of Applicant to take Input Credit on all goods or services which are used or intended to be used in the course or furtherance of its business. It is only due to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed of the property after the completion certificate is granted and in case the property is sold prior to completion certificate, he would not be required to pay GST. But here he is retaining the property and is not using for his own purpose but he is letting out the property on which he is covered under the GST, but still he has to pay huge amount of GST, to which he is not liable. In that view, of the matter, in our considered opinion the provision of Section 17(5) (d) is to be read down and the narrow restriction as imposed, reading of the provision by the Department, is not required to be accepted, in as much as keeping in mind the language used in (1999) 2 SCC 361 =2002-TIOL-149-SC-CX-LB (supra), the very purpose of the credit is to give benefit to the assessee. In that view of the matter, if the assessee is required to pay GST on the rental income arising out of the investment on which he has paid GST, it is required to have the input credit on the GST, which is required to pay under Section 17(5)(d) of the CGST Act. A similar petition is also filed in the Punjab and Haryana High Court in the matter of DLF Cyber City Developers Ltd vs Union of India And Others-201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the higher tiers . It is submitted that the judgment in Safari Retreats (supra), reading down Section 17(5)(d) of the Central Act, which being a parliamentary legislation, will apply throughout the territory of India, unless and until the same is stayed by the Supreme Court or there is any contrary decision for the same from the jurisdictional High Court. It is now settled law that once an authority higher than the Tribunal has expressed an opinion on an issue, the Tribunal has to respectfully follow the same even though that decision may be of a non-jurisdictional High Court. So far as the business of providing Hotel Accommodation or Banquet Hall Services is concerned the same cannot be provided without construction of building and construction of building holds the paramount importance in providing such services and the Applicant in the instant case would not be in a position to conduct his business operations without the said building. Therefore, in the facts of the current case and the context of business operations involved, one can safely arrive at the conclusion that said building is cleanly covered by the expression 'equipment', 'machinery' an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting machinery or other apparatus to run a factory is different from the hotel building, which is specially designed, suiting to the hotel requirements. So, specially erected building cannot be said to be a mere setting or premises. No hotel can function without a suitable building satisfying the norms of hotel. Accordingly, the Input Credit of goods or services received by the Applicant in setting up of his hotel/banquet building should be allowed as the same is nothing but plant and machinery for the Applicant. Following case laws is also relied upon: M/s Vodafone Essar South Ltd vs Commissioner of Central Excise- 2019-TIOL-3037-CESTAT-ALL Applicant is eligible to claim Input Credit for Specified Goods and Services namely Sanitary items, Underground cables, Electrical Boards switches, Lift, Repair maintenance of these specified goods, Freight paid against GTA on Purchase of these goods and Interior design Architect service on two grounds, firstly these goods or services are not used for construction of any immoveable property and secondly they are very well covered under the meaning of the term plant and machinery and these not hit by the bar Imposed under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Sugar Mill vs Commissioner of Central Excise Delhi III-2011 (270) E.L.T. 465 SC. That if any article or goods are used by a person in his business without which it would not be possible to conduct the business operations, the same would definitely fall within the meaning of the term apparatus, equipment or machinery and thus be considered as plant and machinery'. Accordingly, in so far as the business of providing Hotel Accommodation or Renting of Banquet Hall Services is concerned the same cannot be provided without such Specified Goods and thus installation of such goods is extremely important and integral in providing such services and the Applicant in the instant case would not be in a position to conduct his business operations without the said goods. Therefore, in the facts of the current case and the context of business operations involved, one can safely arrive at the conclusion that said Specified Goods are clearly covered by the expression 'equipment', 'machinery' and 'apparatus' used in the definition of the expression plant and machinery'. Contention of the Concerned Officer (Mrs. Preeti Manral, Dy. Commissioner, SGST): 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our views on the issues raised by the applicant. We would like to refer the relevant provisions of the Act which have direct effect on the case in hand. Section 16(1) of the Act stipulates that:- Section 16. Eligibility and conditions for taking input tax credit.- (1) 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. From the wording of Section 16(1) of the CGST Act we find that this section empowers the Central Government to impose conditions and restrictions on availing input tax credit. Further, Section 17(5)(c) 17(5)(d) of the Act also stipulates that:- Section 17. Apportionment of credit and blocked credits.- (5) Notwithstanding anything contained in sub-section (1) of section 16 and sub- section (1) of section 18, input tax credit shall not be available in respect of the following, namely:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sold, costing whereof is done keeping in view the expenses involved in the manufacture of such goods phis the profits which the manufacturer intends to earn. Insofar as costing is concerned, element of expenses incurred on raw material would be included. In this manner, when the final product is sold and the VAT paid, component of raw material would be included again. Keeping in view this objective, the Legislature has intended to give tax credit to some extent. However, how much tax credit is to be given and under what circumstances, is the domain of the Legislature and the courts are not to tinker with the same. This proposition is authoritatively determined by this Court in series of judgments. We may refer to the judgment in Godrej Boyce Mfg. Co. Pvt. Ltd. Ors. v. Commissioner of Sales Tax and Others. The Hon'ble Supreme Court, in its judgment in the case of Indian Oil Corporation Ltd. Vs State of Bihar (TS-347-SC-2017-VAT] while dealing with the issue of set off of VAT against entry tax, the court held that,- ...no assessee can claim set off as a matter of right and levy of Entry Tax cannot be assailed as unconstitutional only because set off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed, as policy call of the Government, given effect through legislation, cannot be obtained through judicial review. In the judgment of JCB India Ltd. Vs. Union of India 2018-TEDL-23-HC-Mum-GST, the Hon'ble Court held- CENVAT credit is a mere concession and it cannot be claimed as a matter of right- credit on inputs under the existing law itself is not absolute but a restricted or conditional right. If the existing law itself imposes condition for its enjoyment or availment, then, it is not possible to agree with the Counsel that such rights under existing law could have been enjoyed and availed of irrespective of the period or time provided therein- The period or the outer limit is prescribed in the existing law and the Rules of CENVAT credit enacted thereunder- In the circumstances, it is not possible to agree with the Counsel appearing for the petitioner that imposition of the condition vide Clause (iv) is arbitrary, unreasonable and violative of Articles 14 and 19(1) (9) of the Constitution of India- if right to availment of CENVAT credit itself is conditional and not restricted or absolute, then the right to pass on that credit cannot be claimed in absolute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent is clear from aforesaid provision that if input supply of goods or services are received for furtherance of same business for which these supplies are received than only input tax credit can be allowed. The wordings of Section 16 (1) ibid i.e. any supply of goods or services or both which are used or intended to be used in the course or furtherance of his business does not mean that any supply of goods or services received for the purpose of one business can be used for furtherance of another business. Further, Section 17(5)(d) provides that no input tax credit shall be available in respect of goods or services or both received by a taxable person for construction of an immovable property (other than plant machinery). Thus, the legislative intent of the statute is clear from the very fact that any registered person is eligible for taking input tax credit unless and until he is restricted by conditions laid down in the law in this respect. One of such condition is prescribed vide Section 17(5)(c) (d) of the said Act. Moreover, there are catena of judgments of the Hon'ble Courts which have underlined the fact that ITC is not a right of the taxpayer as discussed in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etation of law by the Hon'ble Supreme Court which is binding on all the courts of India. We also rely on the following judgments: As provided in Article 141 of the Constitution and as reiterated by the Hon'ble Supreme Court in the case of Bengal Immunity Co. v. State of Bihar - A.I.R. 1955 S.C. 661 that,- There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced of its error and its baneful effect on the general interests of the public. Article 141 which lays down that the law declared by this Court shall be binding on all Courts within the territory of India quite obviously refers to Courts other than this Court. The corresponding provision of the Government of India Act, 1935 also makes it clear that the Courts contemplated are the Subordinate Courts Appeal in case of M/s Rosewood Hospitality (P) Ltd. is pending in the Hon'ble High Court of Uttarakhand on the similar issue. Further, Hon'ble High Court of Odisha's decision in case of Safari Retreats (supra) has also been challenged before the Apex Court which is still pending decision. Section 98(2) of the CGST Act, 2017 prescribes that- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from its earlier opinion if the situation so warrants. That is binding is, of course, the ratio of the decision and not every expression found therein. (b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction. The Supreme Court, in Shenoy Co. Vs. CTO (1985) 155 ITR 178 , has held that the law laid down by it (SC) is binding on all, notwithstanding the fact that it is against the State or a private party; it is binding even on those who were not parties before the court. Also as per Article 141 of the Constitution of India the law declared by the Supreme Court shall be binding on all courts with in the territory of India. The Five Judges Constitution Bench of Hon'ble Supreme Court in case of Central Board of Dawoodi Bohra Community v. State of Maharashtra -(2005)2 SCC 673 has observed that, The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength . The Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial discipline have to be followed by the Courts subordinate to the higher court. Failure to do so would result in judicial mayhem. Subordinate courts are bound to follow the judgments unless there be a subsequent Judgment of a Higher Court which has taken a view different from the view earlier expressed. From the above judgments it can be inferred that judgment passed by higher court can only be followed unless and until it is challenged in the court superior than it. 25. However from the plain reading of the provisions of Section 17(5)(c) of the Act, we are of the view that input tax credit is disallowed to a works contractor if he supplies his services for construction of an immovable property (other than plant machinery) and if he is not a sub-contractor. Further, Section 17(5)(d) of the Act does not allow credit of input tax paid on goods or services which are received by a person who construct immovable property on his own account i.e. for self use. Since there is no service recipient of the said property till it comes into its complete shape, hence no credit is allowed. After completion of construction of hotel/banquet hall, the applicant is not going to sell it b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;plant and machinery' provided under Notification F. No. 2(2)/2017-SPS dated 23-Apr-2018 issued to provide Industrial Development Scheme for Himachal Pradesh (HP) Uttarakhand 2017 issued by the Government of India to boost industrialization in the said states. As per para 4.4 of the said Scheme, the term plant and machinery is defined to include inter-alia cost of construction of building. The relevant para is reproduced below. ... 4.4 Plant and Machinery for the service sector industrial unit shall include cost of construction of building and all other durable physical assets basic to the running of that particular service industry but exclude cost of land and consumables, disposables or any other item charged to revenue. Above scheme was brought by the government for the development of a few Himalayan states. To progress the economy of these states, Government has provided them some facilities including considering the cost of construction of building in the Plant Machinery. It doesn't mean definition of Plant machinery has been generalized by the legislature. Definition of Plant Machinery changes according to the statute laid down as is explained under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the immovable property which is a civil structure or building is not available to the applicant and hence blocked. AAR - MADHYA PRADESH in case of Jabalpur Hotels Pvt. Ltd. (Order No. 10/2020 dated 08.06.2020) held that, As per Oxford References The equipment required to operate a business. Capital allowances are available for plant and machinery although neither is defined in the tax legislation. This defines plant and machinery as whatever apparatus is used by a businessman for carrying on his business - not his stock in trade which he buys or makes for resale: but all goods and chattels, fixed or moveable, live or dead, which he keeps for permanent employment in the business. Subsequent cases have been largely concerned with the distinction between plant actively used in a business, and so qualifying for capital allowances, and expenditure on items that relate to the setting up of the business, which do not so qualify . Further, a lift comprises of components or parts (goods) like lift car motors, ropes, rails, etc. and each of them has its own identity prior to installation and they are assembled/installed to create the working mechanism called lift. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s C.C.E., 2000(40) RLT 1 (SC)- 2000(120) ELT 273 , the Apex Court held that after assembling, on completion of process of erection, the item becomes a part of the building or an immovable property. In the case of Quality Steel Tubes (P) Ltd. vs C.C.E., U.P. on 9 December, 1994 it was held by the Apex Court that,- Goods which are attached to the earth and thus become immoveable do not satisfy the test of being goods within the meaning of the Act nor it can be said to be capable of being brought to the market for being bought and sold. Therefore, both the tests, as explained by this Court, were not satisfied in the case of appellant as the tube mill or welding head having been erected and installed in the premises and embedded to earth they ceased to be goods within meaning of Section 3 of the Act. In the case of Otis Elevator Company (India) vs C.C.E, on 27.08.2002 and 2003 (151) ELT 499 Bom , the Mumbai HC observed that,- Having heard the rival contentions and having examined all the citations referred to hereinabove, we are clearly of the opinion that the same shall apply to the facts of this case in full force and item in question being immovable property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. Rule2(a) of the Rules for the Interpretation of Central Excise Tariff will be attracted as the guiding factor is capability of being marketed in the original form and not whether it is actually dismantled or not, into its components. Each case will therefore have to be decided keeping in view the facts and circumstances, particularly whether it is practically possible (considering the size and nature of the goods, the existence of appropriate transport by air, water, land for such size, capability of goods to move on self propulsion -ships- etc.) to remove and sell the goods as they are, without dismantling into their components. If the goods are incapable of being sold, shifted and marketed without first being dismantled into component parts, the goods would be considered as immovable and therefore not excisable to duty. Further para (iv) of Point No. 5 of said order clarifies that,- (iv) Lifts and escalators. (a)Though lifts and escalators are specifically mentioned in sub heading 8428.10, those which are installed in buildings and permanently fitted into the civil structure, cannot be considered to be excisable goods. Such lifts and escalators have also been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es or both received for construction of these items together with construction of hotel/banquet hall will also not be available to the applicant, however this aspect of allowing input tax credit under Section 17(5)(c) (d) is pending decision before Hon hie High Court of Uttarakhand in case of M/s Rosewood Hospitality (P) Ltd and before Hon hie Supreme Court in case of M/s Safari Retreats Pvt. Ltd (supra). We also find that Repair Maintenance itself is not a construction service. Roll of repair or maintenance starts when a building or any immovable property comes into existence. Repair 8s Maintenance is done on the already constructed buildings, civil structures etc. Further, input tax credit of the GST paid on Repair Maintenance service supplied for repair or maintenance of an immovable property is not denied under CGST Act. Therefore input tax credit of the GST paid on Repair Maintenance service is allowable under CGST Act. ORDER In view of the above discussion findings we hold as under: i) We refrain ourselves from answering to question no. a) to d) raised by the applicant as the matter is sub-judice. ii) We hold that Lifts, Sanitary items and under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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