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TMI Blog2016 (9) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... 9464/13 - M/88911/16/STB - Dated:- 2-8-2016 - Mr. M.V. Ravindran, Member (Judicial) and Mr. C.J. Mathew, Member (Technical) Shri Atul Nanda, Sr. Advocate with Shri Sanjay Agarwal, Advocate for appellant Shri D. Nagvenkar, Addl. Commr (AR) for respondent ORDER The instant application is for seeking rectification of mistake in Final Order dated 22.08.2014 passed by the Tribunal, by which the appeal of the appellant was allowed with consequential reliefs. In the said Final Order, it was held that the appellant is not a Cellular Phone Service Provider / Telecom Operator , and the Cenvat Credit of duty paid on Towers and BTS Cabins cannot be denied to them, as the towers and the cabins are Passive Telecom Infrastructure used by the appellant as inputs for providing output service namely Business Auxiliary Service . 2. In this application for rectification of mistake, the Appellant Company is neither raising any issue on being aggrieved by any submission or finding recorded in the Final Order, nor is it seeking review of the said Final Order. The limited contention of the applicant as recorded in this rectification of mistake application is as follows- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, and (ii) for such other or further order/s as deemed fit and proper. 3. The Ld. Senior Counsel for the appellant submits that there is no dispute on the fact that these written submissions dated 17.07.2014 were also served in the office of Departmental Representative. The legal issue on which findings are sought, was also part of the earlier written submissions dated 11.07.2014 tendered on behalf of the appellant before commencing arguments in support of the appeal. The issue was argued and during the course of hearing the compilation of aforesaid precedents was tendered in support of the arguments. It is submitted that therefore, non-consideration / not recording any finding on the above issue though permitted to be raised and argued before the Tribunal, was an error apparent from records. The Ld. Senior Counsel appearing for the Appellant has taken us through the findings recorded in the judgments relied upon in the Compilation-II, and also through the relevant findings in this regard recorded in the Order-in-Original. 4. The departmental representative opposed the application and while relying upon the judgment in Rashtriya Chemicals Fertilizers Ltd. Vs Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Rule 3(1) of the Cenvat Credit Rules provides that credit can be taken on the strength of the invoice only after the goods have entered into the premises. This rule can only affect the time of taking the credit, provided the goods falls within the definition of input . He submitted that Duty is paid under a deeming fiction on Towers in unassembled form under CETH 7308.20. However, Tower comes into existence only after the erection of the structural elements at site. Thus, the goods which in this case are angles, channels and other structural elements cease to exist on erection of Towers. Hence, there is no nexus between the goods and the output service (providing right to use of the Towers). The nexus exists between the immovable property erected at site and the output service provided. He relied on para 40 to 47 of State of Andhra Pradesh Vs Bharat Sanchar Nigam Ltd - 2012 (25) STR 321 (AP). He also relied upon Mundra Port and Special Economic Zone Ltd Vs CCE - 2009 (13) STR 178 (Tri Ahd) and Gujarat State Petronet Ltd Vs CCE - 2013 (32) STR 510 (Tri Ahd) . He tried to justify that the Final Order passed by the Tribunal was erroneous. He further submitted that the case law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. In fact the judgment of the Hon ble Bombay High Court in Rashtriya Chemicals Fertilizers Ltd. (supra) records that in the said case the points raised in the ROM Application were not taken in written submissions or during the course of hearing and were neither urged nor argued at the time of personal hearing before the Tribunal. The Hon ble High Court also referred to a judgment of a Division Bench of the Hon ble Bombay High Court in Abhay Industries vs. Union of India, 2011 (269) ELT 330 (Bom.) , wherein it was noted that most of the contentions which have been urged in the written submissions that were filed in respect of the arguments advanced before the Tribunal had not been considered and in that view of the matter the case was remanded. A judgment of the Hon ble Karnataka High Court in Commissioner of Sales Tax vs. Yokogawa Blue Star Ltd., 2010 (19) STR 482 (Kar.) was also relied upon wherein it was held that the Tribunal committed an error in not considering the ground urged by the Appellant before it. None of the other judgments relied upon by the Ld. DR on the issue of maintainability of the ROM Application are applicable in the above peculiar facts of the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e . (v) The Appellant on receipt of these goods takes credit of the Central Excise duty paid on the marketable and movable goods, purchased from the supplier and received for providing the said taxable output service . (vi) Only for providing the taxable output service to the client Telecom Operators , the excisable and duty paid Towers and Pre-fabricated Buildings are then installed at the premises of the Appellant and are actually used for providing the output service. 6.4 In view of the above undisputable position in the peculiar facts of this case, we do not agree with the observations recorded in the Order-in-Original that - . Towers / BTS rooms cannot be considered as excisable goods and no excise duty be charged / recovered. 6.5 We agree with the submission of the Learned Senior Counsel for the Appellant that once at the end of the Supplier the Towers / BTS Cabins are assessed to Central Excise Duty by considering them as excisable goods and the assessed Central Excise Duty has been collected, it is not open for the Central Excise authority at the end of the recipient to question whether the goods are dutiable and excisable, for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable found to be incorrect by resorting to Rule 57E. In this case too, if the Commissioner of Central Excise, Pune was of the view that credit could not be taken for the reason that the duty was not payable, he ought to have advised the Commissioner of Central Excise, having jurisdiction over Shamvik to initiate action under law to ensure that the appropriate authority pronounced that duty was not payable, take action to refund such duty, and thereafter resort to sub-rule (4) of Rule 57R, for ordering appropriate adjustment to vary the credit. None of these steps has been taken. 9 . For the reasons as indicated above, we are of the view that credit was rightly taken. 6.8 In CCE v. U.P. State Sugar Corporation Ltd - 2013 (291) ELT 402 the Tribunal observed as under- 4 . The Cenvat credit, in question, had been taken by the respondent on the basis of an invoice issued by M/s. Jyoti Ltd. for repair of the rotor assembly. It is well settled that repair activity does not amount of manufacture and, as such, no duty should have been charged from M/s. Jyoti Ltd. on the repair of rotor assembly. But still when the department has collected duty from M/s. Jyoti Ltd. on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be allowed as MODVAT/CENVAT credit to be utilized for payment of duty on the final product. It also emerges from the cited decisions that questions like whether the input is dutiable, whether any element of cost is includable in the assessable value of the input etc. cannot be agitated at the end of manufacturer of the final product. In the result, the impugned order is set aside and these appeals are allowed. 6.11 The Division Bench of the Hon ble Bombay High court in CCE v. Nestle India Ltd - 2012 (275) ELT 49 (Bom.) was pleased to hold that- 2 . A common question is involved in all these appeals. The question is whether; if, excise duty is levied on an assessee at place A and Modvat credit is sought to be availed of at place B , it is open to the Authorities at place B to deny credit on the ground that no duty was payable at place A . 3. We have accordingly re-framed question no. 4 at the time of admission of the appeals as above in all these cases. The common facts are that job works were undertaken at one place outside Goa and excise duty was paid on the goods before removing them from that place. These goods were brought to Goa and the factory owner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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