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TMI Blog2014 (12) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... ings/shelters which were claimed by the assessee to be 'inputs' used for the purpose of providing telecom service (output service) during the period from 10-9-2004 to 30-9-2006. The penalty was imposed under Rule 15(1) of the Cenvat Credit Rules, 2004 on the ground that the above credit, though not admissible, was irregularly taken and utilized. 2. After hearing both sides, we note that, for the present purpose, the learned counsel has laid focus on limitation. As regards the admissibility of Cenvat credit on the aforesaid items, the learned Commissioner (AR) has brought on record a copy of Final Order No. A/1 & 2/2012/CSTB/2012 C-I, dated 6-1-2012 which was passed by a Coordinate Bench at Mumbai in the case of M/s. Bharati Airtel Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is context, the learned counsel further points out that, in spite of this finding, the learned Commissioner disallowed Cenvat credit on the ground that the towers were not "goods". Nevertheless, according to the learned counsel, the above finding of the adjudicating authority would go to support the plea of bona fide belief which is said to have been held by the appellant during the material period. (c) There was no room for any doubt during the said period with regard to the appellant's right to avail Cenvat credit on the towers and parts thereof or on the prefabricated buildings, it was only with the issuance of Circular No. 137/315/2007-CX.4, dated 26-2-2008 by the C.B.E. & C. that the whole controversy erupted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as contended that the entire demand of duty in this case is time-barred and hence, the appellant is entitled to total waiver and stay. 4. The learned Commissioner (AR) submits that any plea of bona fide belief cannot be raised by the appellant on the strength of circulars and decisions issued/rendered after the period of dispute. It is further pointed out that no such plea was raised in the reply to show cause notice in the relevant context. There was no ambiguity whatsoever in the relevant legal positions during the period of dispute. The provisions of Rule 2(k) [definition of 'input'] and Rule 2(1) [definition of 'input service'] have always been clear and there is no room for any doubt. The Board's Circular just sought to clarify t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the question of fact. On this universally accepted legal tenet, we are constrained to hold that the plea of bona fide belief is not tenable at this stage. Whether the appellant held a bona fide belief is a question of fact, but this fact was not pleaded in the context of challenging the invocation of extended period of limitation. This apart, prima facie, there was no room for "interpretation of complex legal provisions" because the legal provisions were simple. The appellant is claiming Cenvat credit under clause (ii) of the definition of 'input', which reads as under :- ''(ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol, and motor vehicles, used for providing any output s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued in the end of February, 2008. Prior to that date, there was correspondence between the department and the appellant. The department asked for particulars of the Cenvat credit availed on towers and parts thereof and also on prefabricated buildings. These particulars were furnished by the party. This happened in January, 2008. There is no material on record to show that the appellant pleaded bona fide belief in their correspondence with the department. As regards ST-3 returns, we agree with the learned counsel that the format of return requires only the amount of Cenvat credit availed by the assessee during the period of return and does not require item-wise break up. However, every return was accompanied by a declaration. The asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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