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TMI Blog2017 (1) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, ST/307/2010, ST/436/2011, ST/488/2011, ST/582/2011, ST/690/2011, ST/413/2012 - A/10139-10147/2017 - Dated:- 20-1-2017 - Dr. D.M. Misra, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) Shri Jigar Shah, Advocate for the appellant Shri J. Nagori, A.R. for the Respondent-Revenue ORDER Per Dr. D. M. Misra As all these appeals filed against respective OIOs/OIAs are involving common issues, these are taken up together for disposal. 2. Briefly stated facts of the case are that the appellants M/s Fascel Ltd. (later known as Vodafone Essar Ltd.) are provider of Cellular Telephone Services in Gujarat Circle and discharge service tax under the taxable category of Telephone Services . During the period April 2006 to March 2010, the appellants availed CENVAT Credit of Central Excise Duty paid on inputs viz. angles, channels, beams which were used in towers and tower materials, pre-fabricated buildings/shelters, etc. in providing the said output service. Periodical demand notices were issued from time to time for recovery of the Cenvat credit alleging that these towers, towers parts, pre-fabricated buildings/shelters do not fall under the scope of definit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot admissible to the Appellant, the learned Advocate submitted that in the said case, the judgment of Hon'ble Andhra Pradesh High Court in CCE Vs Sai Samhita Storage Pvt. Ltd 2011 (23) STR 341 (AP) though referred by the Bombay High Court, but, it was distinguished and not adopted, whereas, the Hon'ble Gujarat High Court, on the other hand, in Mundra Port's case accepted the principle laid down in Sai Samhita Storage Pvt. Ltd.'s case (supra) and observed that the principle laid down therein is squarely applicable to the facts in issue before the High Court. It is his contention that since the Hon'ble Gujarat High Court in Mundra Port's case has specifically held the issue in favour of the Asessee, hence, the principle laid down by the jurisdictional High Court ought to be followed by the Tribunal instead of the ratio laid down in Bharati Airtel's case. 6. The learned Advocate further submitted that any input which is used for providing output service, namely Telecom service, would definitely come within the scope of the definition of input prescribed under Rule 2(k) of CCR,2004. It is his contention that a somewhat similar question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of binding precedent. It is his contention that the facts and issues involved in Mundra Port's case were altogether different. In that case, credit was availed on cement and steel in providing port service which was sought to be recovered by the department, but in the present case the dispute arose on tower and tower material, in providing telecom service, totally different items and different context. In passing the judgment, the Hon ble Gujarat High Court referred to the judgment of Andhra Pradesh High Court delivered in Sai Samhita's case, and the said case was also analysed by the Hon ble Bombay High Court while, delivering the judgment in Bharti Airtel Limited's case and Hon ble Bombay High Court observed that the facts involved in both the cases are entirely different, hence, not applied the principle laid down in Sai Samhita's case while deciding Bharti Airtel Limited's case . Besides, in the Mundra Port's case, the Hon ble Gujarat High Court had examined the eligibility of the credit on cement steel in the light of the Explanation-2 inserted into Rule 2(k) of CENVAT Credit Rules,2004 with effect from 07.07.2009, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is: whether the Appellant, a service provider of output service viz. Telecom service is eligible to avail CENVAT Credit on various inputs viz. tower and tower parts, pre-fabricated buildings/shelters. Revenue's contention is that on the same issue, the Hon ble Bombay High Court in Bharti Airtel case (supra) and in subsequent cases have consistently observed that CENVAT Credit on towers/tower parts, prefabricated buildings/shelters cannot be considered as input to be admissible to CENVAT Credit. The Appellants, on the other hand, even though fairly accept that the judgment of Hon'ble Bombay High Court in Bharti Airtel's case is against them, submit that the jurisdictional Hon'ble Gujarat High Court in Mundra Port's case, recorded a different reasoning/principle in allowing CENVAT Credit on inputs viz. cement and steel used in the construction of jetty in providing port services, and the same is binding on this Tribunal, in deciding the present issue; it being the Jurisdictional High Court. Resisting the said move of the Appellant, Revenue submits that the judgment of Hon'ble Gujarat High Court in Mundra Port's case, has been in a differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament. And, in Herrington v. British Railways Board [1972 (2) WLR 537] Lord Morris said : There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case. 13. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 14. The following words of Lord Denning in the matter of applying precedents have become locus classicus : Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. *** *** *** Precedent should be followed only so far as it marks the path ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has erred in law in not appreciating that goods which do not fall under the definition of capital goods continue to fall under the definition of input and, therefore, are eligible for credit under the Cenvat Credit Rules, 2004 (d) Whether in the facts and circumstances of the case, the Hon ble Appellate Tribunal was correct and justified in applying the ratio of the Bharti Airtel Ltd. in disallowing the credit to the appellant when the said decision is distinguishable on various counts as argued before the Hon ble Appellate Tribunal (e) Whether the Tribunal committed a fundamental error in not appreciating that shelter/parts of tower and the tower would qualify as inputs under the scheme of the Cenvat Credit Rules, 2004 which are integral to the provision of output service (f) Whether in the facts and circumstances of the case, the Hon ble Appellate Tribunal was correct and justified in holding that the appellant was not entitled to credit of duty paid on tower parts/shelter on the ground that tower/shelter is immovable property and hence, do not qualify as capital goods on inputs as defined under the Cenvat Credit Rules, 2004 (g) Whether in the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such Towers and pre-fabricated buildings/shelters under the Cenvat Credit Rules, 2004 as either capital goods or inputs (p) Whether the Tribunal failed to appreciate that Towers and prefabricated buildings/shelters in common trade parlance are known as parts of base station and are, therefore, liable to be classified under Chapter 85 of the Central Excise Tariff Act and consequently eligible for credit under the Cenvat Credit Rules, 2004 3. To decide the present controversy, it would be necessary to refer to some basic facts. The appellant is inter alia engaged in the business of providing telecom services under the category telecommunication services within the telecom circles of Mumbai. It is the case of the appellant that during the course of its business, it is required to set up various equipments which are integral to, and used for providing such services. Such equipments are essential and an integral part of the telecom service delivery across the world and is the backbone of the telecom service. Such infrastructure includes public switching equipment, transmission equipment and various customer premises equipment. At the heart of the whole infrastructure is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Products case (supra) , a slight variation of the facts, would result in a significant implication and world of difference between conclusions in two cases; disposal of cases by blindly placing reliance on a decision is not proper. Consequently, we do not find merit in the contention of the learned Advocate for the Appellants that the ratio laid down in Bharati Airtel's case by Hon'ble Bombay High Court is in conflict with the judgment of Hon'ble Gujarat High Court in Mundra Port's case, for the apparent reason these judgments are delivered under different factual matrix and circumstances and thus the questions of law framed under Section 35G of CEA,1944 in the said cases are accordingly different. 17. In view of the above, following the law laid down by the Hon'ble Bombay High Court in Bharati Airtel Ltd.'s case (supra) which is applicable to the facts and circumstance of the present case, we are of the opinion that the appellants are not eligible to avail and utilize CENVAT credit on towers, tower parts and pre-fabricated building/shelters. We find that the demand notices in Appeal No.ST/129/2009, ST/137/2009, ST/218/2010, ST/582/2011 are i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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