2016 (4) TMI 549 - AT - Service Tax

Availment of Cenvat credit - Towers and shelters - Held that - by applying the decision of larger bench of this Tribunal in the case of M/s Tower Vision India Pvt. Ltd. 2016 (3) TMI 165 - CESTAT NEW DELHI (LB) the appellant is not entitled to avail the cenvat credit on towers and shelters. Availment of Cenvat credit - HDPE telecom duct etc. - Appellant contended that these items are not in the nature of immovable property after being affixed with the tower and shelters therefore entitled to avail Cenvat credit - Held that - this fact needs to be examined by the adjudicated authority whether the items in question are in nature of moveable or immovable after their utilisation thereof. Therefore remanded back to the adjudicated authority. Demand of Service tax - Invokation of extended period of limitation - Held that - as the issue of availment of Cenvat credit on tower and shelter was disputed and is settled by the larger bench in the case of M/s Vodafone Essar Mobile Services Ltd. on 03.03.2016 therefore the extended period of limitation is not invokable and the demand pertaining to extended period of limitation are set aside. - Appeal disposed of

Summary

Issues:
1. Availment of cenvat credit on towers and shelters
2. Classification of items as movable or immovable for cenvat credit eligibility
3. Applicability of extended period of limitation

Analysis:
1. The appellant appealed against the denial of cenvat credit on towers, shelters, and other items, arguing that towers and shelters are immovable property after installation, hence not eligible for credit. The appellant relied on a decision by the Hon'ble High Court of Bombay in a similar case. The respondent opposed, citing a tribunal decision that denied credit on towers and shelters after fixation. The tribunal found the issue settled by a larger bench and ruled against the appellant's claim for cenvat credit on towers and shelters.

2. Regarding the classification of items as movable or immovable for cenvat credit, the tribunal remanded the matter back to the adjudicating authority. The authority was instructed to examine whether the items in question are movable or immovable after utilization. The tribunal held that the extended period of limitation was not applicable in this case, setting aside the demand related to it and imposing no penalty on the appellant.

3. The tribunal concluded by stating that the demand pertaining to the extended period of limitation was set aside, no penalty was imposed, and the appellant was not entitled to avail cenvat credit on towers and shelters. The matter of the remaining items was remanded back for further examination based on the classification of movable or immovable property, as per the decision of a larger bench. The tribunal disposed of the appeal and the miscellaneous application based on these terms.