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TMI Blog2023 (5) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness. However, the sub-clauses specifically exclude in both the cases, plant and machinery. Sand Mill and Spray Dryer - HELD THAT:- On going through the two photographs, it is found that claim of ITC by the applicant in so far as the foundation and structural support for the Sand mill Spray dryer is covered by the explanation 2 to Section 17(5) and hence, the applicant is eligible for the ITC provided it is not capitalized. However, the eligibility is only in respect of the foundation and the structural support. The photograph reveals a structure/shed, erected on the left side of the Sand mill and spray dryer. This structure/shed would clearly fall within the ambit of civil structure and stands excluded from the expression 'plant and machinery'. Hence, the ITC in respect of this structure/shed is blocked in terms of section 17(5) of the CGST, 2017. HAG (Hot Air Generating machine and equipment] - HELD THAT:- On going through the photograph, it is found that claim of ITC by the applicant in so far as the foundation and structural support in respect of the HAG is concerned is covered by the explanation 2 to Section 17(5) and the applicant is eligible for the IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-5-2023 - MILIND KAVATKAR AND AMIT KUMAR MISHRA, MEMBER Present for the applicant : Advocate Vipul Shah, Shri Pankaj Dhamecha and Shri Devendra Patel. Brief facts: Colourband Dyestuff P Ltd, Block No. 243, At Post Ekalbara, Tai. Padra, Ekalbara, Vadodara, [for short- applicant'] is registered under GST and their GSTIN is 24AAACC9898F1ZC. 2. The applicant is engaged in the activity of manufacturing of dyes. The applicant procures intermediate as raw material in crude form which is chemically processed through HAG machineries ie Hot Air Generation, Liquid raw material is being converted into powder form which is known as dyes ie finished product which is applied to textile products. 3. The applicants plant is located at Ekalbara,, Ta. Padra, Vadodara. They are expanding have acquired new land viz plot no. 109/110 at GIDC Sykha, Dist. Bharuch. The applicant intends to set up the factory at one premise using both the plots have started setting up of the new factory. 4. The manufacturing process flow chart is provided as Annexure 1 to their application. For manufacturing Dyes, they require various plant and machinery [for short - 'P M'], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023 wherein Advocate Vipul Shah, Shri Pankaj Dhanecha and Shri Devendra Patel, appeared on behalf of the applicant and reiterated the facts as stated in the application. During the course of personal hearing they submitted additional submission along with photographs to substantiate their case that they are eligible for the credit. Discussion and findings 9. At the outset, we would like to state that the provisions of both the CGST Act and the GGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the GGST Act. 10. We have considered the submissions made by the Applicant in their application for advance ruling as well as the submissions made during the course of personal hearing and the departmental comments received in the matter. We have also considered the issue involved, the relevant facts the applicant's submission/interpretation of law in respect of question on which the advance ruling is sought. 11. Before adverting to the submissions made by the applicant, we would like to reproduce the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, where it is obligatory for an employer to provide the same to its employees under any law for the time being in force, (c) works contract services when supplied for construction of an immovable property (other than plant and machinery) except where it is an input service for further supply of works contract service: (d) goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business. Explanation.-For the purposes of clauses (c) and (d), the expression ''construction includes re-construction, renovation, additions or alterations or repairs, to the extent of capitalisation, to the said immovable property; (e) goods or services or both on which lax has been paid under section 10; (f) goods or services or both received by a non-resident taxable person except on goods imported hy him: (g) goods or services or both used for personal consumption; (h) goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples; and (i) any tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foundation to earth is made as per load requirement; that in the entire structure there is no walls, no separate office arrangement, no washroom etc.. ETP [Effluent Treatment Plant] ETP is a mandatory requirement as per Pollution Control Board; it comprises of various tanks made of civil structure; this civil structure is the plant; it converts waste crude liquid which is to be flowed outside the premises to store liquid chemical waste. ETP is constructed through various box structure only. Transformer DG set is independently and separately appearing on structure fixed to earth by foundation; Near adjourning sub-station building of civil structure is created to cover electric control panel. 14. The applicant has submitted the photographs of the structure. The same is scanned reproduced below for ease of reference: 15. The applicant has in his additional submissions, submitted certificate dated 13.3.2023 by Padaria Consultants (P) Ltd, Chartered Engineer. The relevant observations as per the certificate states as follows: Sand Mill and Spray Dryer Machineries Equipments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes- (i) land, building or any other civil structures; (ii) telecommunication towers; and (iii) pipelines laid outside the factory premises. 17. Further, we find that as per the definition, Plant and Machinery means : apparatus, equipment, and machinery, which is fixed to earth by foundation or structural support, that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes - land, building or any other civil structures; telecommunication towers; and pipelines laid outside the factory premises. 18. On examining the contention of the applicant, read with the certificate of the chartered engineer, a bare look at the photographs provided by the applicant when seen in conjunction to what is mentioned in section 17 ibid, which deals with apportionment of credit and blocked credits, we find that the law is unambiguous as far as ITC is concerned in respect of the P M. ITC is not available in respect of works contract serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n going through the four photographs, we find that these are basically tanks which are civil structure. Now in terms of the discussion supra, expression 'plant and machinery' excludes civil structure. Therefore, when the ETP itself has been held to be a civil structure, the question of allowing ITC in respect of its foundation and structural support does not arise. Therefore we hold that the applicant is not eligible for the ITC in respect of the foundation made to install the ETP [effluent treatment plant]. 19.3.2 Our above view is substantiated by the ruling in the case of Synergy Global Steel Pvt. Ltd. [reported at 2021 (48) G.S.T.L. 286 (A.A.R. - GST -Haryana)], wherein it was held as under 4.6 The explanation to Section 17(5)(d) of the GST Act reads as under :- Explanation For the purposes of this Chapter and Chapter VI, the expression plant and machinery means apparatus, equipment, and machinery fixed to earth by foundation or structural support that are used for making outward supply of goods or services or both and includes such foundation and structural supports but excludes - (i) land, building or any other civil structures; (ii) tele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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