2024 (10) TMI 1245

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....equest and with the consent of the learned Counsel for the parties. 3. The Petitioner, by instituting this Petition, has sought for following substantive reliefs:- "(a) this Hon'ble Court be pleased to declare that exclusion (iii) to Explanation to section 17 of the CGST Act is ultra vires to the provisions of the CGST Act and is liable to be struck down; (b) In the alternative, this Hon'ble Court be pleased to read down exclusion (iii) to Explanation to section 17 of the CGST Act to not be applicable in case of service providers; (c) this Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction for calling for the records of the present case and ....

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....o be applied'. He submitted that the impugned orders made by the Advance Ruling Authority and the Appellate Authority seem to have applied that explanation inter alia to sub-Clause (d), which is impermissible. He further submitted that from the discussion in the impugned orders, it is apparent that the impact of the functionality test has not been considered. 6. Mr Nankani accordingly submitted that this is a fit case in which the orders made by the Advance Ruling Authority should be set aside, and the matter remanded to the Advance Ruling Authority for fresh consideration after giving the Petitioner liberty to submit additional material to consider the matter from the perspective of the functionality test. 7. Mr Mishra, learned Counsel f....

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.... in sub-Clause (d) cannot be read as 'and'. Further, the Court has explained that the explanation to Section 17 (5) would apply only to sub-Clause (c), which uses the expression 'plant and machinery' and not to sub-Clause (d); (ii) The issue of whether a building is a plant is a question of fact. This has to be determined by applying a functionality test; 11. In this case, we have examined the impugned orders made by the Advance Ruling Authority and the Appellate Authority. We must note that these authorities did not have the benefit of the Hon'ble Supreme Court's judgment dated 3 October 2024 in Civil Appeal No. 2948 of 2023. Therefore, it appears that the explanation to Section 17 (5) of the CGST Act was presumed to apply to sub-Clau....