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TaxTMI 
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2018 (9) TMI 1106
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....to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, a reference to such a similar provision under the CGST Act/MGST Act would be mentioned as being under the "GST Act" 02. FACTS AND CONTENTION - AS PER THE APPLICANT The submissions, as reproduced verbatim, could be seen thus - "STATEMENT OF THE RELEVANT FACTS HAVING A BEARING ON THE OUESTION(S) ON WHICH THE, ADVANCE RULING IS REQUIRED 1. This Application is being preferred by Precision Automation & Robotics India Limited ("Company"/"Applicant"), a company incorporated in India under the provisions of the Companies Act, 1956 having its registered office at Gat No.463-A,463-B and 464, Pune-Bangalore Highway, Mouje Dhangarwadi, Tal : Khandala, Dist Satara. 4128011[MS]. 2. The applicant is engaged in providing goods and services which qualify as 'supply' as per provisions of the Central Goods and Service Tax Act, 2017 ("CGST Act") and is duly registered thereunder bearing GSTIN 27AABCP2572Q1ZW. 3. The Company is engaged in the business of design, manufacturing, procurement, erec....
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....mbled at site. After installation and assembling of the parts, the Company is required to undertake testing of the car parking system at customer's premises to verify smooth and safe functioning of the same. 6. The erection of a car parking system involves elaborate work and has to be correlated with and tailored, to meet the needs and requirements of a particular building/premises, Therefore, none of the car parking systems can be a readymade assembled unit and its erection cannot be done in a routine manner. 7. For ease of understating of the complex process of installation of Car parking system, we have depicted the same by way of a diagram: Drawing & design of the car parking system is prepared according to the requirement of the customer ¯ Manufacture, build, test, dismantle, packing and supply steps ¯ Buildings specific foundation (either in the basement of building or on land) as per the requirement of the car parking to be installed ¯ Steel structure frame work (and/or RCC support) according to the car parking system is created and installed on the foundation ¯ Various parts such as pellets, control panel, side sliding suspension, operator pan....
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....lysis of a transaction for its qualification as 'works contract' is concerned, it is relevant to note that the concept of *works contract' qua immovability has been subjected to intense judicial scrutiny over the years. Based on the past judicial precedents and relevant provisions; following determinative parameters have been derived for examining the nature of a transaction: * Whether it is a permanent fixture attached to building/land or not; * Whether dismantling of the parts is mandatory for movement or not; * Whether the functionality of the system depends upon its installation or not. In the paragraphs below all the above three parameters are examined in reference to the facts presented by the Applicant. Supply & installation of car parking system is a permanent fixture attached to building/land wherein it is erected 2.3 It shall be noted that the term 'immovable property' has not been defined under the CGST Act. Thus, reference is made to the definition of immovable property under the General Clauses Act, 1987 Black's Laws Dictionary which is as under: "Immovable property shall include land. benefits to arise out of land and things attached to the earth. or perman....
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....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." 2.5 On cumulative reading of the above, it is evident that immovable property means a property that is attached to land and is a part and parcel of land itself. In the present facts, the car parking system is installed either in the building or vacant land. One of the essential requirement of the car parking system is specific foundation and steel structure/civil structure which is erected in the building or on land Thus, after installation, the said car parking system would form part of the building. 2.6 In this regard, we would like to highlight that in terms of the Supreme Court Ruling in the matter of Nahalchand Laloochand P. Ltd vs Panchali Co-operative Housing Society Ltd. [2010 AIR SCW 5549], = 2010 (8) TMI 816 - SUPREME COURT OF INDIA it was inter alia observed that builder cannot se....
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....e goods, though being capable of being sold or shifted without dismantling, are actually dismantled into their components/parts for ease of transportation etc., they will not cease to be dutiable merely because they are transported in dismantled condition. 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." II. Municipal Corporation of Greater Bombay vs Indian Oil co. Ltd [AIR 1991 SC 686] = 1990 (11) TMI 407 - S....
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....ified manner, the immovable property does not come into existence and cannot be made functional. Parts of the immovable property in its singular form Cannot be considered as immovable property. 2.13. In this context, reference is made to the Hon'ble Supreme Court judgment in the case of Kone Elevator India Private Limited Vs. State of Tamil Nadu [2014 (304) ELT 161 (SC)] = 2014 (5) TMI 265 - SUPREME COURT wherein the issue of immovability of lift was discussed. Relevant extract or the judgment is reproduced below: "The lift basically comprises components like lift car, motors, ropes, rails, etc. having their own identity even prior to installation. Without installation, the lift cannot be mechanically functional because it is a permanent fixture of the building having been so designed. These aspects have been elaborately discussed in Otis Elevator (supra) by the High Court of Bombay. Therefore, the installation of a lift in a building cannot be regarded as a transfer of a chattel or goods but a composite contract." 2.14. Reference is also drawn from Hon'ble Supreme Court's decision in the case of Triveni Engineering & Industries Ltd. vs. CCE [2000 (120) ELT 273], = 2000 (8) TMI ....
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.... ELT 321 SC] = 2006 (12) TMI 3 - SUPREME COURT OF INDIA It has been held that assembling of central air conditioning system amounts to immovable property. Craft Interiors Private Limited Vs CCE, Bangalore [2006 (203) ELT 529 SC] = 2006 (10) TMI 2 - SUPREME COURT OF INDIA It has been held that storage units, running counters, overhead unit, rear and side unit, wall unit, pantry unit, kitchen unit are ordinarily immovable and cannot be removed without cannibalizing CCE, Mumbai Vs. Josts Engineering Company Limited [2002 (146) ELT 29 SC] = 2002 (8) TMI 107 - SUPREME COURT OF INDIA It has been held that spray paint booth is considered as immovable property based on the following factors i) the outside portion of the structure is embedded to the earth ii) it can never be dismantled without damaging the portions iii) the system is touching the earth iv) the system cannot work without being installed. CCE, Mumbai IV Vs. Hindustan Max Telecom Private Limited [2008 (224) E.L.T 191 (Bom.) = 2007 (8) TMI 6 - HIGH COURT, BOMBAY The Hon'ble High Court held that the transmission apparatus/equipments installed in BTS site room qualify as immovable goods as without tower, UPS. cable trays, ....
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....Tariff) (SAC) NO. 995466 under Installation Services Group. The entry Of Group NO. 995466 is reproduced herein as under- Group No. Installation Services 995466 Lift and escalator installation services 4.3 From the above it is clear that under GST Regime the manufacturing of Car parking System is covered under HSN code 8428 and the installation and commissioning of the same is covered under SAC code 995466. In the instant matter It is obvious that the applicant generally receive composite order for manufacturing and installation of car parking system. Therefore, the same is to be considered as composite supply as defined under clause (30) of Section 2 of Central Goods and Services Tax Act, 2017. The text of clause (30) of Section 2 of the said Act is reproduced herein as under: SECTION 2. Definitions.- ................. ................. (30) "composite supply" means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply; Illustration: W....
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....rected to convince us about the activity of supply and installation of 'car parking system' being resulting into 'immovable property'. While we see that the jurisdictional officer has offered comments as to the activity being a "composite" supply as defined under clause (30) of section 2 of the GST Act, with the supply of car parking system being the principal supply, we feel inclined to answer the question in the affirmative. Our reasons follow thus - At the cost of repetition, we reproduce the activities that go into supply and installation of 'car parking system' hereinbelow for immediate reference - Drawing & design of the car parking system is prepared according to the requirement of the customer ¯ Manufacture, build, test, dismantle, packing and supply steps ¯ Buildings specific foundation (either in the basement of building or on land) as per the requirement of the car parking to be installed ¯ Steel structure frame work (and/or RCC support) according to the car parking system is created and installed on the foundation ¯ Various parts such as pellets, control panel, side sliding suspension, operator panel, electrical system are installed in the ....
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....onstruction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some Other form) is involved in the execution of the contract. When the activity is to be performed in respect of a pre-existing building or an under-construction building, the plans showing the location of the car parking system, the load-bearing, etc. would have to be got approved from the jurisdictional urban bodies or revenue authorities. Same would also apply to a car parking system to be set up on a vacant plot of land. Such systems have a longevity of existence in terms of the aspect that these are not set up and removed frequently, barring of course the moderations or alterations to it. We have mentioned above that the impugned activity does not involve a supply as a chattel. And hence, it is not the case that in case it is desired to do away with it, one can remove the system and put it into place AS IT IS at another location. The removal would always involve a total dismantling which cannot be without loss or damage. The que....
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....ught to its position and locked against the wall for exerting a force of 240-300 tons to fill up the hole in the furnace. The blast furnace in which the inputs are loaded is a massive vessel of 1719 m cubic metre capacity and the size of its outer diameter is 10.6 metres, and the height 31.25 metres. Hot air at 1200 degrees centigrade is fed into the blast furnace at various levels to melt the raw materials. With a view to protect the shell against heat, the blast furnace is lined with refractory brick of one metre thickness. Thus, the drilling machine has to drill a hole through one metre thickness of the refractory brick lining. The drilling machine as well as the mudgun are erected on a concrete platform described as the cast house floor which is in the nature of a concrete platform around the furnace. The cast house floor is at a height of 25 feet above the ground level. On this platform concrete foundation intended for housing drilling machine and mudgun are erected. The concrete foundation itself is 5 feet high and it is grouted to earth by concrete foundation. The first step is to secure the base plate on the said concrete platform by means of foundation bolts. The base plat....
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....t erection of mudgun and tap hole drilling machine results in erection of immovable property. She noticed the judgment of this Court in Narne Tulaman Manufacturers Pvt. Ltd. (supra) and also noticed the judgment of the Tribunal in Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. v. CCE - 1993 (65) E.L.T. 121; = 1992 (10) TMI 188 - CEGAT, NEW DELHI which held that the issue of immovable property was never raised before the Supreme Court in Narne Tulaman Manufacturers Pvt. Ltd. She found support for her conclusion in the decision of this Court in Municipal Corporation of Greater Bombay & Ors. v. The Indian Oil Corporation Ltd. (1991) Supp. (2) SCC 18; and held that the twin tests laid down by this Court to determine whether assembly/erection would result in immovable property or not were fully satisfied in the facts of this case. She concluded :- "The test laid down by the Supreme Court is that if the chattel is movable to another place as such for use, it is movable but if it has to be dismantled and reassembled or re-erected at another place for such use, such chattel would be immovable. In the present appeal, even according to the finding of the Collector, mudguns and drill t....
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....e permanently been erected without being shifted from place to place. Permanency is the test. The chattel whether is movable to another place of use in the same position or liable to be dismantled and re-erected at the later place? If the answer is yes to the former it must be a movable property and thereby it must be held that it is not attached to the earth. If the answer is yes to the latter it is attached to the earth. If the answer is yes to the latter it is attached to the earth." 22. Applying the permanency test laid down in the aforesaid decision, counsel for the appellant contended that having regard to the facts of this case which are not in dispute, it must be held that what emerged as a result of the processes undertaken by the appellant was an immovable property. It cannot be moved from the place where it is erected as it is, and if it becomes necessary to move it, it has first to be dismantled and then re-erected at another place. This factual position was also accepted by the Adjudicating Authority. 23. The technical member, however, held that the aforesaid decision was of no help to the appellant inasmuch as a leading international manufacturing firm had offered s....
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.... 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." 26. In Mittal Engineering Works Pvt. Ltd. v. CCE - 1996 (88) E.L.T. 622 (S.C.) = 1996 (11) TMI 66 - SUPREME COURT OF INDIA; this Court was concerned with the exigibility to duty of mono vertical crystallisers which are used in sugar factories to exhaust molasses of sugar. The material on record described the functions and manufacturing process. A mono vertical crystaliser is fixed on a solid RCC slab having a load bearing capacity of about 30 tons per square meter. It is assembled at site in different sections and consists of bottom plates, tanks, coils, drive frames, supports, plates etc. The aforesaid parts were cleared from the premises of the appellants and the mono vertical crystalliser was assembled and erected at site. The process involved welding and gas cutting. The mono vertical crystalliser is a tall structure, rather l....
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....- SUPREME COURT OF INDIA This Court observed :- "14. There can be no doubt that if an article is an immovable property, it cannot be termed as "excisable goods" for purposes of the Act. From a combined reading of the definition of 'immovable property' in Section 3 of the Transfer of Property Act, Section 3(25) of the General Clauses Act, it is evident that in an immovable property there is neither mobility nor marketability as understood in the Excise Law. Whether an article is permanently fastened to anything attached to the earth require determination of both the intentions as well as the factum of fastening to anything attached to the earth. And this has to be ascertained from the facts and circumstances of each case." 26. It was also held that the decision of this Court in Sirpur Paper Mills Ltd. v. Collector of Central Excise, Hyderabad - 1998 (97) E.L.T. 3 (S.C.). = 1997 (12) TMI 109 - SUPREME COURT OF INDIA] must be viewed in the light of the findings recorded by the CEGAT therein, that the whole purpose behind attaching the machine to a concrete base was to prevent wobbling of the machine and to secure maximum operational efficiency and also safety. In view of th....
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.... plant, but we are satisfied that having regard to the manner in which these machines are erected and installed upon concrete structures, they do not answer the description of "goods" within the meaning of the term in the Excise Act. Thus, it can be seen that the Hon. Supreme Court while holding the machines as immovable property took into account facts such that the machines could not be shifted without first dismantling them and then re-erecting them at another site. It was also sought to distinguish as to how a concrete base meant just to prevent wobbling of the machine would not place the machine in the category of 'immovable property' as something attached to the earth. We would also look at the decision of the Hon. Supreme Court in the case of Commissioner of Central Excise, Ahmedabad v. Solid and Correct Engineering Works [(2010) 5 SCC 122]. = 2010 (4) TMI 15 - SUPREME COURT The facts in this case were thus - "3. M/s Solid and Correct Engineering Works, M/s Solid Steel Plant Manufacturers and M/s Solmec Earthmovers Equipment are partnership concerns engaged in the manufacture of parts and components for road and civil construction machinery and equipments like Asphalt Drum....
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....d components manufactured by the manufacturing units of the group. According to the notice the process of assembly of the parts and components at the site provided by the purchasers of such plants was tantamount to manufacture of such plants as a distinct product with a new name, quality, usage and character emerged out of the said process. Resultantly the end-product; namely, Asphalt Drum/Hot Mix Plants became exigible to Central Excise duty, which duty Solidmec had successfully avoided. The notice also proposed to levy penalties upon all the five concerns under appropriate provisions of the Central Excise Act." The Hon. Court has very elaborately dealt with the issue and it would be useful to go through the observations - "22. Section 3 of the Transfer of Property Act, 1882 does not spell out an exhaustive definition of the expression "immovable property". It simply provides that unless there is something repugnant in the subject or context 'immovable property' under the Transfer of Property Act, 1882 does not include standing timber, growing crops or grass. Section 3(26) of the General Clauses Act, 1897, similarly does not provide an exhaustive definition of the said e....
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.... especially because the attachment is not permanent and what is attached can be easily detached from the foundation. So also the attachment of the plant to the foundation at which it rests does not fall in the third category, for an attachment to fall in that category it must be for permanent beneficial enjoyment of that to which the plant is attached. It is nobody's case that the attachment of the plant to the foundation is meant for permanent beneficial enjoyment of either the foundation or the land in which the same is imbedded. 26. In English law the general rule is that what is annexed to the freehold becomes part of the realty under the maxim quidcquid plantatur solo, solo cedit. This maxim, however, has no application in India. Even so, the question whether a chattel is imbedded in the earth so as to become immovable property is decided on the same principles as those which determine what constitutes an annexation to the land in English law. The English law has evolved the twin tests of degree or mode of annexation and the object of annexation. 27. In Wake V. Halt (1883) 8 App Cas 195 Lord Blackburn speaking for the Court of Appeal observed: "The degree and nature o....
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....f the house. They have no separate existence from the house. Articles attached that do not form part of the house such as window blinds, and sashes, and ornamental articles such as glasses and tapestry fixed by tenant, are not affixtures. 31. Applying the above tests to the case at hand, we have no difficulty in holding that the manufacture of the plants in question do not constitute annexation hence cannot be termed as immovable property for the following reasons: (i) The plants in question are not per se immovable property. (ii) Such plants cannot be said to be "attached to the earth" within the meaning of that expression as defined in Section 3 of the Transfer of Property Act. (iii) The fixing of the plants to a foundation is meant only to give stability to the plant and keep its operation vibration free. (iv) The setting up of the plant itself is not intended to be permanent at a given place. The plant can be moved and is indeed moved after the road construction or repair project for which it is set up is completed. It can be seen that the Hon. Supreme Court has reiterated the same principles as were seen in the earlier decision of (T.T.G. Industries Ltd. v. CCE, (2004) 4....
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.... is whether the paper making machine can be sold in the market. The Tribunal has found as a fact that it can be sold. In view of that finding, we are unable to uphold the contention of the appellant that the machine must be treated as a part of the immovable property of the company. Just because a plant and machinery are fixed in the earth for better functioning, it does not automatically become an immovable property." 38. Reliance was placed by Mr. Bagaria upon the decision of this Court in Quality Steel Tubes (P) Ltd. v. Collector of Central Excise, UP - 1995 (75) E.L.T. 17 (S.C.) = 1994 (12) TMI 75 - SUPREME COURT OF INDIA and Mittal Engineering Works Pvt. Ltd. v. CCE - 1996 (88) E.L.T. 622 (S.C.) = 1996 (11) TMI 66 - SUPREME COURT OF INDIA. In Quality Steel Tubes (P) Ltd. v. Collector of Central Excise, UP - 1995 (75) E.L.T. 17 (S.C.) = 1994 (12) TMI 75 - SUPREME COURT OF INDIA this Court was examining whether "the tube mill and welding head" erected and installed by the assessee for manufacture of tubes and pipes out of duty-paid raw material was assessable to duty under residuary Tariff Item 68 of the Schedule being excisable goods. Answering the question in negative this Co....
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....nd installation of mono vertical crystallisers was held no/ dutiable under the Excise Act. This Court observed that: [Mittal Engg. Works (P) Ltd. case [(1997) 1 SCC 203 : (1996) 88 EL T 622] = 1996 (11) TMI 66 - SUPREME COURT OF INDIA]. SCC p. 208, para 10] "10. ......The Tribunal ought to have remembered... that the record showed that mono vertical crystallisers had, apart from assembly, to be erected and attached by foundations to the earth and, therefore, were not, in any event marketable as they were." This decision also, in our opinion, does not lend any support to the case of the assessee in these appeals as we are not dealing with the case of a machine like mono vertical crystallisers which is permanently embedded in the structure of a sugar factory as was the position in Mittal Engg. Works (P) Ltd. case [(1997) 1 SCC 203 : (1996) 88 EL T 622] = 1996 (11) TMI 66 - SUPREME COURT OF INDIA]. The plants with which we are dealing are entirely over ground and are not assimilated in any structure. They are simply fixed to the foundation with the help of nuts and bolts in order to provide stability from vibrations during the operation. 42. So also in T.T.G. Industries Ltd. v.....
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....Courts have evolved the term 'immovable property' when faced with the question of what constitutes movable and immovable property. Though not issued for the purposes of the GST Act, we may as well mention herein the reference by the Hon. Bombay High Court in M/s. Bharti Airtel Ltd. (Earlier known as Bharti Tele-Ventures Ltd.) v. The Commissioner of Central Excise (2014 SCC OnLine Bom 907 : (2015) 77 VST 434) = 2014 (9) TMI 38 - BOMBAY HIGH COURT with regard to a Circular being issued by the Central Board of Excise & Customs in a decision of the same Hon. Bombay High Court - "(i) In the decision of the Division Bench of this Court in the case of "Commissioner of C.Ex., Mumbai-IV Vs. Hutchison Max Telecom P.Ltd., (2008 (224) E.L.T. 191 (Bom.)", = 2007 (8) TMI 6 - HIGH COURT, BOMBAY the issue which fell for consideration of the Division Bench inter alia was pertaining to transmission tower set up by the assessee and whether the setting up of the towers amounted to manufacture as the towers being a new product with a distinct name, characteristics and use and is distinct from the components used in the manufacture as contended on behalf of the Revenue. The Division Bench after making ....
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..... The Learned Tribunal re-examining the various aspects of what is described as determination of levy of duty of base station, noted that the appellant is engaged in providing Mobile Telecommunication Service (MTS) and is based on global system for mobile communication (GSM). The infrastructure for GSM is similar to other networks. The Tribunal then set out the various infrastructure required for GSM and noted that GSM Architecture consists of Radio Station Sub Systems (constitution of MS, BTS, & BSCs) which are networked with the operation support subsystem (constitued MSCs) which networked with the Public network. The entire sub systems of BTSs and BSCs or MSCs and the number of constituents would depend on the Geographical area covered by the Cellular Network and there is no fixed designation numbers to constitute a component of transmission apparatus. It is not necessary to set out the other facts in detail considering the the Tribunal has in extenso set out the facts. The Tribunal relying on para 20 in the case of Triveni Engineering & India Ltd. (supra) on the test of marketability, held that the so called BTS/BSC site erected, installed and commissioned by the contractors of....
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....ibunal noted that revenue does not contest or dispute the fact that whenever BTS/BSC site has to be relocated, all the equipments like BTS/BSC, Microwave Equipment, batteries, control panels, air conditioners, UPS, tower antennae are required to be dismantled into individual components, then they are to be moved from the existing site and reassembled at new site. This involves damages to certain parts like cable trays, etc. which are embedded/fixed to the Civil structure as also the BTS microwave equipment itself. All the components of the new product cannot be shifted as an illustration the room housing the equipment. This act of dismantling from the permanent site would render such goods not marketable. Apart from that the goods cannot be re-erected as in the previous place as the requirement of each place is different. Further, from the statement of Narayan as set out in the order of the Commissioner, it may be noted that he had stated that regarding installation of BTS the designing team after survey identified the location as per the requirements of the local coverage needs, determining the shelter location, fabrication of I-beam and pole location. It may be possible for us to....