2010 (6) TMI 214 - AT - Service Tax

Stay Cenvat Credit - the Cenvat credit claimed by the appellant on tower and parts thereof is concerned, learned Commissioner negated claim of the appellant in para 29(a) of the order holding that not to be capital goods. According to him the items to be eligible to cenvat credit as capital goods should be covered under Chapters 82, 84, 85, 90, 68.02 and sub heading No. 6801.10 of the First Schedule to the Central Excise Tariff Act, 1985. Held that impugned item embedded to earth and become immovable and not covered as inputs. Thus prima facie case for not made out total waiver.

Issues Involved:
1. Admissibility of Cenvat credit on towers and parts thereof.
2. Admissibility of Cenvat credit on pre-fabricated buildings.
3. Consideration of towers and parts as capital goods or inputs.
4. Analysis of relevant legal precedents and their applicability.

Detailed Analysis:

1. Admissibility of Cenvat Credit on Towers and Parts Thereof:
The adjudicating authority examined whether Cenvat credit is admissible on towers and parts thereof. The Commissioner concluded that these items do not qualify as capital goods because they are not covered under the specified tariff entries (Chapters 82, 84, 85, 90, 68.02, and subheading 6801.10 of the First Schedule to the Central Excise Tariff Act, 1985). Additionally, since the towers are fixed to the earth and become immovable property, they do not meet the criteria for capital goods. The Commissioner further held that the tower and its parts, even in CKD or SKD condition, do not fall under Chapter heading 7308, and thus, are not eligible for Cenvat credit. The tower is primarily a structural support and not directly used to provide output service, disqualifying it from being considered capital goods.

2. Admissibility of Cenvat Credit on Pre-Fabricated Buildings:
The adjudicating authority addressed this issue by stating that pre-fabricated buildings, which provide shelter for transmission devices, are not used for providing telecom services and therefore do not qualify as capital goods. Similarly, these buildings cannot be considered inputs for the same reasons applied to towers and their parts.

3. Consideration of Towers and Parts as Capital Goods or Inputs:
The appellant argued that if towers are not considered capital goods, they should be classified as inputs. However, the Commissioner rejected this claim, referencing the Cenvat Credit Rules, 2004, and the Bombay High Court's decision in CCE v. H Max Telecom Pvt. Ltd., which held that towers, once installed, cease to be movable goods and thus do not qualify for Cenvat credit as inputs. The appellant's reliance on previous Tribunal decisions and the argument that towers and pre-fabricated buildings are essential inputs for providing cellular services were also countered by the Revenue, emphasizing that capital goods must be excisable and movable.

4. Analysis of Relevant Legal Precedents and Their Applicability:
The Revenue cited the Apex Court's decision in Maruti Suzuki Ltd. v. CCE, Delhi, and the Larger Bench decision in Vandana Global Ltd. & Others v. CCE, which clarified that capital goods must be excisable and movable. The appellant's argument that the Vandana Global decision does not apply to service tax was noted, but the Tribunal found that the principles laid down in Maruti Suzuki Ltd. apply to service tax due to the commonality of the Cenvat Credit Rules, 2004. The Tribunal also noted that the stay orders granted in previous cases were not precedents and could be reconsidered based on the evolving legal landscape.

Conclusion:
The Tribunal concluded that the appellant had not established a prima facie case for total waiver of pre-deposit. The appellant was directed to make a pre-deposit of Rs. 5 crores within eight weeks, with the realization of the balance demand stayed until the disposal of the appeal. The Tribunal emphasized the need to protect the interest of the revenue while considering the appellant's arguments and the relevant legal precedents.

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