TaxTMI 
TaxTMI 
2024 (7) TMI 982
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....td] under deposit scheme & also lay a 750 meters new 66 KV S/cable (3+1), 630 mm square aluminium corrugated sheath U/G cable line from 66 KV Palej substation of GEICO to their switchyard at their Palej factory. 4. For the aforementioned requirement of laying a new 66 KV line, GETCO has offered two options viz,- i. either carry out above work from GETCO itself; ii. to do the above work on their own [as per option 3 of GETCO estimate for 1000 KVA] under supervision of GETCO. The applicant chose the second option as mentioned supra. Thus, as per the requirements provided by GETCO, they have to purchase materials for installation of 1000 KVA facility & handover the same to GETCO who will provide installation and supervision service. It will be maintained by GETCO & all the goods and equipment used in the said line which will be installed outside the factory premises will be a property of GETCO. 5. The applicant further states that they purchased the goods/materials from M/s. H M Electrical, Bharuch, Gujarat, the details of which are as under: Particulars Supply of material Installation work Total (Rs.) Basic Value 95.41.500 32,80.750 ....
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..../s 17 (5) of the CGST Act, 2017; • that 17 (5), ibid, blocks ITC in respect of buildings & construction goods and services to the extent capitalized under land and building, but allows ITC on 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; • that the only exception in respect of plant and machinery are,- (i) land, building or any other civil structures; (ii) telecommunication towers; and (iii) pipelines laid outside the factory premises; • that they would like to rely on the below mentioned judgements viz • M/s. Prism Cement Ltd. 2017 (3) TMl 1283-CESTAT New Delhi. • Ms. Calcom Cement India Ltd. 2017 (9) TMI 274 CESTAT New Delhi. • M/s. Hindustan Coca Cola Beverages P Ltd. 2017 (6) TMI 846 CESTAT Ahmedabad. Discussion and findings 13. 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....
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.... to any person on the direction of and on account of such registered person;] [(ba) the details of input tax credit in respect of the said supply communicated to such registered person under section 38 has not been restricted:] (c) subject to the provisions of [section 41 [****]] the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilisation of input tax credit admissible in respect of the said supply; and (d) he has furnished the return under section 39: Provided that where the goods against an invoice are received in lots or instalments, the registered person shall be entitled to take credit upon receipt of the last lot or instalment: Provided further that where a recipient fails to pay to the supplier of goods or services or both, other than the supplies on which tax is payable on reverse charge basis, the amount towards the value of supply along with tax payable thereon within a period of one hundred and eighty days from the date of issue of invoice by the supplier, an amount equal to the input tax credit availed by the recipient shall be 9 [paid by him along with interest pa....
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....be such as may be prescribed, and shall include supplies on which the recipient is liable to pay tax on reverse charge basis, transactions in securities, sale of land and. subject to clause (b) of paragraph 5 of Schedule II, sale of building. [Explanation - For the purposes of this sub-section, the expression "value of exempt supply" shall not include the value of activities or transactions specified in Schedule III, '[except, (i) the value of activities or transactions specified in paragraph 5 of the said Schedule: and (ii) the value of such activities or transactions as may be prescribed in respect of clause (a) of paragraph 8 of the said Schedule.];] (4) A banking company or a financial institution including a non-banking financial company, engaged in supplying services by way of accepting deposits, extending loans or advances shall have the option to either comply with the provisions of sub-section (2), or avail of every month, an amount equal to fifty per cent, of the eligible input tax credit on inputs, capital goods and input services in that month and the rest shall lapse: Provided that the option once exercised shall not be ....
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....anding that a portion of the cost has been paid for by the consumer, shall be and remain the property of the GETCO by whom it is to be maintained. 17. We find that the applicant is seeking a ruling on the eligibility of ITC on capital goods viz cables/wires, equipment viz 750 meters new 66 KV S/Cable (3+1), 630 mm square aluminium corrugated sheath/G cable line for installation of 66 KV feeder bay at sub-station of GETCO, purchased by them. The applicant has further informed that these goods have been capitalized only on the basic value and installation charges; that they will avail credit of the ITC; that they subsequently have to transfer it to GETCO in terms of an agreement on a stamp paper; that the goods will be the property of GETCO. 18. Section 16 of the CGST Act, 2017 which deals with eligibility and conditions for availing ITC [input tax credit] states as follows:- • every registered person shall, be entitled to take credit of ITC charged on any supply of goods or services which are used or intended to be used in the course or furtherance of his business; • that ITC shall be entitled if he is in possession of a tax invoice raised by a suppli....
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....ibid. The applicant further stales that they have capitalized the basic value as capital goods and the tax portion is being availed as ITC. Therefore, it is not hit even by the explanation. As far as 17 (5) (d) is concerned, the applicant states that they are covered by the explanation which defines plant and machinery and that they are also not hit by the three exclusions listed in the explanation, The ITC that the applicant wishes to avail is on capital goods viz cables/wires, equipment viz 750 meters new 66 KV S/Cable (3+1), 630 mm square aluminium corrugated sheath/G cable line for installation of 66 KV feeder bay at sub-station of GETCO. On a specific query raised during the course of personal hearing, it was stated by the representative of the applicant that though these are underground cables, they are not fixed to earth; that they are kept in a duct and can be removed/opened as and when any maintenance is required to be done on these goods. Even on this count, the ITC sought by the applicant is not blocked by sub-sections 17 (5)(c) & (d), ibid. 21. What is left to be examined now is whether the transfer of the service line to GETCO under an agreement, on a stamp paper of....