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TMI Blog2015 (6) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... followed - cenvat credit allowed - impugned orders are unsustainable and liable to be set aside - Decided in favor of assessee. - Appeal Nos. ST/636/2012-Mum & ST/85481/2014-Mum - Final Order Nos. A/1356-1357/2015-WZB/STB - Dated:- 30-4-2015 - M V Ravindran, Member (J) And P S Pruthi, Member (T),JJ. For the Appellant : Shri Gajendra Jain Shri Naresh Thacker, Advs. For the Respondent : Shri D Nagvenkar, Commissioner (AR) ORDER Per: M V Ravindran: These two appeals are disposed of by a common order as the issue raised is the same. 2. These appeals are filed against Order-in-Original No. 33/ST/SB/2011-12 dt. 29.2.2012 and OIO No. 68/ST-II/RS/2013 dt. 31.10.2013. 3. Relevant facts that arise for consideration a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal No. ST/88497, 85862/2014-Mum. It is also their submission that the Revenue's case is also hit by limitation and in the case of Essar Telecom Ltd., there is duplication of demand inasmuch that appellant had availed Cenvat Credit of the capital goods in the first year which was 50% of the duty paid on capital goods and the next 50% in the subsequent financial year which was considered by the department as wrong availment of Cenvat Credit. It is his submission that the first credit taken of the first 50% is itself contested by the department on the ground that the towers which are constructed/erected are immoveable goods and cenvat credit cannot be availed. 5. Ld. AR would submit that the appellants herein had created an immovable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at State Petronet Ltd. 2013 (32) STR 510 (Tri.-Ahmd.) clearly lays down a ratio of 'nexus' for the availment of the Cenvat Credit. He would also read the definition of input services after 1.4.2011 is important. He would also submit that as per the provisions of Section 94, is the empowering Section which grant, power for making Cenvat Credit Rules, has to be read that consumption of inputs or capital goods in the provisions of output services. He would also submit that the facts of the case of Sai Samhita are totally different than the facts in hand in these cases. 6. The Ld. Counsel rejoinder would only submit that as per Section 94 of the Finance Act, 1994, Rules could have been framed for direct consumption of the services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and erection of telecom towers which is in turn is used by them for providing output service under the category of Business Support Services to the various telecom companies. 10. We find that an identical issue came up before the Bench in the case of GTL Infrastructure Ltd. wherein the Bench took a view that appellant therein is eligible for availment of Cenvat Credit on capital goods. We find that the Bench in the case of Reliance Infratel Ltd. (supra) followed the ratio in the case of GTL Infrastructure Ltd. In the case of Reliance Infratel Ltd., we find that the Ld. DR had also cited the judgment of the Hon'ble High Court of Bombay in the case of Bharti Airtel Ltd. The Bench after considering all the submission made by the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2002 (146 E.L.T. 518 (P H)] It can be seen from the above reproduced ratio that the identical issue has been decided by the two judgments of this Tribunal one prior to Bharti Airtel Ltd. of the Hon'ble High Court and one post and the same was held in favour of the assessee. We do not find any reason to deviate from such a view already taken. 11. As regards the arguments put forth by the Ld. AR, we find that the same does not carry the case of the Revenue any further inasmuch, in the case of Tata Teleservices Ltd. (one of us was the member), the issue was the appellants therein were telecom service providers and had constructed/erected the towers on their own and availed Cenvat Credit of the Towers, cabins which was not accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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