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2017 (1) TMI 1283 - AT - Service TaxCENVAT credit - towers, towers parts, pre-fabricated buildings/shelters - whether the Appellant, a service provider of output service viz. Telecom service is eligible to avail CENVAT Credit on various inputs viz. tower and tower parts, pre-fabricated buildings/shelters? - Held that - following the law laid down by the Hon ble Bombay High Court in Bharati Airtel Ltd. case 2014 (9) TMI 38 - BOMBAY HIGH COURT which is applicable to the facts and circumstance of the present case, we are of the opinion that the appellants are not eligible to avail and utilize CENVAT credit on towers, tower parts and pre-fabricated building/shelters. The demand notices are issued for normal period and since the issue involved is a pure question of interpretation of law, in our opinion, imposition of penalty is unwarranted and accordingly set aside - decided in favor of appellant.
Issues Involved:
1. Eligibility of CENVAT Credit on towers, tower parts, and pre-fabricated buildings/shelters. 2. Applicability of the principle laid down by different High Courts. 3. Invocation of extended period of limitation and imposition of penalties. Detailed Analysis: 1. Eligibility of CENVAT Credit on Towers, Tower Parts, and Pre-Fabricated Buildings/Shelters: The appellants, providers of Cellular Telephone Services, availed CENVAT Credit on inputs such as towers, tower parts, and pre-fabricated buildings/shelters during April 2006 to March 2010. The Revenue issued demand notices alleging these items do not qualify as inputs under Rule 2(k) of CENVAT Credit Rules, 2004, and being immovable, cannot be considered goods. The Tribunal examined the eligibility of these items for CENVAT Credit and referred to precedents set by the Hon’ble Bombay High Court in Bharti Airtel Ltd. Vs. CCE, Pune-III, which held that CENVAT Credit on such items is inadmissible as they are immovable property and do not qualify as inputs or capital goods. The Tribunal followed this reasoning, rejecting the appellants' claim for CENVAT Credit on these items. 2. Applicability of the Principle Laid Down by Different High Courts: The appellants argued that the Tribunal should follow the Gujarat High Court's decision in Mundra Ports and Special Economic Zone Limited, which allowed CENVAT Credit on cement and steel used in construction for port services. The Tribunal noted that the facts and legal questions in Mundra Ports’ case were different from the present case, involving different inputs and output services. The Revenue contended that there was no conflict between the Gujarat High Court's judgment and the Bombay High Court's judgment in Bharti Airtel Ltd. The Tribunal agreed, emphasizing that the judgments were delivered under different factual matrices and circumstances, and thus the principle laid down in Bharti Airtel Ltd.'s case was applicable to the present case. 3. Invocation of Extended Period of Limitation and Imposition of Penalties: For the appeals filed by M/s Bharat Sanchar Nigam Limited, the Tribunal addressed the issue of whether the demands were barred by limitation. The Tribunal found that in some cases, the demand notices were issued for an extended period, alleging suppression of facts by the appellant. The Tribunal remanded these cases to the original Adjudicating authority for re-examination of evidence to determine if the extended period of limitation was correctly invoked and to reassess the liability of penalties. For demands within the normal period, the Tribunal upheld the demands but set aside the penalties, considering the issue involved a pure question of interpretation of law. Conclusion: The Tribunal concluded that the appellants were not eligible to avail and utilize CENVAT Credit on towers, tower parts, and pre-fabricated buildings/shelters, following the Bombay High Court's judgment in Bharti Airtel Ltd.'s case. The Tribunal remanded certain cases to the original Adjudicating authority for further analysis on the invocation of the extended period of limitation and penalty imposition. The appeals were disposed of accordingly.
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