2019 (2) TMI 1009

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....s for construction of the said warehouse. The above question is admissible under section 97(2)(d) of the CGST/WBGST Act, 2017 (hereinafter collectively called 'the GST Act). The Applicant declares that the issue raised in the application is not pending nor decided in any proceedings under any provisions of the GST Act. The officer concerned has raised no objection to the admissibility of the Application. The Application is, therefore, admitted. 2. In his written submission the Applicant describes the property under construction as 'Prefabricated Warehousing System' (hereinafter 'the System'). It is being purchased from M/s. Pennar Engineering Building Systems Ltd (hereinafter the Vendor). The Applicant has annexed the literat....

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....that has emerged favours treatment of such property as movable or immovable depending on the extent of annexation to the permanently embedded structure and the object of such annexation. According to the Applicant, if the nature of annexation is such that an item so annexed can be removed without any damage and future enjoyment of that item in a similar capacity is not affected, such an item will not be considered to be immovable property. He refers to the apex court's judgments in Solid & Correct Engineering Works [(2010) 252 ELT 481 (SC)] = 2010 (4) TMI 15 - SUPREME COURT and Sirpur Paper Mills Ltd [97 ELT 3 (SC)] = 1997 (12) TMI 109 - SUPREME COURT OF INDIA. He further submits with illustrations that the warehouse is nothing more t....

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....lude standing timber, growing crops or grass. The Section, however, defines the term "attached to the earth" to mean (a) rooted in the earth, as in the case of trees and shrubs, (b) embedded in the earth, as in the case of walls or buildings, and (c) attached to what is so embedded for permanent beneficial enjoyment of that to which it is attached. The essential character of 'immovable property', as emerges from the above discussion and relevant to the present context is that it is attached to the earth, or permanently fastened to anything attached to the earth, or forming part of the land and not agreed to be severed before supply or under a contract of supply. 4. In Triveni Engineering & Industries Ltd [(2000) 120 ELT 273 (SC)] = 20....

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....hat the machine in question can be moved and has indeed been moved after the road construction and repair project, for which it was installed, is completed. However, if a machine is intended to be fixed permanently to a structure embedded in the earth, the moveable character of the machine, according to the Supreme Court, becomes extinct. In Sirpur Paper Mills Ltd (1997 (12) TMI 109 - SUPREME COURT OF INDIA) the apex court has upheld the decision of the Customs, Excise and Gold Tribunal that a papermaking machine, attached to earth for operational efficiency, cannot be an immovable property merely because it is attached to a foundation embedded in the earth. The test is whether the machine can be dismantled and sold in the market. This j....

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....en a bridge uses more and more pre-fabricated structures, which have obvious benefits in terms of time and cost. Such building blocks should not, however, be confused with the property being built, which is directly associated with the beneficial enjoyment of the land. The warehouse is meant for storage of goods that will lie stacked on the floor. Construction of the floor, its load-bearing capacity and the space it occupies is, therefore, critical to the construction of the warehouse. The System that the Vendor supplies, as transpires from the literature annexed to the Application, does not apparently include any specific description of the floor as a pre-fabricated load-bearing structure. Although the written submission made at the ....

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....Telelinks Ltd [(2018) 97 taxmann.com 564] = 2018 (9) TMI 1646 - AUTHORITY FOR ADVANCE RULINGS, UTTARAKHAND needs to be distinguished in this context. The ld AAR in Uttarakhand has been dealing with mobile towers fixed to a pit with a concrete base. Clearly, the intention is beneficial enjoyment of the mobile tower and not of the concrete base. The mobile tower can, of course, be easily dismantled and fixed elsewhere. The ld AAR has, therefore, treated the mobile tower infrastructure, including the pole, as movable property. In the case of the warehouse, however, the pre-fabricated movable structures do not constitute the property of the warehouse. They are building blocks applied to a civil structure attached to the land to construct a comp....