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2016 (9) TMI 141 - AT - Service TaxRectification of mistake maintainability CENVAT credit business auxiliary services towers BTS cabins inputs Passive Telecom Infrastructure Held that - once at the end of the Supplier the Towers / BTS Cabins are assessed to Central Excise Duty by considering them as excisable goods and the assessed Central Excise Duty has been collected, it is not open for the Central Excise authority at the end of the recipient to question whether the goods are dutiable and excisable, for the purpose of denying cenvat credit of such duty collected by the department. Any subsequent determination of the issue as to whether or not such duty paid goods were excisable or dutiable can only be decided at the end of the Supplier unit where the initial assessment had taken place and the Central Excise Duty was levied, assessed and collected. In this application for rectification of mistake there is no scope and jurisdiction to sit in appeal over the Final Order rectification of mistake allowed decided in favor of appellant.
Issues Involved:
1. Rectification of Mistake (ROM) in the Final Order dated 22.08.2014. 2. Entitlement to Cenvat Credit of duty paid on "Towers" and "BTS Cabins". 3. Consideration of specific submissions and precedents cited by the appellant. Detailed Analysis: 1. Rectification of Mistake (ROM) in the Final Order dated 22.08.2014: The appellant sought rectification of the Final Order dated 22.08.2014, which allowed their appeal with consequential reliefs. The appellant claimed that specific submissions made in their written submissions dated 17.07.2014 were not reflected in the Final Order. The Tribunal acknowledged that the written submissions were part of the record and had been served to the Departmental Representative. The Tribunal found that the non-consideration of these submissions constituted an error apparent from the record, warranting rectification. 2. Entitlement to Cenvat Credit of duty paid on "Towers" and "BTS Cabins": The appellant argued that the "Towers" and "BTS Cabins" were classified under specific Central Excise Tariff Headings and were assessed to Central Excise Duty by the supplier. The Tribunal noted that these goods were excisable and dutiable, and the duty was paid by the supplier without any revision or refund. The Tribunal found that the appellant, being a "Business Auxiliary Service Provider" and not a "Telecom Operator," used these goods as inputs for providing output services. The Tribunal held that the appellant was entitled to Cenvat Credit of the duty paid on these goods, as they were used for providing taxable output services. 3. Consideration of specific submissions and precedents cited by the appellant: The appellant cited several judgments to support their claim that the excisable and duty-paid goods should not be denied Cenvat Credit. The Tribunal reviewed these judgments and found them persuasive. The Tribunal referred to the following key judgments: - CCE v. MDS Switchgear LTD., 2008 (229) E.L.T. 485 (S.C.): The Supreme Court held that the recipient of inputs is entitled to take credit of the duty paid by the supplier, and the quantum of duty cannot be contested by the officers in charge of the recipient unit. - Owen Bilts Ltd v. CCE, Pune, 1998 (101) ELT 642: The Tribunal held that credit could not be restricted by the authority having jurisdiction over the recipient of the inputs. - CCE v. U.P. State Sugar Corporation Ltd, 2013 (291) ELT 402: The Tribunal held that Cenvat Credit cannot be denied without revising the assessment at the end of the supplier. - CCE v. Hylite Cables, 2007 (212) ELT 284: The Tribunal held that credit was rightly taken as there was no revenue loss and the situation was revenue neutral. - Treadsdirect Ltd v. CCE, Calicut, 2012 (286) ELT 583: The Tribunal held that any duty actually paid on input must be allowed as Cenvat Credit. - CCE v. Nestle India Ltd, 2012 (275) ELT 49 (Bom.): The Bombay High Court held that it is not permissible to deny Modvat credit on the ground that no duty was payable at the place of the supplier. The Tribunal concluded that the appellant was entitled to Cenvat Credit of the duty paid on the "Towers" and "BTS Cabins," as the goods were used for providing taxable output services. The application for rectification was allowed, and the Tribunal recorded its findings on the issue raised by the appellant. Conclusion: The Tribunal allowed the application for rectification of mistake, acknowledging that the appellant's submissions and cited precedents were not considered in the Final Order. The Tribunal held that the appellant was entitled to Cenvat Credit of the duty paid on the "Towers" and "BTS Cabins," as these goods were used for providing taxable output services. The Tribunal's findings were based on the established legal principles and precedents cited by the appellant.
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