2020 (6) TMI 493 - AT - Service Tax

CENVAT Credit - input/capital goods - tower and shelter - input service used for providing telecommunication services/passive infrastructure - HELD THAT - The issue has been settled by this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX-GURGAON VERSUS BHARTI INFRATEL LIMITED 2019 (2) TMI 1736 - CESTAT CHANDIGARH where it was held that assessee-appellant are entitled to avail cenvat credit on items, towers, shelter parts thereof being input used for providing output service. Credit allowed - appeal allowed - decided in favor of appellant.

Summary

Issues involved: Determination of entitlement to avail credit on tower and shelter under Rule 2(k) of Cenvat Credit Rules, 2004, and entitlement to avail credit on input service used for providing telecommunication services/passive infrastructure under Rule 2(l) of Cenvat Credit Rules, 2004.

Analysis:

Issue 1: Entitlement to credit on tower and shelter under Rule 2(k) of Cenvat Credit Rules, 2004
The Tribunal considered the settled issue from a previous case involving M/s Bharati Infratel Limited where it was observed that towers and shelters, being bolted or fastened structures for stability, do not constitute immovable property. The Tribunal emphasized that the installation or assembly of towers and shelters on a foundation does not amount to being "attached to earth" and can be moved without damage. It was further noted that towers and shelters are integral parts of the active infrastructure for telecommunication services, and therefore qualify as "inputs" under Rule 2(k) of the Cenvat Credit Rules. The eligibility to claim credit on such items is determined at the time of receipt of goods, and immovability during later stages does not disentitle the appellant from availing credit. The Tribunal concluded that the appellant is entitled to avail Cenvat credit on towers and shelter parts as inputs used for providing output services, following the precedent set in the M/s Bharati Infratel Limited case.

Issue 2: Entitlement to credit on input service used for providing telecommunication services/passive infrastructure under Rule 2(l) of Cenvat Credit Rules, 2004
The Tribunal's decision primarily focused on the entitlement to credit on towers and shelters, and the discussion did not explicitly address the entitlement to credit on input services used for providing telecommunication services or passive infrastructure under Rule 2(l) of the Cenvat Credit Rules. However, since the Tribunal allowed the credit on towers and shelters as inputs for providing output services, it can be inferred that the appellant would also be entitled to avail credit on input services used for the same purpose, as both are essential components of the telecommunication service provision.

In conclusion, the Tribunal, in line with the precedent established in the M/s Bharati Infratel Limited case, held that the appellant is entitled to avail Cenvat credit on towers and shelter parts as inputs used for providing output services. The appeal was allowed, and consequential relief, if any, was granted to the appellant.