2017 (7) TMI 723 - AT - Service Tax

CENVAT credit - to discharges service tax liability under the category of Advertising Agency Services - structural steel used for fabrication of unipoles - case of the Revenue that the unipole which is fabricated is not goods and is an immovable property, so CENVAT credit cannot be allowed - whether the appellant is eligible to avail CENVAT credit of Central Excise duty paid on structural steel used for fabrication of unipoles? - Held that - reliance placed in the case of Uni Ads Ltd Vs CCE, Cus & ST Hyderabad 2015 (11) TMI 1349 - CESTAT BANGALORE , where it was held that assessee is not eligible to avail CENVAT credit on the structural steel used for fabrication and erection of unipoles for display of hoardings and advertisements - the appellant is not eligible to avail the CENVAT credit of Central Excise duty on structural steel used for fabrication and erection of unipoles. Extended period not invocable - demand upheld for the limitation period of one year from the date of issue of show-cause notice along with interest, the demand beyond the period of limitation is liable to be set aside. Penalty - Held that - Since the issue involved in this case was in litigation, the question of visiting the appellant with penalty does not arise. Accordingly, the penalty is set aside. Appeal allowed - decided partly in favor of appellant.

Summary

Issues Involved:
Whether the appellant is eligible to avail CENVAT credit of Central Excise duty paid on structural steel used for fabrication of unipoles.

Analysis:
The appeal in question is against an order-in-original dated 21/08/2012. The central issue is whether the appellant can claim CENVAT credit on structural steel used for unipole fabrication. The appellant argues that the steel is used for displaying advertisements on unipoles, falling under Advertising Agency Services, making them eligible for credit. However, the Revenue contends that unipoles are immovable property, thus disallowing the credit. Both lower authorities upheld the denial of credit, citing the extended period due to alleged suppression of facts. The show-cause notice from 21.11.2008 invoked the extended period for wrong CENVAT credit availment during January 2007 to July 2008.

Upon review, it was noted that the issue of CENVAT credit on structural steel has been addressed in various judgments, including a recent one by the Tribunal. The Tribunal ruled that the appellant cannot claim credit for steel used in unipole fabrication for advertisements. The argument against the extended period was supported, as the issue was debatable, making the invocation of extended period questionable. The judgment referenced a case involving Bharti Airtel Ltd., highlighting the criteria for goods to qualify as capital goods for CENVAT credit eligibility.

The impugned order was upheld within the one-year limitation period from the show-cause notice date, with interest. However, demands beyond the limitation period were set aside. Since the issue was litigated and decided by the Tribunal previously, no penalty was imposed on the appellant. Therefore, the penalty was set aside, and the appeal was disposed of accordingly.