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TMI Blog2019 (6) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... ngal Appellate Authority for Advance Ruling, constituted under Section 99 of the West Bengal Goods and Services Act, 2017, within a period of thirty days from the date of communication of this Ruling, or within such further time as mentioned in the proviso to Section 100 (2) of the GST Act. Every such Appeal shall be filed in accordance with Section 100 (3) of the GST Act, and the Rules prescribed thereunder, and the Regulations prescribed by the West Bengal Authority for Advance Ruling Regulations, 2018. 1. Admissibility of the application 1.1. The Applicant, stated to be leasing out cranes and equipment and locomotives, provides diesel-hydraulic locomotives to several companies for placement/shunting of rakes/wagons/oil tankers from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under section 97 (a) & (b) of the GST Act. 1.4. The concerned officer from the Revenue submits that the question raised in the application is not pending or decided in any proceedings of the GST Act. As such, he does not object to the admissibility of the application. The application is, therefore, admitted. 2. Submission of the Applicant 2.1 The Applicant submits that she supplies cranes and equipment on monthly rental basis and charges GST @ 18%, the service is classified as 'Leasing or rental services concerning construction machinery and equipment with or without operator' (SAC 997313). Likewise, she leases out diesel-hydraulic shunting locomotive inter alia to M/s. Damodar Valley Corporation, Andal, Burdwan (hereinafter the DVC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r example, the lessor of transport equipment with or without operator may provide the recipient complete operational control. He provides the equipment in the custody and possession of the recipient, who can employ it whenever and wherever he needs it. On the other hand, the recipient may hire the equipment for a specific activity. The supplier may retain a good deal of control over the equipment and may be required to perform activities, the scope of which is defined by the purpose for which the recipient has hired the equipment. The two contracts are different. The former is plain leasing and renting contract. The latter is a complex one. The supplier is not only providing the equipment on lease but also performing the activities for whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary workforce for operation and maintenance of the Loco and shall be responsible for the safety of her men at the worksite. She will also bear the cost of insurance of the Loco and her personnel. 4.3 Railway pushing and towing service (SAC 996731), according to the Explanatory Notes to the Scheme of Classification, refers to the service of moving railway cars and wagons between the terminal yards, industrial sidings and the like. It is grouped under 'Supporting Services for Railway Transport'. The Work Order includes all aspects of the above service. Therefore, unless the railway tracks under the administration of the DVC and the transportation of coal etc. to the DSTPS Siding from Andal Railway Station is excluded from railway transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A tramway wholly within a municipal area; and (ii) Lines of rails built in any exhibition ground, fair, park, or any other place solely for the purpose of recreation." Furthermore, the Railways Act, 1989, distinguishes between, but covers, Government Railway under section 2(20) and Non-Government Railway under section 2(25) of the Act. It, therefore, includes scope for railways under both Government and private administrations, provided it involves public carriage of passengers or goods. Whether the phrase "public carriage of passengers or goods" prevents a private siding from being included in the definition of 'railways' has repeatedly come up for judicial scrutiny. The courts generally held that the phrase 'public carriage of passen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4.6 Transportation of coal from Andal Station to DSTPS Siding is, therefore, railway transport, and the service of moving empty or loaded wagons/rakes at DSTPS Siding is nothing but the supporting service of railway pushing and towing (SAC 996731). It describes the nature of the Applicant's service more specifically than 'leasing or rental services concerning transport equipment, including containers with or without operator (SAC 997311 The communication from the East Central Railway referred to above, which deals with the GST applicable to different services that the Railways offer to the customer, is not relevant in the present context. Based on the above discussion, we rule as under: RULING The Applicant's service to the DVC, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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