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TMI Blog2023 (1) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Regulations, 2018. 1.1 At the outset, we would like to make it clear that the provisions of the Central Goods and Services Tax Act, 2017 (the CGST Act, for short) and the West Bengal Goods and Services Tax Act, 2017 (the WBGST Act, for short) have the same provisions in like matter except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean reference to the corresponding similar provisions in the WBGST Act. Further to the earlier, henceforth for the purposes of these proceedings, the expression 'GST Act' would mean the CGST Act and the WBGST Act both. 1.2 The applicant submits that M/s Rites Limited, a Public Sector Undertaking owned by the Ministry of Railways, Government of India for and on behalf of the Eastern Coalfields Limited, Jhanjra Area, P.O. Loudoha, Dist-Paschim Bardhaman, PIN-713363 has awarded the applicant the following work vide Letter of Acceptance issued on 02.03.2021: "Construction of earthwork in formation, Major & Minor Bridge, ROB, Drain, P.Way Linking work including supply of Track Ballast, P. Way Fittings, Points & Crossings, Derailing Switches etc., Constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnal Electrification, Installation, Testing & Commissioning of 140MT In-Motion Weigh Bridge and other allied works etc., (Pkg-III) in connection with the construction of New Railway siding at Jhanjra Area, ECL, Dist. Paschim Bardhaman, West Bengal. 2.3 The scope of work, according to the Letter of Acceptance dated 02.03.2021 issued by M/s RITES Limited includes: (a) Schedule 1-Formation Work; (b) Schedule 2-Minor & Major Bridge, Retaining Wall, Wharf Wall, Drain and allied works etc.; (c) Schedule 3-Supply of P.Way fittings & Channel Sleeper; (d) Schedule 4-Supply of Point & Crossing; (e) Schedule 5-P.Way Work; (f) Schedule 6-Road Work; (g) Schedule 7-Civil Works for Building Construction; (h) Schedule 8-Supply & Installation of Weigh-bridge; (i) Schedule 9-Any other Unforeseen Items; (j) Schedule 10- Electrical works for Weigh Bridge, TMS Building, FOIS Building, Sub Station, Building, DG Room, Pump Room, Panel Building, Augmentation of TRD Depot, Switching Post, Switch panel room etc. 2.4 The applicant contends that the aforesaid work may be considered as composite supply of works contract as defined in clause (119) of section 2 of the GST Act which is suppl ..... 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The applicant is of the view that the work being executed by him is in the nature of new works and, thus, would be covered under the aforesaid definition of original works. 2.8 Further, the applicant, in support of his contention that the instant work is pertaining to railways, has referred to sub-section (31) of section 2 of the Railways Act, 1989 which is reproduced herein under: "railway" means 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 purposes of, or in connection with, a railway; (c) all electric traction equipment, power supply and distribution installations used for the purposes of, or in connection with, a railway; (d) all rolling stock, stations, offices, warehouses, wharves, workshops, manufactories, fixed plant and machinery, roads and streets, running rooms, rest houses, institutes, hospitals, water works and water supply installations staff dwellings and any other works constructed for the purpose of, or in connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer concerned from the revenue is reproduced in verbatim: 3.1 It appears from the Work order of M/s RITES Limited received a Works Contract from M/s Eastern Coalfields Limited a Private Limited Company owned by M/s Coal India Limited, Ministry of Coal, Government of India for constructing a new Railway siding at their Jhanjra Area of ECL, Dist - Paschim Bardhaman, West Bengal and M/s RITES Limited a Public Undertaking Company owned by Indian Railway sub-contracted the same work to the applicant i.e., M/s Triveni Engicons Private Limited holder of GSTIN 19AABCT4589R1ZA. M/s Eastern Coalfields Limited constructing a private railway siding for carriage of coal from their site at Jhanjra Area, Dist - Paschim Burdwan, West Bengal to all over India and the said work is "commercial" in nature. However, meaning of "railway" defines in Section 2(31) of The Railways Act, 1989 - the said definition states that 'Railways' means a railway, or any portion of a railway, for the public carriage of passengers or goods. Thus, the exclusion is available only for railway sidings which are constructed for public carriage of passengers or goods. In the present case railway sidings constructed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptance of M/s RITES Limited issued to M/s Triveni Engicons Private Limited holder of GSTIN- 19AABCT4589R1ZA, registered address at Flat No-2B, 2nd Floor, Rishikesh Apartment, Ashutosh Chowdhury Avenue, Kolkata- 700019 that the Work Order is composite in nature. Value of Supply of Goods or Service cannot be divided from the Work order / letter of acceptance. It appears from the schedule from 1 to 10 with description of schedule of work of the Letter of Acceptance wherein value of Goods and service not mentioned separately. So, in the above discussion it appears that the Work awarded by M/s RITES Limited to M/s Triveni Engicons Private Limited can covered under the definition of Works Contract as defined under Section 2(119) of the CGST Act, 2017. 3.3 The rate of GST for the construction of rail infrastructure facilities to other than railways falls under the definition of Sl. No. 3(xii) vide Notification No 11/2017-Central Tax (Rate) dated 28/06/2017 as amended by Notification No.20/2017- Central Tax (Rate) dated 22/08/2017, Notification No.24/2017-Central Tax (Rate) dated 21/09/2017, Notification No.31/2017-Central Tax (Rate) dated 13/10/2017 and Notification No.01/2018-Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immovable property i.e., any work shall be treated as works contract if the same is done for any immovable property and involves transfer of property in goods in the execution of such contract. The term 'immovable property' has not been defined under the GST Act. Therefore, reference may be drawn to other law which inter alia includes section 3(26) of General Clauses Act, 1897 which defines 'immovable property' as under: "immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth." Further, for the purpose of interpretation of the expression "attached to the earth", section 3 of the Transfer of Property Act, 1882 may be referred to which reads as follows: "attached to the earth" means- (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached; In the case of Triveni Engineering & Industries Ltd. & Anr. Vs. Commissioner of Central Excise & Anr, the Hon'ble Supreme Court of India has observed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said work can be considered as 'original works': 4.6 The term 'original works' has been defined in clause 2 (zs) of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 which reads as under: "original works" means- all new constructions; (i) all types of additions and alterations to abandoned or damaged structures on land that are required to make them workable; (ii) erection, commissioning or installation of plant, machinery or equipment or structures, whether pre-fabricated or otherwise; In the instant case the applicant executes construction work in connection of New Railway Sidings at Jhanjha Area of Eastern Coalfield Limited. Thus, we accept the contention of the applicant that the work can be considered as original works as defined in clause 2 (zs) of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017. Whether the work can be considered as works contract pertaining to railways: 4.7 We have already decided the issue that the scope of work, as outlined in the Letter of Acceptance issued by RITES Limited to the applicant, falls under the category of 'works contract' as defined in clause (119) of section 2 of the GST Act and also qualifies to be an ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of constructing a new Block hut/Block Station and impact of splitting of block section on train operation have been examined to the satisfaction of the Zonal Railway and are certified by the COM of the Railway.[Para 6.10] o Responsibilities of Siding Owner- (i) The siding owner shall have the option to maintain the track etc. of his siding either himself or through the Railways. The owner shall enter into an Agreement with the concerned Division regarding the Operation &maintenance of his siding. (ii) Siding owner shall, at all times, maintain his siding properly, so that train operations are not hindered. (iii) Siding owner shall be liable to pay damage costs, as advised by the Division, if the rolling stock of the Railway is derailed/damaged inside the siding due to bad maintenance conditions.[Para 9.1] o Handling of wagons in Sidings: (i) The siding owner shall ensure that no railway wagon gets damaged during loading/unloading in his siding. For damage & deficiencies caused due to the fault of the siding owner, damage & deficiency charge shall be raised as per the extant rules.[Para 9.5.2] o Maintenance of S&T Assets- Maintenance of Signal & Telecommunication ..... X X X X Extracts X X X X X X X X Extracts X X X X
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